https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4266

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC SUIT NO. 77 OF 2013** **APPOLO HOTELS LIMITED…………………………..……………PLAINTIFF** * **VERSUS -** **CHRISTOPHER MBUGGUS………………………………... 1st DEFENDANT** **KIPROTICH CHESIRE……………………….………..…....2ND DEFENDANT** **RICHARD MUIRURI KURIA………………………………..3RD DEFENDANT** **DAVID K. KANDIE…..………………………….……….…..4TH DEFENDANT** **GISIMBA GENERAL ENTERPRISES LIMITED……..…5TH DEFENDANT** **COUNTY LAND REGISTRAR OF LANDS…………….….6TH DEFENDANT** **ATTORNEY GENERAL………………………..……….…….7TH DEFENDANT** **AND** **JOB KIGEN KANGOGO……………………………1st INTERESTED PARTY** **MINNIE JEMUTAI TUBEI …………..…………..2ND INTERESTED PARTY** **JOSEPHINE CHEPKECHEI …………..………..3RD INTERESTED PARTY** **EUNICE WAIRURI KIBERA ……..……..……….4TH INTERESTED PARTY** **JUDGMENT** 1. **Preliminaries** 2. The Judgement of this Honourable Court pertains to the civil case instituted by *Appolo Hotels Limited,* the Plaintiff herein. It was filed against *Christopher Mbuggus Well, Kiprotich Chesire, Richard Muiruri Kuria, David K. Kandie., Gisimba General Enterprises Limited, County Land Registrar, Kwale, the Honourable Attorney General, Alfred Kaibunga Baariu, Job Kigen Kangogo, Minnie Jemutai Tubei, Josephine Chepkechei and Eunice Wairuri Kibera*, the 1st, 2nd, 3rd, 4th, 5th, 6th & 7th Defendants herein by way of Further Amended Plaint dated 28th February, 2023 but amended on 15th February, 2023*.* Subsequently, upon attaining the leave of Court, the 1st, 2nd, 3rd & 4th Interested Parties joined the proceedings and participated actively thereof. 3. Upon filing of the Plaint and service of the Summons to Enter Appearance to the Defendants they filed their documents as follows:- 4. The 1st Defendant filed a Memorandum of Appearance dated and filed on 16th May, 2013 but did not file any defence or any other documents thereafter. 5. The 2nd and 3rd Defendants filed their Memorandum of Appearance and they filed their statement of Defence on 8th October, 2013 and dated 11th September, 2013. 6. The 4th Defendant filed a Memorandum of Appearance and a Statement of Defence dated 19th June, 2015 filed on 22nd June, 2015. 7. The 5th Defendant filed a Memorandum of Appearance and a statement of Defence dated 5th June, 2014 filed on 9th June, 2014. The 6th and 7th Defendants filed a Memorandum of Appearance through the Honourable Attorney - General and filed a Defence on 1st November, 2013 which was dated 16th October, 2013. 8. The 8th Defendant filed a Memorandum of appearance and Defence dated 5th June, 2014 and filed 9th June, 2014. 9. The 9th, 10th, 11th and 12th Defendants filed Defences but which mainly consisted of mere denials. As such, they have totally failed to proof the doctrine of bona fide purchaser for value of the aforesaid sub – divided parcels of Plot Numbers 2062, 2060, 2061 and 2067 without notice of any defect. 10. It is instructive to note that, this Judgement took a long duration to deliver as the Honourable Court for the following reasons. Firstly, arising from the convoluted intricacies on the subject matter, the Court felt it wise to invoke the provision of Section 173 ( 1 ) of the Evidence Act, Cap. 80, seeking the professional and expertise opinion from the offices of the Directorate of Criminal Investigation (DCI), - Anti Fraud Land Unit headquarters, Nairobi. Secondly, unfortunately, despite of the Court making several correspondences to the said investigation offices, there was never any responses elicited. A very sad state of affairs indeed. Nonetheless, rather than taking an arm chair rest nor revert into a blame game, I recalled what the Hong Kong Marshall Art Movie Hero Bruce Lee once stated describing water flowing and upon hitting an object or rock:- ***“Be like water making its way through cracks. Do not be assertive but adjust to the object/rock and you shall find around or through it……”*** Furthermore, in the given circumstances, the Court sought refuge and guidance from the Legal Maxim under the provision of Article 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010 – ***“Justice Delayed is Justice Denied”*** and “***Litigation must come to an end***” and wisely opted to proceed on to deliver the Judgement on its own merit whatsoever. 1. **Court directions before the hearing** 2. On 11th May, 2017, after confirming that the Plaintiffs had complied with Order 11 of the Civil Procedure Rules 2010, the Honourable Court set the hearing date on 10th July, 2017. The Plaintiff called its witness and closed his case on 10th July, 2017 and the Defendants called their witnesses on different dates. 3. **The Plaintiff’s case** 4. From the pleadings before court, the facts were that at all times material to this suit, the Plaintiff was, and still is, the registered proprietor of the suit property – Land Reference Numbers KWALE/GALU KINONDO/394. Sometime in March, 2012 or thereabouts, the 2nd, 3rd, 4th and/or 5th Defendants by themselves, their agents, servants and/or employees trespassed upon the suit property without the Plaintiffs consent, approval or permission and started constructing thereon a permanent wall thereby misappropriating and/or misusing the Plaintiff's property. 5. The 2nd, 3rd, 4th and 5th Defendants in collusion/connivance with the 6th Defendant and/or his officers fraudulently and illegally purported to effect transfers in respect of the suit property and thereafter clandestinely proceeded to subdivide the suit property in at least 12 sub - divisions and further unlawfully and illegally caused the said sub-divisions to be registered in the names of third parties (namely all the Defendants). The 1st, 2nd, 3rd, 4th and 5th Defendants were not at any time material to this suit authorized or empowered to sell or agree to sell, transfer or deal in any other manner howsoever with the suit property. 6. The Further Amended Plaint listed the following as particulars of fraud and illegalities committed by the Defendants that: - 7. **At the time of the purported transfers and the sub-division and subsequent transfer to third parties by the Defendants, the said suit property was the property of the Plaintiff whose consent/approval was absolutely critical before such sale or transfer or any other conveyance of whatever nature could be proceeded with.** 8. **The 6th Defendant and/or his officers negligently and/or frequently and/or unlawfully purported to sub-divide and register transfers in respect of the suit property in contravention of the law.** 9. **Without prejudice to the foregoing, the 1st, 2nd, 3rd, 4th and 5th Defendants clandestinely and/or deceitfully and/or through gross misrepresentation to the 6th Defendant caused transfers to be registered in respect of the suit property and thereafter proceeded to sub-divide the suit property into at least 12 sub-divisions and further caused the said sub-divisions to be registered in names of third parties when they knew or ought to have known that the 6th Defendant did not have the capacity to do the same without the Plaintiff's knowledge, consent and/or approval.** 10. **The 6th Defendant abused his statutory duty as ordained by law when by the acts of his officers at the Lands Registry he purported to effect and/or register sub-divisions and thereafter register transfers to third parties against the Plaintiff's title and which title was still in possession of the Plaintiff and without the authority and/or consent of the Plaintiff as the registered owner.** 11. According to the Plaintiff, the 4th and 5th Defendants as at the date of filing this suit were in the process of constructing permanent structures in sections of the suit property without the Plaintiff's consent or approval, thereby misusing the suit property. The 1st, 2nd, 3rd, 4th and 5th Defendants despite demand from the Plaintiff failed refused and/or neglected to vacate the suit property and continued with their illegal actions, thus making it necessary for the Plaintiff to institute these proceedings. 12. The Plaintiff prayed for Judgment to be entered against the Defendants jointly and severally for: - 13. ***A declaration that the transfers registered in respect of parcel of land known as Kwale/Galu Kinondo/394 and the sub-division of the said land into at least 12 Sub - Divisions and the registration thereof into the names of the 4th and 5th Defendants and other third parties is irregular, unlawful and therefore null and void;*** 14. ***An order directing the County Land Registrar, Kwale and Christopher Mbuggus Well, Kiprotich Chesire, Richard Muiruri Kuria, David K. Kandie, Gisimba General Enterprises Limited, Alfred Kaibunga Baariu, Job Kigen Kangogo, Minnie Jemutai Tubei, Josephine Chepkechei and Eunice Wairuri Kibera to restore the parcel of land known as Kwale/Galu Kinondo/394 to its original state prior to the registration of the illegal transfers;*** 15. ***A perpetual injunction to restrain the selling, transferring, charging, pledging, leasing or in any manner whatsoever disposing or agreeing to dispose of any interest in the parcel of land known as Kwalé/Galu Kinondo/394.*** 16. ***An order of cancellation of the 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th Defendants’ titles issued for Kwale/Galu Kinondo/394.*** 17. ***An order of rectification to cancel all titles illegally, fraudulently and issued through entries relating to the illegal transfers of parcel of land known as Kwale/Galu Kinondo/394 and the restoration of the said parcel of land in the name of Apollo Hotels Limited.*** 18. ***An order of mandatory injunction to compel the 1st, 2nd, 3rd, 4th and 5th Defendants, their relatives, agents, servants and/or any other persons acting on the authority or instructions of the Defendant to give vacant possession of the suit property and to demolish and/or pull down to the ground level the illegal structures constructed thereon and to remove all the materials thereon failing which the structures be demolished and removed at their costs.*** 19. ***All such further or other accounts, inquiries, directions and relief as shall be just in the opinion of the Court.*** 20. ***Damages*** 21. ***Costs of and incidental to this suit.*** 22. The Plaintiff called its witnesses on 10th July, 2013 who testified as follows: 23. **Examination in Chief of PW - 1 by Mr. Gakuo Advocate.** 24. PW - 1 was sworn and testified in English language. He was called SHASHIKANT MEPA SHAH, a Citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing. He told the court that he was a director of APA Insurance Co. and Apollo Hotels Limited; the Plaintiff herein. He had the authority from the Plaintiff to represent them in the case which he produced as exhibit No. 1. According to the witness, the Plaintiff was the registered owner of LR. No. KWALE/GALU KINONDO/394. The witness had an original certificate issued on 14th January, 1986 which he also produced as the Plaintiff’s Exhibit No. 2. He had the search dated 1st April, 2015 which he produced as exhibit 3; a copy of the land register – the Green Card at page 23 of his original list of documents. 25. According to the witness it showed the original owner as Apollo Hotels Limited and the certificate was issued on 14th January, 1986 and item 6 showed it was transferred to the 1st Defendant on 26th September, 2002. They never sold or transferred the land to anybody, including the said Christopher Mbugus Well, the 1st Defendant. The Plaintiff was still the registered owner to date. The Plaintiff bought the suit property in the year 1985 from Mushihiri Juma Mboga for a sum of Kenya Shillings Ninety Thousand (Kshs. 90,000/-) ; he produced a copy of the transfer dated 20th December, 1985 as Plaintiff’s Exhibit No. 5. The transfer was registered on 13th January, 1986. Their advocate was Sachdeva & Co. Advocates. 26. The witness had a letter of consent from the Land Control Board dated 4th December, 1985 which he produced as Plaintiff Exhibit No. 6. After acquiring the Plot, they wrote to Hime & Zimmerlin to place the beacon. They paid them a sum of Kenya Shillings Four Thousand (Kshs. 4,000/-); he produced the letter as exhibit no. 7. Hime & Zimmerlin wrote to the Land Registrar on 21st January, 1986; he produced the letter dated 21st January, 1986 as Exhibit 8. The Land Registrar invited all the neighbors vide letter dated 10th April, 1986 to the fixing of the boundary of the plot which he produced as the letter dated 10th April, 1986 – Marked Exhibit No. 9. 27. PW - 1 stated that on 30th January, 1987 they got a letter from Kenya Power & Lighting Company Limited asking for permissions. They gave them permission they requested; the letter dated 10th July, 1987 was marked as Plaintiff Exhibit No. 10. In the year 2012 they tried to conduct a search but the Land Registrar could not give them. They requested their lawyer to write to the land registrar which letter he produced as Plaintiff Exhibit No. 11. The green card was missing from the Land Registry. The Land Registry issued a Gazette Notice giving 60 days’ notice which he produced the same as Plaintiff Exhibit No. 12. 28. PW - 1 told the court that on 16th April, 2012, the Land Registrar wrote to the Government Printer enclosing money which he produced as Plaintiff Exhibit No. 13. The Gazette Notice No. was gazette in the Kenya Gazette which he produced as Plaintiff Exhibit No. 14. They found out that the plot had been sub – divided into 12 plots by the 1st Defendant. They did not sell the land to him or any other person. In the Green Card at Page 23, Entry No. 6 showed Christopher Well, Entry No. 8 as Kiprotich Cheisre, Entry No. 9, Richard Kuria, David Kandie and Entry No. 10 was sub-division closed. 29. PW - 1 testified that they did not sub – divide the land. They had been paying the rates for Plot No. 394 at page 30 of their documents was a demand notice dated 20th March, 2013 from County Council of Kwale. The rate payer was the Plaintiff. The demand notice was produced as Exhibit 15. They paid the outstanding rates on 2nd April, 2013 paid vide bankers Cheque No. 17397 for a sum of Kenya Shillings Thirty-Three Thousand Seven Fifty Hundred (Kshs. 33,750/-). The Bankers Cheque was produced Plaintiff Exhibit No. 16. The payment was for Plot No. 394 and 533. They had never had any transaction with the 1st and 5th Defendants. 30. PW - 1 testified that his complaint against the Commissioner of Lands and the Land Registrar was that they issued titles over their land without their consent. He prayed that all the buildings on the property to be demolished. They never consented to the sub – divisions. They never gave consent to transfer; they never signed any transfers. At pages 20 to 22 were photographs showing buildings that had been erected on the land; he produced the Photographs showing building as Plaintiff Exhibits 17(a), (b) and (c). After they wrote a letter, the search was given showing the Plot No. 394 as belonging to the Plaintiff. The Plaintiff was a registered Company. The witness had a certificate of incorporation issued on 13th May, 1985; produced as Plaintiff Exhibit No. 18. The company never sold the land to the 1st Defendant. They had a caretaker on the land and had the boundary fixed and gave wayleave to Kenya Power and Company Limited. It was not true that they had no control over the Land Registrar, Kwale. He refuted ever being a conman. 31. The witness told the court that he was a director of APA Insurance, Apollo Hotels, Kenmas Limited, which was a biggest shareholder of APA Insurance. He did not know the 2nd and 3rd Defendants. They had a caretaker in the land. He would not know if the 2nd and 3rd Defendants kept a caretaker. In the year 2012 when they realized there were buildings, they went and demolished. In the year 2013, they filed this case to ask for their rights. They never sold the land to the 4th Defendants. They never dealt with the 2nd, 3rd and 4th Defendants. They never sold not sub – divided their plot No. 394. According to them, that plot was still intact. The 5th Defendant should claim from whoever sold him. 32. PW - 1 was not aware of Plot No. 2065 and 2066. Whatever the defendants alleged in their defences were not known to the Plaintiff. When they saw constructions, they instructed their lawyer to file this case. He was not aware of ELC Case No. 77 of 2013. They should have checked all the documents, such as Green Card, rate payment etc. before registering anybody. They asked court to return their land Plot No. 394 and cancelled all the other titles as the company never sold. They also prayed for costs of the case. 33. **Cross Examination of PW - 1 by Miss. Oyier Advocate for 4th Defendant** 34. PW - 1 reiterated that he got the certified copy of the green card, Exhibit No. 4 from the Land Registrar, Kwale. They had a caretaker on the land. They realized in the year 2012 that there were constructions going on the suit property. The caretaker informed them and they went and demolished the boundary wall foundation of the constructions. He had never met the 4th Defendant. He made a report to the police about the fraud. He had no evidence in court to show that the 4th Defendant was charged. He did not have a report/document from the National Land Commission. The Plaintiff’s office was in Apollo House, Mombasa. The suit land was situated in Kwale. They got to know the construction through the caretaker. 35. PW - 1 confirmed that in the certified copy of the green card, entry 4 was the Plaintiff, Apollo Hotels Limited showing a sale of a sum of Kenya Shillings Ninety Thousand (Kshs. 90,000/-) and No. 5 was full Land Certificate issued and 4 and 5 cancelled No. 6 was on 26th September, 2002 and showed Christopher Mbuggus Well, the 1st Defendant No. 7 Land Certificate issued while Entry No. 8 was Kiprotich Chesire the 2nd Defendant and Richard Muiruri Kuria, the 3rd Defendant. These documents came from the Land Registry Kwale. Anybody who requested the same would have gotten the same documents. 36. **Cross Examination of PW - 1 by Miss Njau Advocate for the 5th and 8th Defendants.** 37. PW - 1 told the court that the Plaintiff bought the land in the year 1985 from Mushihiri Juma Mboga. He did not have an agreement; he had a letter or Application for consent. He did not have a receipt nor minutes of the Board. They were issued the title in 1986; their caretaker told them in 2012 about the construction. They used to visit the plot every year. He had no privity of contract with the 5th and 8th Defendants and he did not know them. 38. **Cross Examination of PW - 1 by Mr. Ngare Advocate for the 6th and 7th Defendants.** 39. PW - 1 told the Court that he had filed an application for an injunction. In the affidavit in support of the application, he said he had been in occupation; they had a caretaker on the plot who had a kiosk. The Kiosk was no longer there. The person who constructed the plot in the year 2012 demolished the Kiosk. The caretaker was their employee. PW - 1 did not have any documents to show that they had employed him. The transfer (Exhibit No. 5) out advocate was L.J. Manghnani. According to the transfer, the transfer was identified by Hamisi Hamadi. He appeared before him on 20th December, 1985. On the second page, there were signatures of two directors. The names of the directors were not shown. The photographs (Exhibits No. 17 (a), (b) and (c) were taken by his friend, Sandhya Shah. The witness stated that he could call him as a witness. 40. PW 1 confirmed that the Plaint was filed on 29th April, 2013; the official search (Exhibit No. 3), the Proprietor was Apollo Hotels Limited. Between the search and the certified copy of the Green Card, they go by the search. He applied for a search but it could not be issued at first. The loss of the green card was advertised by Joseph Koskei, the Land Registrar Kwale District. It culminated in Gazette Notice No. 5925 of 4th May, 2012. 41. PW - 1 stated that one year before he filed the case, the Registrar had engaged him about the lost green card. His complaint against the Registrar was that somebody else had another title tot the land. In the certified copy of the Green card, the Plaintiff’s name had been cancelled. The witness told the court that he did not make a report of fraud to any police station. 42. **Cross examination of PW - 1 by Mr. Kazungu Advocate.** 43. PW - 1 confirmed that he was SHAH SHASHIKANT MEPA born on 15th July, 1945; he told the court that his relationship with the Plaintiff was that he was the director of Apollo Hotels Limited and ABA Insurance but he did not have proof in form of a CR 12 form. He recalled on 10th July, 2017, he testified that the Apollo Hotels were properties of Land Reference No. Kwale/ Galu Kinondo/394. He recalled that he testified the company was still holding the title for the land. It had not sub-divided and he recalled that he was still holding the original title deed. He recalled the Plaintiff had sued the Defendants and that later on 9th, 10th and 12th Defendants were joined. He did not know them. 44. With reference to Plaintiff Exhibit – 1 on the Letter of Authority, the witness told the court that the authority bore two signatures; the same was signed by B.M. Shah and Shashikandi Shah, since it had no name in it but what they gave the Court was the correct position. The witness further on reference to the green card Plaintiff Exhibit – 4; told the court that he obtained the green card from the Land office in Kwale in March 2013. With reference to Letter dated 7th March, 2012 addressed to the Land Registrar by the Counsel indicating that the green card could not be traced – that it was missing according to PW - 1. 45. PW - 1 told the court that by a Kenya Gazette Notice No. 5925 of 4th May, 2012 seeking to be issued with record for the suit property as they were missing. He supplied record to that effect. There was a letter – 20th March, 2013 by the Plaintiff’s counsel to the Land Registrar that was a clear indication the Green card was still missing. It meant by that time the records for the suit land the records were still missing. From the green card, it was closed on 20th February, 2012 but he still had the title deed. By year 2012, his lawyer conducted an official search. There was a fee receipt for the search dated 22nd March, 2012 receipt No. 3064162 but no formal application. 46. According to PW - 1 prior to 20th March, 2013, he had not paid any rates as he had no money. He bought this property in 1986 – i.e. the Plaintiff’s company. Unfortunately, although they entered into a sale agreement but they never brought/ produced it in Court referred to Plaintiff Exhibit No. 5. The transfer of Land dated 20th December, 1985 from Mushihiri Juma Mboga to Plaintiff. The details of the transferor of Identity card number were missing but he knew the Land Registrar could not register the land without these details. The identification card was with the lawyer. There were finger print – thumb print, there were no indication whether it was right hand thumb (R.H.T) or Left Hand Thumb (L.H.T) thumb print on the form as it should be ordinarily. He held that he had been in possession – he had a caretaker, a kiosk and water shallow well to date. 47. PW - 1 told the court however that he was currently not on physical occupation of property as someone had built some (3) apartment and perimeter wall around the suit property. He lost the control from 2013. His caretaker was chased away in the year 2002. He never took photographs of the structures on the land then i.e. the water shallow well and kiosk. In the year 1986, they got the land surveyors – Zimmorin to get to the land to cause the land survey/ sub division and planting of beacons but they were unable to do so as there was resistance by the intruders/trespassers i.e. the surveyor has invited the neighbors to be present to witness the Land Surveying process but there was no co-operation. Hence he could not get there. 48. PW - 1 stated that his caretaker was removed by the intruders they never reported to the police. It was during the election time. No police or investigation report were produced. He was not surprised of his presence from the land from the years 1986 to 2012 it was 25 years – he had financial constraints. He had no photographs nor any evidence of the kiosk and shallow well on the suit land. He came to learn that on 26th September, 2002, the land had been registered in the names of Christopher Mbuguss – the 1st Defendant and his caretaker who was still in the land could not inform him. He did not know Mr. Chistopher Mbuguss, Mr. Kiprotich Chesire, Richard Muiruri Kuria and David Kandie. He confirmed that there was a caretaker on the land. On being referred to the Green card, the chronology of ownership was as follows: - 49. 15th February, 1980 – Mishiri Juma Mboga. 50. 13th January, 1986 Apollo Ltd. 51. 26th September, 2002 Christopher Mbuguss 52. 18th February, 2003 Kiprotich Chesire 53. 24th October, 2008 David K. Kandie 54. 20th February, 2018 title closed for sub-division 55. The witness told the court that all this time he had the original title deed, he had alleged fraud. He did not have any occurrence book number from the police as he never reported nor investigations report. It was his land surveyor not his caretaker what was happening. With reference to the survey report – Karanja P.M. & Associates dated 30th March, 2012 – it was confirmed that the title No. 394 did not exist and resultantly there were sub – division of 12 parcels; to Kwale/Galu Kinondo Numbers 2060 to 2071 he never caused to have these sub - divisions. He was not a party to it and that was the reason why he was in court through this suit. He had never issued any demand notice for the eviction of the intruders from the land; he only passed by the suit property. **Re – examination of PW - 1 by Mr. Gakuo Advocate.** 1. The transfer was signed according to the witness by the seller and was transferred to Apollo Hotels Limited. As at today the Plaintiff was the registered owner. The Plaintiff’s complaint was that the sub – divisions were done illegally. They never signed any transfers. He did not have a copy of the agreement but he had a copy of the transfer and the original title. They noticed someone had constructed on the Plot in the year 2012 and they went and demolished. They came to Court in the year 2013. They had a caretaker on the plot and a water well. All the Defendants except Commissioner of Lands and the Land Registrar, were on the Green Card. He had the original Certificate of Title Deed and the search which indicated the land was registered in their names. This was a ***“Prima Facie”*** conclusion of ownership. 2. With reference to the Land Surveyor – Karanja P.M. & Associates - Plaintiff Exhibit – 20, the witness told the court that he never sold the property to anybody; his title deed was intact. He got the green card from the land offices, it was on 2013 when he discovered the land had been sub – divided and that was when they instructed to file the suit. He had been in possession from the years of 1986 to 2013. The people had intruded on his land and they built three apartments and had tenants and a perimeter wall. 3. According to PW - 1, the green card loss was gazetted on 4th May, 2012 – the certified copy of the green card was issued in the year 2013. The official search was year 2013. The owner was Apollo – he wanted the land and demolition of the structures on the sub – division of the land. 4. The Plaintiff called PW - 2 on 23rd November, 2017 where he testified as follows: - 5. **Examination in Chief of PW - 2 by Mr. Gakuo Advocate.** 6. PW - 2 testified under oath and in English language. He identified PETER MWAURA KARANJA that was resided in Mombasa; a licenced Surveyor No. 190. He had been a surveyor since the year 1984 when he graduated from the University of Nairobi. He was initially employed by the Government from the years 1984 to 2009 and in 2010. He went into private practice as a Licences Surveyor. He was commissioned by the Plaintiff to ascertain their position of their land on the ground. The land is Plot No. Kwale/Galu Kinondo/394. They gave me a copy of the title deed. The witness went to the Provincial Surveyor’s Office, Ministry of Lands to purchase the Registry Index Map. 7. PW - 2 told the court that he realized that the Plot did not exist in the RIM because it was already subdivided into several plots. It had been sub-divided he had a copy of the RIM. The RIM was a public document which can be purchased by anybody anytime. In their section under amendments, Plot No. 394 was sub-divided into plots Nos. 2060 to 2071. When he realized that, he contacted the Provincial Surveyor who provided the mutation forms which sub-divided the plots. The witness reported back to the owner. The owner said he had not for the sub – divisions. He saw three buildings that were coming up and they were also fencing on the sub—plots which were going on. The measurements on the ground agreed with the map. 8. PW - 2 stated that the ground matched the acreage on the title deed. It was 1.5 hectares which he wished to produced given anybody instructions to sub – divide the land. From there the witness went to the grounds to identify. From there he went to the grounds to identify the plot on the ground. He identified the plot on the ground as being opposite Neptune Hotel. The witness found beacons on the land the RIM as P. Exhibit 19. The witness prepared a report, which was on page 29 which he produced the survey report as an exhibit 20. 9. **Cross examination of PW - 2 by Ms. Maina Advocate.** 10. PW - 2 confirmed that he was instructed by the Plaintiff in 2012. 11. **Cross examination of PW - 2 by Mr. Mulwa Advocate.** 12. PW - 2 reiterated that he had been a Surveyor since 1984 and was conversant with the process of survey. He was instructed by the Plaintiff in year 2012 before he prepared his report dated 30th March, 2013. The witness could not remember the exact date of the instructions. The instructions were verbal. He went to the provincial Survey Office where he purchased the Map. It was the RIM which showed the statues of the survey of a plot. From the RIM, plot No. 394 was no longer in existence but existed in the amendment section. The amendments showed that the map was amended on 28th March, 2012. From his report, it was clear that Plot No. 394 had been closed and there were new plot numbers 2060 - 2017. From the RIM that he had produced Plot No. 394 did not exist. What existed were Plot Nos. 2060 - 2071. There were various editions of the RIMs. This was the 46th Edition. 13. PW - 2 stated that what was existing at the time was the amended RIM. The earlier edition could show that it existed. Anybody interested in those plots would get the same RIM. One would have found that the RIM matches the ground. The sub-divisions existed in the survey maps. They also existed on the ground. The sub-divisions agree with government records. There was a road that was created. Once a road is created, the same becomes a public utility and it is surrendered to the government. 14. PW - 2 told the Court that he did not establish whether the road was surrendered to the government or not. It was not the work of surveyors to register land; that was the work of the Land Registrars who register land. There was an official road created by the sub – division and that road ordinarily belonged to the government. He did not know if the RIM had been amended to revert to 394 and not those other plots. If the sub-divisions were reversed, it would affect everything including the road created by such sub-divisions. He saw the mutations forms for the survey of the resultant plots. 15. PW - 2 stated that mutations were identified by a number if he saw he would be able to recognize it. The mutation number was 03955051. The surveyor prepared the mutation. The mutation in this case was prepared by a Surveyor known as Edward Kiguru the witness knew him as his boss when he was in the government. In the mutation, the owner was shown as David K. Kandie, the 4th Defendant. The witness did not know how David Kandie became the owner; that was the work of the registrar. 16. PW - 2 testified that from the mutation form, Plot No. 2065 was one of the Plots, so to Plot No. 2066, 2063 and 2064. They were part of the RIM and Mutations. At Page 4 of the Mutation Form the registered owner was David K. Kandie and there was a signature. It was also signed by the Land Registrar Kwale. The Mutation Form showed the Land Registrar was involved. The registrar would insist on seeing the Green Cards which shows the owner. The general practice was that the Land Registry must satisfy himself that the person appearing as the owner in the green card was the one authorizing the sub - division. At Page 3 of the Mutation Form, the area of the road is 0.217ha. This mutation was carried out as per the Plot falls under an agricultural land. Land Control Board consent ought to be issued for sub – division. 17. **Cross examination of PW - 2 by Mr. Ngare Advocate.** 18. PW - 2 confirmed that he purchased the RIM from the Provincial Survey’s Office in the year 2013 at a sum of Kenya Shilling Five Hundred (Kshs. 500/-0 and was given a receipt for it but had not produced it in court. He was instructed in the year 2013. Exhibit No. 19 was purchased this week because the other one has faded. It was not dated. It was important to have it dated. (Shown Exhibit 3 – Search) Kwale/Galu Kinondo/394. In the certificate of official search, the registered owner was Apollo Hotels Ltd. The search was dated 18th April, 2015. The Map (Exhibit 19) did not have Plot No. 394; it did not exist in this map. 19. **Re – examination of PW - 2 by Mr. Gakuo Advocate.** 20. PW - 2 stated that he was not the one who prepared the RIM (Plaintiff Exhibit 10). It was a public document; anybody can get it. Plot No. 394 did not exist in this map because it had been illegally sub - divided. The sub -division was for parcel numbers 2060, 2061, 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070 and 2072. If one looked at the RIM, they would notice Plot No. 394 existed before sub-division. The acreage was 1.5. hectares. According to the search, the property belonged to Apollo Hotels as at 1st April, 2015. He prepared his report on 30th March, 2013; his instruction were to go to the ground and investigate whether there were any developments on the plot. When he went, he found beacons and structures which were being built. Out of the sub-division, there was a road which was surrendered to the government for public use. 21. PW - 2 stated that if the sub – division were reversed, the road would be no more. The mutation form showed parcel Land Reference numbers Kwale Galu Kinondo/394 at the heading. This meant the land being sub-divided was Plot No. 394. According to the mutation, the registered owner was David K. Kandie, sub-dividing Plot No. 394 into twelve portions. The twelve portions were the ones in the RIM. The search showed the land belonged to Apollo Hotels as at the year 2015. At page 4 of the Mutation, the same was not dated. When a Mutation has been prepared by the surveyor, it is forwarded to the District Surveyor who issue new numbers for the sub plots and he forwards the mutation to the Land Registrar to issue authority for the amendment of the RIM. 22. The witness told the court that the map was then taken to the provincial surveyor who will forward it to the District Surveyor who will then forward it to the Land Registrar for registration. The final person to register the mutation is the Land Registrar. The same must be registered by the Land Registrar. This mutation form was not registered. The register had authorized the amendment of the RIM to conform with the diagrams on Page 3. According to this Mutation form, the registration of new titles was not done. It showed that the mutation process was not complete. 23. **The case by the 2nd and 3rd Defendants.** 24. In their defence, the 2nd and 3rd Defendants denied the contents of the Plaint and put the Plaintiff to strict proof. 25. The 2nd Defendant testified as DW - 1 on 27th March, 2023 and told the court that: 26. **Examination in Chief of 2nd Defendant by Mr. Kariuki Henry Advocate.** 27. The witness was sworn and testified in English language. He was called KIPROTICH CHESIRE a citizen of Kenya holding the national identity card bearing all the particulars as shown to court. He testified that he was a businessman and he was aware that the Plaintiff had sued them in respect to Plot 395. The witness told the court that he acquired the property with his partner from Christopher Mbuguss. His interest was registered on 18th February, 2003, he never developed the property. By the time of acquiring it there were squatters and it was part of the bargain that the squatters to be evicted. They sold the property to the 5th Defendant. They were never called by the Land Registrar for the cancellation of title and there were no complaints whatsoever. 28. **Cross examination of 2nd Defendant by Mr. Ondabu Advocate.** 29. DW - 1 reiterated that he confirmed he sold the property to the 4th Defendant. It was for the sum of Kenya Shillings Five Hundred Thousand (Kshs. 5,000,000/-). They were paid and they completed the transfer. At the time of completion there were no complaints pending on the property or any party. 30. **Cross examination of 2nd Defendant by Mr. Musyimi Advocate.** 31. The witness told the court that he had just seen the Plaintiff in court on the day of the trial for the first time. He saw and heard the name of Apollo Hotels from the purchase of the property, they went there and conducted due diligence. There were no structures when they conducted the official search. The witness had never participated in the sub – division process and he had never interacted with the other Defendants. After the sale he never conducted the search. They bought it at a sum of Kenya Shillings Eighty Five Thousand (Kshs. 85,000/-). They saw the squatters on the land. They never knew whether there were agents of the Plaintiff as claimed by them. 32. **Cross examination of the 2nd Defendant by Mr. Mwandeje Advocate.** 33. The witness told the court that he bought the property from Christopher Mbugus; the witness conducted the search. He saw the original title from Mr. Mbuguss; he was not aware whether the title was surrendered to the Land Registry. 34. **Cross examination of 2nd Defendant by Mr. Gakuo Advocate.** 35. The 2nd Defendant told the court that he did not know Mr. J. Machuka Advocate personally but they had done a few properties with him. He had done transactions of this land with him. The transaction was done at a place he could not recall. He did not have a sale agreement in court. He did not have a copy of the title of the land reference 395 nor in his name. He did not have a copy of the official search. 36. The witness told the Court that he did not have proof of letter of consent from the Land Control Board, he was working for Deport Manager in the year 2003. He had no evidence of how the purchase price of a sum of Kenya Shillings Five Hundred Thousand (Kshs. 5,000,000/-) which was paid to him. He had a sale agreement of the purchase of land between him and David Kandie. 37. With reference to the 4th Defendant’s list of document, the witness told the court that Mr. J. Machuka acted for him. He went to the land with his advocate called S.M. Oduga Advocate but he could not use him to represent him and hence went to Machuka Advocate who was based in Malindi. 38. **Cross Examination of 2nd Defendant by Mr. Kariuki Advocate.** 39. The 2nd Defendant testified that Mr. Kandie had never sued him over the purchase of the land. He had never claimed his money. 40. The 2nd Defendant through his counsel on record Mr. Kariuki Henry Advocate marked their case closed on 27th October, 2023. 41. **The 4th Defendant’s case** 42. The 4th Defendant denied the contents of the Plaint and put the Plaintiff to strict proof. The 4th Defendant called its first witness on 20th February, 2018 at 11.00 am and the witness testified as follows: 43. **Examination in Chief of DW - 1 for 4th Defendant by Mayabi h/b Mr. Kadima Advocate.** 44. DW - 1 was sworn and under oath. He was called DAVID KIPKURUI KANDIE. He told the court that he resided in Diani. He was the 4th Defendant. He got a plot, looked for the owners and he found them; the 2nd and 3rd Defendants. After due diligence, he engaged his lawyers and they entered into a sale agreement. He filed his list of documents on 22nd June, 2015. He produced the Sale Agreement dated 10th September, 2008 as Defendant Exhibit No. 1. It was in respect of Plot No. GALU/KINONDO/394. Around year 2012, he decided to sub – divide and sell it. Before the sub - division, immediately after the sale agreement, the seller transferred the property to him. He produced the transfer. 45. **Examination in Chief of DW - 1 for 4th Defendant by Mr. Ondabu Advocate.** 46. On 20th February, 2018, he had already testified; he filed a witness statement in 2015 and a list of documents in 22nd June, 2015 i.e. 19 documents dated 19th June, 2015 – 4th Defendants Exhibits 1 to 19. He clarified that the 1st Document was the certificate of title. It was in the name of Apollo Hotels Ltd caused by Mr. Kadima Advocate. The witness was upset and he decided to changed the Advocate. He refused to release his original documents despite the numerous correspondents from his advocate. 47. The witness told the court that however, so far as he managed to get most of the documents apart from the title but the search was there in his name. At the time of filing the case, the title was in the name of Apolo Hotel and had been filed in Court. He had caused the sub division from parcel No. 2060 to 2070. He had the original search to confirm that the property in his name Exhibit 8 dated 7th February, 2012 for Land Reference No. Kwale/ Galu Kinondo/394. The witness confirmed that he made the necessary payment and the Land Registrar acknowledged and signed the Mutation on 27th January, 2012, his prayers were as from the pleadings. 48. **Cross Examination of DW - 1 for 4th Defendant by Mr. Musyimi Advocate.** 49. The witness told the court that he knew the 5th and 8th Defendants. By the time of dealing with 5th and 8th Defendants, the Plot No. 394 had been closed for sub-division. He sold the 5th - the parcels 2066 and 2065 and 8th Defendant parcel 2064. The witness told the court that he sold Peter Kaburu 2065 and he sold it to the 8th Defendant. He sub - divided in the year 2012, he took possession of 394 and caused it to be sub-divided. 50. The witness sold the property for value. These properties had no encumbrances. There were no complaints, or demand letter he still held Plot No. 2069, 2070 and 2071 from the sub-division. Before he sold the property he had never met the 5th and 8th Defendants. The witness only met them during the transaction. He had a caretaker. He would frequently send people to view the property. He was never confronted by the Plaintiff. He never confronted him. He though causing more sub-division of the parcels he would make more money. All these periods of 5 years he never saw a representative of the Plaintiff. 51. **Cross examination of DW - 1 for 4th Defendant by M/s. Rukiya Advocate.** 52. DW - 1 for the 4th Defendant told the court that he had an agreement of sale before selling the properties. He would have an official search before entering into the agreement to the 5th and 8th Defendants – No search for 394, he did not have a title in court. The day of the transfer is 8th October, 2008 – when he appeared before the Advocate and he transferred it on 18th February, 2008; these dates were an error by his Advocate. He paid the stamp duty when he transferred land 394 to the 2nd and 3rd Defendants. The witness told the court that he gave the title to his advocate. He had never asked for the replacement of the title as he had been in court. He attended the Land Control Board and he was issued with the Letter of Consent for sub-division 12 parcels – dated 25th January, 2012. 53. **Cross examination of Mr. Kandie by Mr. Gakuo Advocate.** 54. The witness told the court that he got the letter of consent was from the Kwale Land’s offices. He had the application for the Land Control Board but without having filed it in court. He had the copy of the search for the 2nd Defendant he had the title to 2nd and 3rd Defendants for 394 but it was not in the file/ court. With reference to document No. 5 of the 4th Defendant, the witness told the court that it was a transfer of the land from 2nd Defendant to him. He was the one who applied for the official search. He had been asking for all his documents from his advocates. It was not true that he had owned the property No. 394, he did not know the Apollo Hotels Ltd. They did not know about Apollo Ltd for the past 10 years. 55. The witness told the court that he bought the land from the 3rd and 4th Defendant, he was buying and selling for speculation. He knew Richard Muiruri Kuria – the 3rd Defendant. He had paid him cash twice and he had withdrawn the money he paid to Richard being the sum of Kenya Shillings Five Million (Kshs. 5,000,000/-). With reference to paragraph 9 of the sale agreement, he told the court that items 9(i) to (vii) – he had no copies in Court. 56. **Reexamination of DW - 1 for the 4th Defendant by Mr. Ondabu Advocate.** 57. The witness confirmed that he engaged an advocate – Getembe J. Macharia Advocates who represented him in the sale agreement dated 10th September, 2008. He had an application for consent but it was not filed. With reference to the certificate of lease, the witness told the court that the same were for Apollo Hotels and the transfer of land from Juma to Apollo; those were not his documents but they were filed by Mr. Kadima Advocate who wanted to fix him as they had a raw deal with him. The documents under paragraph …….. were availed to his advocate. He had his transfer form from Kiprotich Chesire and Kuria (2nd and 3rd Defendants) to him were available. The dates on the transfer dated 8th October, 2008 and for the date the Land was registered 18th February, 2008, and it was only the land registrar who knew. 58. **The 5th Defendant’s case** 59. In their defense the 5th Defendant filed as a bundle their statement of defense dated 5th June, 2014 together a bundle of documents and further called four ( 4 ) witnesses in their defense including the Current Kwale Land Registrar and former Land Registrar, one Mr. E.N.Marwanga. 60. The 5th Defendant called its first witness on 20th February, 2018 who testified that:- 61. **Examination in Chief of DW - 1 for the 5th Defendant by Ms. Mayabi Advocate.** 62. DW - 1 was sworn and testified in English language. He was called CLAVER SINDAYIGAYA. He was a lawyer by profession with UNICTR but was now a business man in Diani. He stayed in Galu/Kinondo were in a property he purchased in the year 2013. It was Plot No. KWALE/GALU KINONDO/2065 and 2066. He acquired this property sometime in October, 2012 from the 4th Defendant, David Kandie. The witness told the court that was a director of a company called Gisimba General Enterprises Limited. It was that company which had purchased the property. The Company (5th Defendant) had authorized him to represent it in this case. He testified that he first visited Diani in June/July 2012. Upon seeing the location, he found it desirable and developed an interest in acquiring property there. 63. DW - 1 testified that he met with the 4th Defendant, David Kandie, who offered to sell him two plots located along Diani Beach Road, opposite Neptune Hotel. They visited the property together, where he: - 64. Physically inspected the plots. 65. Was shown the boundary beacons. 66. Reviewed copies of title deeds (later submitted as pages 7-11 in his evidentiary bundle). 67. The documentation confirmed Mr. Kandie's ownership of both parcels. The 4th Defendant presented official documentation including Title searches for both plots (referenced to page 13 of exhibits) and the Rate demand notices from Kwale County Government. Following the site visit, he proceeded to the Survey of Kenya offices in Mombasa. He was provided with an official survey map (submitted as page 57 in his evidentiary bundle. 68. DW - 1 confirmed through official records that Plots 2065 and 2066 were legitimate subdivisions created from original Plot No. 394. The survey map had been properly amended on 28th March, 2012. He established that the year 2012 survey map obtained from Survey of Kenya and the same was identical to the year 2017 version he later acquired. The map produced by the Plaintiff. All versions matched the official government records. 69. DW - 1 instructed his lawyer to prepare all necessary documentation. They had negotiated and agreed with the 4th Defendant on a purchase price of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1, 500, 000.00/=) per plot. His legal counsel subsequently made payment to David Kandie (4th Defendant) as agreed. His lawyer obtained the Letter of Consent for transfer (referenced in exhibit pages 15-16). A fresh official search was conducted on 2nd October, 2012 (documented in pages 17-22), for which he personally paid the requisite fees. Prior to finalization, a Government Valuer conducted the mandatory property valuation (pages 23-24). He paid the stamp duty for both plots (as evidenced in pages 25-28). The parties executed the Transfer of Land forms (pages 29-34), completing the legal process. After that he got two new titles deed for the two plots in the name of the 5th Defendant (pages 35 and 38). 70. DW - 1 testified that on 25th October, 2012, he conducted a final official search which search verified that the 5th Defendant (Gisimba General Enterprises Limited) was now the registered proprietor. The transfer process had been successfully completed. He took physical possession of both plots in November, 2012. Immediately commenced property improvements including erection of perimeter fencing, commissioning of architectural plans for guest house development. He told the court that he instructed an Engineer to draw him an architectural drawing for guest houses. He secured all necessary construction approvals (referenced in exhibit page 41). 71. DW - 1 told the court that he later went to seek NEMA approval and he showed them the title deeds and he got NEMA’s approval on 8th February, 2013 (page 42). The County Government came and demanded payment for the building which he paid into total of a sum of Kenya Shillings Thirty Eight Thousand Nine Seventy Hundred (Kshs. 38,970/=) (pages 43 and 44). 72. DW - 1 told the court that on 20th May, 2013, he conducted an additional official land search. The search results confirmed the current registration status (documented in exhibit pages 45 - 46). He personally visited the Kwale County Government offices filed the necessary documentation to update property records and Effected the change of ownership from David Kandie to Gisimba General Enterprises Limited. The processed records were preserved (exhibit pages 47-48). 73. He commenced construction works in January, 2013, successfully completed all building works by December 2013. It was licensed as a Guest House known as Gisimba Villas by Tourism Office and Health (pages 49 and 50). He received and preserved all demand notices from Kwale County Government (exhibit pages 51-54); paid all requisite property rates through 31st December 2017 and maintained complete payment receipts (exhibit pages 58-59). The witness engaged one Ahmed Ouma Randa as caretaker documented the employment arrangement (exhibit pages 55-56). The witness confirmed that all property records for Plots 2065 and 2066 were properly filed with the survey department, registered with the Lands Office and maintained by the County Government. He produced the 5th Defendant’s documents filed on 6th November, 2017 as Exhibit and produced as a bundle (5th Defendant’s Exhibit – Pages 5 to 59). 74. The witness was surprised to learn that the Plaintiff was claiming that Plot No. 394 was still in existence. This was because all the records showed his plots existed. He had completed his construction and was operating the business to date. He stated he exercised no control over Lands Office operations. The witness relied entirely on official government records as they existed. He was not aware of anything until December, 2013 when he got a call that some people came and affixed court documents at the gate. 75. DW - 1 told the court that he knew Apollo Hotels before. He came to know David Kandie in the year June, 2012. Before then he did not know him. They did the due diligence that everyone did. He was praying to the Court to dismiss the Plaintiff’s case and to affirm that the two title deeds in 5th Defendant’s. He had spent over a sum of Kenya Shillings Seventy Million (Kshs. 70, 000, 000/=) on the property. 76. **Cross examination of DW - 1 for the 5th Defendant by Mr. Gakuo Advocates.** 77. DW - 1 confirmed that the 4th Defendant was introduced to him by a taxi driver by the name Ken. David Kandie took him to see the plots. He had photocopies of the title deeds. Probably he did not have the searches then, but he later gave him the searches. By the end of August, 2012, they had finalized negotiations, he agreed to purchase each plot at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1, 500, 000.00/=) and he executed a formal sale agreement with David Kandie. The original signed agreement remained in his personal records at home. He had not anticipated the document’s absence becoming an issue in court. 78. DW - 1 told the court that he did conduct due diligence on Plot No. 394 and he found out that it was closed on sub – division. He conducted a search at page 17. He did not do a search on Plot No. 394 as he did not find it necessary. Plot No. 394 had been closed months before. Once they established that David Kandie was the genuine owner, the witness had no doubt. (Shown deed for Plot No. 394). 79. DW - 1 told the court after shown the 4th Defendant’s statement page 2 paragraph 4, Plot No. 394 was nonexistent not that the 4th Defendant shown him the original title deed for 394 it was up to the court to decide. He did not attend the Land Control Board. He had retained legal counsel to handle all transaction matters. They had executed a Power of Attorney authorizing their lawyer to sign all necessary documents and submit applications including Land Control Board Consent. He did not have the application for Land Control Board Consent. He never personally saw the Land Control Board application. He did not have minutes from the Land Control Board. He obtained letters of consent (Pages 15 & 16). The witness paid a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1, 500, 000./=) for each plot. 80. DW - 1 stated that he did not know who filled a sum of kenya Shillings One Million (Kshs. 1, 000, 000/=) in the letter of consent. He had the original title deeds for plot Nos. 2065 and 2066. The serial No. for Plot 2065 at the back of the title deed is No. 0087777. At page 45 was the search he conducted. The serial No. was 0087737. There was a difference. At Page 46 was another search Title Deed Serial No. 0087738. The serial No. for the Title Deed for Plot No. 0087779. The witness was the one who applied for the search and he got them. He had never dealt with Apollo Hotels and he did not know them before. 81. **Cross Examination of DW - 1 for the 5th Defendant by Ms. Mayabi Advocate.** 82. DW - 1 stated that the differences in the serial numbers could be a mistake; he was not the maker. If there was any fraud or mistake in writing it could not be attributed to him. 83. **Cross Examination of DW - 2 by Mr. Ngare Advocate.** 84. DW - 1 confirmed that he had been a lawyer since 1986. He sought out legal advise from his lawyer, Mr. Kinoti Kibe. He advised him that it was mandatory to have a sale agreement which he signed an agreement with 4th Defendant which he had not produced in court. He conducted comprehensive due diligence prior to the purchase. This investigation included the title deed verification, official search at the lands registry and physical inspection of the property. At no point during his investigations was he made aware of any Gazette Notice dated 4th May, 2012 for Plot No. 394 had disappeared. His diligence did not disclose that gazette notice. 85. DW - 1 stated that he got the title deeds from the lands office through his lawyer. The official search came from the lands office; which he had conducted them herself. He did not have the receipts in court. It was not true that he connived with the 4th Defendant to obtain these title deeds. He did not have the receipts for the development he had done but he had records. He did not have the minutes authorizing their lawyer to sign the application for consent but they were available. 86. **Re - examination of DW - 1 for the 5th Defendant by Mr. Mulwa Advocate.** 87. DW - 1 told the court that he had shown the court the consent to transfer. Before the consent was issued, there was an application. He was not even aware that there was an application as they gave power of attorney to their lawyer. According to the Plaintiff’s documents (page 24) Plot No. 394 had been closed on 20th February, 2012 on sub-division with new numbers 2066 - 2071. The new titles were part of the plots which he bought. The Gazette Notice was dated 4th May, 2012, three months after the title deed had been close. He had not even seen a new green card for Plot No. 394. He was not aware if a new green card was opened. The searches he obtained showed that the owner was Gisimba General Enterprises Ltd. The search at page 40 had no serial numbers but signed by the Land Registrar. At the time of purchase, he signed documents showing that he purchased the plots. 88. The 5th Defendant called DW - 2 on 4th December, 2019 who testified as follows:- 89. **Examination in Chief of DW - 2 for the 5th Defendant by Ms. Gitau Advocate.** 90. DW - 2 testified under oath. He was called AHMED OUMA RANDA. He resided in Diani, Ukunda Kwale County and the caretaker at Gisimba Villas since the year 2013. He was aware why he was in court. The director of Gisimbi Villas was Claver Sinda Yigago; the witness had known him since December, 2012. He was introduced to him by a taxi driver who informed him that he wanted a caretaker on a plot he had acquired Plot No. Galu Kinondo/2065 and 2066. 91. The witness told the court that the taxi driver took him there and he met him and he informed him he had bought the plot and he wanted to clear. They looked for 15 causal workers, cleared it and fenced it by putting up a barbed wire. In January, 2013 construction of 3 Villas started as well as Swimming Pool, water tower and a borehole. There was a contractor who had gotten approvals. The construction of the villas was completed in December, 2013. They had furnished and even booked out one village when he was called by a watchman who told him some people came and dropped some documents in the compound. He later learnt that they were court documents. 92. DW - 2 stated that was the first time he heard of Apollo Hotels. When they were constructing, they used to work from 8 a.m. up to 5 p.m. The construction went on from January, up to December. Nobody came and the place is on the road. The villas had customers up to date. The villas were still there up to now. He told the court that he recorded witness statement filed on 24th July, 2017 and was on page 55 of 5th Defendant’s list of documents which he adopted as his evidence in chief. 93. **Cross Examination of DW - 2 for the 5th Defendant by Mr. Gakuo Advocate.** 94. DW - 2 confirmed that his name was Ahmed Ouma Randa; he had his identity card but it was not in court. He was Kenyan and employed by Gisimba General Enterprises in the year 2013 as a caretaker. It was in December, 2013. As a caretaker, he was doing manual work. He was employed in December, 2013. He did not know when this case was filed in Court. He was not aware of this case was filed in April, 2013. He was caretaker of Plot No. 2065 and 2066 plus the villas. He had no idea where plot nos. 2065 and 2066 came from. 95. **Cross Examination of DW - 2 for the 5th Defendant by Mr. Makuto Advocate.** 96. DW - 2 reiterated that he started working for Gisimba General Enterprises Ltd. In December 2013, he started working as a caretaker. In December, 2012 he had bought the plot. He did not know whom he purchased the plots from. He had his land at home which he was given by his father. The witness did not know which land Plot No. 2065 and 2066 was sub-divided from. He did not know how he acquired the plot. 97. **Re - Examination of DW - 2 for the 5th Defendant by Ms. Gitau Advocate.** 98. DW - 2 stated that he started working clearing in December, 2012. The construction started in January. 2013 and was completed in December 2013 when he was employed as a caretaker. The villas were in Plot No. 2065 and 2066. 99. The 5th Defendant through his advocate Ms. Gitau closed their case on 4th December, 2019. 100. **The case by the 6th and 7th Defendants.** 101. In his defense the 6th Defendant filed a bundle his statement of defense dated 6th November, 2017 together bundle of documents and further called two witnesses in his defense including the Current Kwale County Surveyor. The 6th and 7th Defendants called their first witness on 7th February, 2024 who testified as follows: - 102. **Examination in Chief of DW - 1 for the 6th and 7th Defendants by Mr. Mwandeje Advocate.** 103. The witness testified on Oath. He testified in English language. He was called STEVEN MOKAYA. He told the court that he joined the Land Registrar’s office in year 2015 and posted to Kwale in April 2023. He had served in Nairobi, Eldoret, Kisii and Kwale. He was in court in respect of Land Parcel Kwale/Kinondo/394 – under Sheet No. 4. It was registered 15th November, 1974 under Mushihiri Juma Urolala who changed name to Mushihiri Juma Mboga. He was issued with Certificate of title on 18th February, 1980. In January, 1986, he transferred it to Apollo Hotels Limited and was issued with a Certificate of Title in the year 1986. 104. However, the witness said that the original register got misplaced from the office. Then the Land Registrar Gazetted the Register and later opened a new register on 5th December, 2014 whereby after opening the new register the old register re - surfaced with 3 new entries indicating – 26th September, 2002 property had been transferred to CHIRSTOPHER MBUGUSS with a Land Certificate issued the same year and under Entry of year 2003 another entry to Kiprotich Chesire was entered. 105. Further, the witness told the court entry of 18th February, 2003 under the name of Richard Muiruri Kuria. He was reading all these information from the Green Card. In the cause of time, he came across 3 Green Cards:- 106. Original Green Card. 107. New Green Card. 108. A Green Card with:- * Entry No. 1 15/2/80. * Entry No. 2 15/2/1980. * Entry No. 3 18.2.1980. * Entry No. 4 13/1/1986. * Entry No. 5 14/1/1986. * Entry No. 6 26/9/2002. * Entry No. 7 29/6/2002. * Entry No. 8 18/2/2003. * Entry No. 9 18/2/2003. 1. The witness told the court that he came across other parcels No. 2064, 2065 and 2066. From the original register there was no evidence parcel no. 394 was sub - divided. He only had the parcel file for No. 394. He did not have the transfer documents from Mboga to Apollo Hotels Ltd. nor to the other purchasers. From the parcel file for parcel No. 394 had no other documents. * The Green Card of 1974. * 2nd Green Card 5/2/2014 Entry No. 4 and 5 * 3rd Green Card = its registered a Court Order dated 3.5.2013 1. DW - 1 for the 6th and 7th Defendants told the court that all of them were genuine. Entry No. 6 to 9 all have the signatures of the Land Registrar: - * Entry No. 5 – 14/1/1986. * Entry No. 6 - 26/9/2002. * Entry No. 7 - 26/9/2002. * Entry No. 8 – 18/12/2003. * Entry No. 9 18/2/2003. 1. The signatures against these parcels are not by a Land Registrar. There were no sub-division of parcel No. 394. He did not know where the parcels No. 2064, 2065 and 2066 came from. Its alleged they came from Parcel No. 394. But parcel No. 394 was intact. These were entries of transfers but not sub – divisions. With reference to the 4th Defendant’s documents, the witness told the court that it was a mutation form. According to the witness a person with no proprietary rights to the land can apply for sub division of the land. It showed the land belonged to David Kandie. Mr. Kandie did not appear to be the owner of the property – 394. 2. With reference to the Plaintiff’s bundle of documents – dated 9th April, 2013, the witness told the court that particularly document no. 18 i.e. the green card over leaf entry no. 9 – it was Mr. David K. Kandie on 24th October, 2008. Entry No. 10 was closed for sub – division for Plot No. 2066 and 2071; he only had parcels No. 2064, 2065 and 2066. According to the witness when out at the time of filing the case the Plaintiff filed these documents – a search had been made and that is how. These people were sued. He did not know whose signatures there were. 3. The witness told the court that from Apollo Hotels to entry 9 there had been 3 Land Registrars; with reference to the title no. 2065 for Gisimba General it was a genuine title – shown transfer forms were genuine. He did not have any evidence of transfer from Mushiri Juma Mboga to Apollo Hotel Ltd. There had been 3 Land Registrar. 4. **Cross Examination of Land Registrar by Mr. Kariuki Henry Advocate.** 5. The witness told the court that he had presented three green cards. As far as he was concerned the parcels no. 394 belonged to Apollo Hotels Limited. The 2nd Card was after the Gazettement. The resurfaced Green Card came from Entry No. 5 to 9 were not genuine. If the matter was not in court, he would cancel the entries. The signatures were on the encumbrances section. The Land Registrar should had opened another Card. When the Land Registrar was reporting the loss he only reported Entry numbers. 1 to 4 and not No. 5925 – 4th May, 2012 and not entry No. 6, 7, 8 and 9 i.e. he only gave the names of Apollo Hotels Limited. 6. **Cross Examination of Land Registrar by Mr. Musyimi Advocate.** 7. The witness told the court that the Land Registrar certified the green card in 5th December, 2013. 8. **Cross Examination of Land Registrar by Mr. Gakuo.** 9. The witness confirmed that he knew that after the Land Register disappeared there were several parcels registered from Entry No. 5, 6, 7, 8, and 9. To him these were forgeries. The proper Entry should be up to Entry No. 4 which was for Apollo Hotels Ltd. With reference to the original Certificate of Title Deed in the name of Apollo Hotels Limited, the witness confirmed that the title was a proper title from the Land registry. If the matter was not in Court on the day of his testimony he would have invoked the provisions of Section 79 ( 1 ) & ( 2 ) of the Land Registration Act to cancel/ rectify Entry No. 5, 6, 7, 8 and 9 of the Green Card. 10. **Cross Examination of Land Registrar by Mr. Ondabu Advocate.** 11. The Land Registrar confirmed that when the transfer was effected the original title had to be surrendered. They did not have the title surrendered. There was no transfer from Mushiri Juma Mboga to Appollo Hotels Ltd. With reference to the Green Card by the Plaintiff’s bundle; it was a photocopy, he did not have it with him. Plot No. 2065 – from David Kandie to Gisimba General Enterprises Limited, he had the transfer forms and the Green Card for Plot No. 2066 from the Government Printers; he would give a genuine search. 12. According to the witness with reference to the official search for Plot No. 2065 the witness told the court that it was for Gisimba Enterprises Limited issued on 25th October, 2012 for parcel No. 394 there were no other records. His own opinion, these documents were plucked out. As a conveyancing lawyer would advise on the authenticity of the documents. With reference to the mutation forms, the witness told the court that there were 12 subdivisions from parcel no. 394 and he confirmed that this was a genuine title. 13. **Cross Examination of Land Registrar by Mr. Kazungu. Advocate** 14. The Land Registrar stated that who issued the Green card in the year 2014 were different. He used the information from Gazette Notice to open Green Card in the year 2012. 15. **Re - Examination of Land Registrar by Mr. Mwandeje Advocate.** 16. The witness told the court that he did not have a copy of the Mutation form for sub – division of the Plot No. 394. The Kenya Gazette gave 60 days objection. There was no application for 2 years. Notice was published in the year 2012 up to 2014 when the new card was open. No objection was received from the office. 17. On 7th February, 2024 the 6th and 7th Defendants through their Legal Counsel Mr. Mwandeje Advocate marked their case closed. 18. **The case by the 8th Defendant** 19. The 8th Defendant denied the contents of the Plaint. The 8th Defendant called its first witness, DW - 1 who testified on 4th December, 2019 that: - 20. **Examination in Chief of DW - 1 for the 8th Defendant by Advocate.** 21. DW - 1 told the court that under oath and testified. He was ALFRED KAIBUNGA BAARIU in English language. He was a businessman in Nairobi and Rwanda and the 8th Defendant herein. Upon realizing that his neighbor was sued, he applied to be joined as the 8th Defendant. Sometime in mid – 2012 while on holiday in Diani and he liked the place and he asked the people in the cottage where he was living whether there was land for sale. He met the 4th Defendant through the locals and he purchased ½ acre Plot No. Galu Kinondo/2064. Subsequently, he instructed his advocates who proceeded to do due diligence where they did official searches at the Kwale Land Registry and checking the Green Card, getting consents, and eventually making payments of Kenya Shillings Two Million Six Fifty Thousand (Kshs. 2,650,000/-) to the vendor and proceeded to register the title in his name. 22. The title in his name was issued in October, 2012. A search was done and it was in his name. After sometime in year 2013, he was informed that the plot adjacent to Plot No. 2064 was available for sale. He proceeded in July, 2013 to instruct the process of purchase through the same advocate Kinoti & Kibe Advocates in Nairobi for a consideration of Kenya Shillings Two Million Eight Thousand (Kshs. 2,800,000/-). The same process was done where the search, consent from Land Control Board, payment of stamp duty and ownership was conferred to him. 23. DW - 1 told the court that he had the original title deed issued on 9th September, 2013 for plot No. Kwale/Galu Kinondo/2063. After he purchased the plot, he confirmed he occupied both Plots No. 2063 and 2064. At Page 9 was the sale agreement dated 20th September, 2012 between himself and Mr. David Kandie, the 5th Defendant for Kwale/Galu Kinondo/2064. He have the original Agreement for sale produced as the Agreement as an exhibit – 8th D. Exhibit 1. At page 15 was the agreement for sale for Plot No. 2063 between herself and Mr. Peter Kaburu Mungania, dated 15th July, 2013 which he produced as an exhibit – 8th Defendant. Exhibit No. 2. 24. DW - 1 stated that at page 24 of his documents was a search dated 2nd October, 2012 showing that the owner as at 20th February, 2012 for Plot No. 2064 was David K. Kandie which he produced the certificate of official search together with receipt as an exhibit – D. Exhibit 3 (a) and 3(b). At Page 25 was certificate of search dated 25th October, 2012 post the purchase and showed he was the owner as at 25th October, 2012 and produced the search as E. Exhibit 4. At page 26 was the application for official search for Kwale/ Galu Kinondo/2064 and confirmed that he paid a sum Kenya Shillings Five (Kshs. 500/-) marked as Defendant. MFI Exhibit 5. 25. DW - 1 reiterated that at page 27, he subsequently did a search which showed Peter Kaburu was the owner of Kwale/Galu Kinondo/2063 as at 21st February, 2012. He produced the certificate of official search as D. Exhibit 6 and the receipt 6(b). At page 29 was a copy of Green Card for Kwale/Galu Kinondo/2064 certified by Land Registrar Entry No. 1 was in name of David Kandie and entry No. 3 was in his name which he produced. He produced the green card at page 29 marked for identification D. MFI - 7. 26. DW - 1 stated at page 30 was a Gazette Notice No. 4544 by the Land Registrar. When the Registrar acknowledged that the Green Card existed, but was lost, issued the Gazette Notice – D. Exhibit 8 for 2063. At Page 31 was a transfer of Land dated 30th August, 2013 transferring Plot No. 2063 from Peter Kaburu to himself which transfer he produced as an exhibit – D. Exhibit 9. At Page 32 was a transfer of Plot No. 2064 from David Kandie tome dated 15th October, 2012; he relied on the transfer as evidence which he produced as D. exhibit 10. At page 33 was a letter of consent dated 26th September, 2012 for Plot 2064 which he produced as D. Exhibit 11. At page 34 was the copy of the title deed for Kwale/Galu Kinondo/2064 in his name which was dated 25th October, 2012. He produced it as an exhibit – D. Exhibit 12. He referenced a title deed appearing at page 36 of the exhibits, the deed pertained to Plot No. 2063 and was registered in his name on 9th September 2013; the same was produced as D. Exhibit No. 13. At page 38, was a demand notice for Plot 2064 by Kwale County government issued to David Kandie which he produced and it showed that the County Government of Kwale recognized him as the owner. The demand for Plot 2063 was in page 39. The Demand Notices marked DMFI No. 14 and 15. 27. At page 40 was a survey mal from the survey of Kenya. It was from the Director of Surveys with Entry No. 47 showed sub-division of Plot No. 394 to Plot Nos. 2060 to 2017 – on 28.3.2012. His plot Nos. are 2063 and 2064 which fall within the map. This map had been purchased from the Director of Surveys as part of due diligence which shows parcel No. 394 had been subdivided in march 2012 and when we did our due diligence, they found that they exist in the map. 28. The witness told the court that he did the agreement in October 2012 having prepared the map. This sheet existed since the Director of surveys conformed; he wished to produce the map be produced as an exhibit marked DMFI – 16. At Page 23 in the Plaintiff’s documents was a Green Card opened on 15th November, 1974. Entry No. 4 of 13th January, 1986 in name of Apollo Hotels Limited which was closed on 13th January, 1986. According to the witness as at 22nd March, 2013, David Kandie was the registered owner. At page13 – 16 was a Gazette Notice No. 5925 dated 4th May, 2012 over Kwale/Galu Kinondo/533 and 394. The Green Card was issued on 4th May, 2012. As early as February, 2012, the registry issued searches showing that there was closure and sub-division done. Plot No 394 did not exist at the time they did their due diligence. 29. DW - 1 told the court that his prayer was to be allowed to enjoy what he purchased for value and conferred to him by the relevant state agencies. He prayed that the suit be dismissed with costs. He relied on every averment in his witness statement which he adopted. 30. **Cross examination of DW - 1 for the 8th Defendant by Mr. Gakuo Advocate.** 31. DW - 1 told the court that that he had seen Entry No. 4 on the Green Card at page 23 of Plaintiff ‘s List of documents. He had no knowledge of the cancellation of Plot No. 394 was done illegally. He had no knowledge if the documents he produced were not correct. They did due diligence. In his defence, he conceded that Kwale/Galu Kinondo/394 was closed on sub-division on 20th February, 2012. He would not know who caused the sub division of Plot No. 394; Plot No. 2063 and 2064 came from Plot No. 394. He did not conduct a search to know who the owner of Plot 394 was. He was purchasing 2063 and 2064 and not Plot No 394. 32. DW - 1 testified that he did not know of Plot No. 394 had not been sub - divided. It was not true that the documentation he produced were crafted to mislead this court. He bought Plot 2064 from Mr. David Kandie for a sum of Kenya Shillings Two Million Six Hundred and Fifty Thousand (Kshs. 2,650,000/-). The witness had no business doing due diligence on Mr. David Kandie. His identity card must have been with his lawyers. He could see the sale agreement at page 8 in his documents. Paragraph 5.3 a(i) the completion Documents the original certificate of title. There was no other document mentioned. He signed the sale agreement. The witness delivered the original certificate of title. The copy of the title in Mr. Kandie’s name would be with his advocate as the original was surrendered upon transfer. 33. DW - 1 testified that his advocate conducted a search on 2nd October, 2012 (Page 24). His advocate was Kinot & Kibe in year 2064. The advocate for the seller was Musyoki Mogaka & Company Advocates. His advocates were Kinoti & Kibe applied for the search. He could not recall when he appointed his current advocate. The application for search was done by Mulwa and Mulwa; he got consent to transfer (page 33). He did not attend the Land Control Board; he had no knowledge of whether an application was made by his advocate. It was not true that the letter of consent was a forged document. It had no date of application. He would not state that there was no application. He did not have the applicant’s copy of the consent. it was not because no application for consent to the Land Control Board was not made. 34. According to the witness at Page 15, Plot 2063 was sole to him by Peter Kaburu. He was not interested in him but the parcel. He did not have a copy of the title in Peter Kaburu’s name. He advocate was Kinoti & Kibe Advocates. The witness told the court that page 15 was drawn by Kinoti & Kibe Company Advocates while Page 23 was drawn by Musyoki Mogaka & Company Advocates. At page 18, on completion date, the witness would get the original certificate of title in respect of the property; this was the transfer he signed (page 31). The transfer was registered at the Lands Office. 35. Further DW - 1 told the court that in the bundle, he did not have an application for registration, he did not have the receipt for the registration. He did not have receipt for payment of stamp duty in the bundle; but he had proof. In the transfer it was stated a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-) while the agreement the purchase price was a sum Kenya Shillings Two Million Eight Thousand (Kshs. 2,800,000/-). At page 31, the PIN number of Peter Kaburu was not indicated. He bought Plot 2064 for a sum of Kenya Shillings Two Million Six Hundred and Fifty Thousand (Kshs. 2,650,000/-) and the transfer was a sum of Kenya Shillings One Million (Kshs. 1,000,000/-). He did not have the assessment of the valuer. He did not have the letter of consent for year 2063. 36. The witness did not have the application for consent; he did not have copies of the previous title deeds, but they can be availed. At page 15 was the Agreement for the 2063. He did not have the certificate of beacons. Those documents were in the conveyance file. He knew those documents could be availed. He purchased 2063 from Peter Kaburu; he did not ask whom he bought it from. He did not know who caused the submissions. The witness found the units had been sub - divided. He did due diligence on the properties that he was being shown. 37. DW - 1 reiterated that he had seen the Gazette Notice claiming loss of Green Card at page 11. It was absurd according to him that the same Land Registrar was restoring what was in his name. He did not raise any objection. 38. **Cross examination of DW - 1 for the 8th Defendant by Mr. Makuto Advocate.** 39. DW - 1 confirmed that he saw the Gazette Notice No. 5925 at Page 16 the day of his testimony. He did not remember whether this was brought to his attention. He became aware that the green card was missing around the name of purchase. The name in the gazette notice at page 30 of his document was Alfred Kaibunga Bariu. The date of the gazette notice was dated 4th July, 2014. The sale agreement for plot 2063 was 15th July, 2013. The gazette notice at page 16 in Plaintiff’s documents was dated 4th May, 2012; this gazette notice superseded his document. He purchased Plot No. 2064 from Mr. David Kandie; he met him for the first time around July, 2012. They signed the sale agreement in Nairobi. He did not inquire from Mr. Kandie how he acquired the property. He could see page 23 of the Plaintiff’s bundle of documents. The witness had seen the document. The Green Card relates to parcel No. 394. At Page 34 in his bundle was plot No. 2064 which he bought from David Kandie. 40. DW - 1 told the court that at the property Section Plot 2064 was a sub - division of Plot 394. It was issued on 25th October, 2012. The Gazette Notice on page 16 of Plaintiff’s documents was issued on 4th May, 2012. It was to last for 60 days before a new register was opened. At page 9 – 14 of the bundle was the sale Agreement for Plot 2064. The consideration was Kenya Shillings Two Million Six Fifty Thousand (Kshs. 2,650,000/-). He would not know what stamp duty was based on but he knew it was based on assessment. What was declared was a sum Kenya Shillings One Million (Kshs. 1,000,000/-). That consideration was not the same as what was in the Sale Agreement. They declared the assessed value. It was not based on his instructions to his advocate; he was not sure he was told about the subsequent declaration. The purchase price for Plot 2063 was a sum of Kenya Shillings Two Million Eight Thousand (Kshs. 2,800,000/-). The sale agreement was dated 15th July, 2013. He declared the consideration as a sum Kenya One Million Five Thousand (Kshs. 1,500,000/-). That was not similar to what was on the sale agreement. He instructed his advocate to pay on the assessed value. 41. DW - 1 told the court that at page 32 was the transfer based on my instructions. The consideration to be declared was a sum of Kenya Shilling One Million (Kshs. 1,000,000/-). This was not similar to the consideration in the Sale Agreement. In the bundle, the transfer did not have the transferee section such as Photographs and signature. At page 33 was the Letter of Consent. It did not have the Registration number. He had not produced Letter of Consent for Plot No. 2063. He could see the map. Entry 47 on the amendments for Plot Nos. 394 mutated to 2060 to 2071 was dated 28th March, 2012. 42. DW - 1 told the court that at page 24 of Plaintiff’s documents Entry No. 10 of 20th February, 2012, closed on sub – division. (See New Nos. 2066 and 2071). It did not mention 2060, 2061, 2063, 2064. The last number was 2071. The last Entry in the Map was 2060 to 2071. The Sale Agreement at page 15 in his documents was dated 15th July, 2013. Gazette Notice 5925 was dated 4th May, 2012. The witness entered into the Agreement on 15th July, 2013. 43. The witness agreed that notice had already been given by the Land Registrar. After he became aware of Gazette Notice 1925, he had not made inquiries to David Kandie about it. 44. The 8th Defendant called DW - 2 who testified as follows: - 45. **Examination in Chief of DW - 2 for the 8th Defendant by Mr. Musyimi Advocate.** 46. DW - 2 for the 8th Defendant told the court under oath and testified in Swahili language. He was called ALFRED KAIBUNG’A BAARIU. He purchased property land reference Kwale/Galu Kinondo – 2064 purchased on 25th October, 2012 he had the original title deed and a Transfer. He conducted an official search. The owner was Kandie, he never looked for Plot No. 394, he had no knowledge of 392 until the institution of the suit Kwale/Galu – 2063 – from Peter Kaburu. He had the title and he conducted search. From both the property he got the consent and he paid for the stamp duty. He was represented by Mulwa Advocate – they went to the Survey of Kenya, the two property had R.M. They were authenticated. He had no doubt of these property I was given the land by Government. The witness met David Kandie during the holiday. He was hosting them as A & B. He bought the 2nd Plot a year later as he liked it, he would like the court to protect him as bona fide and innocent purchaser for value and hence need courts protection. 47. **Examination in Chief of by Mr. Musyimi Advocate.** 48. The witness stated under oath and testified in English language. He was SAMUEL WAINAINA GITAU. He was Land Surveyor by profession. He was the County Surveyor at Kwale. He had a certified copy of the mutation form dated 9th February, 2012 and was filed on 19th June, 2012 by the 4th Defendant. It was for the sub – division of Kwale/ Galu Kinondo/ 394. There were 12 portions – 2060 to 2071. It was certified on 31st October, 2023 of the Mutation form. According to him as a Surveyor the parcels of Kwale/Galu Kinondo/394 (1.5 HA) as from 20th February, 2012 the parcels ceased from existing as it was super ceded by the sub-division. With reference to the MAP the witness told the court that it was amended. It was certified on 31st October, 2023. It was amended on 28th March, 2012. The map had been produced by the 5th Defendant, but this one was for the new edition. The amendment of 394 was no. 47. Anyone buying the MAP today would see this. The implication of the certificate of the MAP should be that it reflects the sub - division. 49. **Cross Examination of the Land Surveyor by Mr. Gakuo Advocate.** 50. The witness told the court that he had been a land surveyor for 10 years. He had worked in Kisii, and elsewhere. It was certified by the Regional Surveyor Coast for RLA the sub-division is at the District Level. It does not go. There was a consent, there was a search for No. 394 – it’s a copy which he brought is not certified, perhaps it does not exist. He had brought the certified copy of the Mutation Form because it existed under Cap. 300 when the property is sub-divided, the title is left with the Land Registrar. The title deed was taken back to the Land Registrar after the sub-division. It was cancelled. He had never seen the title deed. 51. With reference to the list of documents by the 4th Defendant, the witness told the court that one of them was a title deed for Plot No. 394 for Apollo Hotels Ltd.. The witness was shown the original certificate of title and search certified/signed by Njoroge the then Land Registrar before the sub-division. From the Mutation Form, one could never tell the owner of the sub-division reflected thereon. The Maps were amended on daily basis. They were public documents. The Mutation Form was in the name of David Kandie the owner of No. 394 – he caused it to be sub-divided into portion No. 2060 to 2070. It was signed by the Land Registrar – By Mr. E. Marwanga. He saw the original title by Apollo. 52. **Re - Examination by Mr. Musyimi Advocate.** 53. The witness told the court that the Mutation Form was signed by the owner of the land who had to show an official Search of the land. The Land Registrar had signed the Mutation Form. The parcel no. 394 would be in their offices. They never interacted with the title, but in this case they found that the land belonged to Mr. David Kandie. 54. **The case of the 9th Defendant** 55. The 9th, 10th, 11th and 12th Defendants filed their statement of defence dated 14th February 2023, maintaining that they lawfully purchased subdivision number 2062, 2060, and 2061 and 2067 respectively from the 4th Defendant while the 12th Defendant lawfully purchased sub - division 2068 from the 2nd Defendant at a valuable consideration without notice of any apparent defect of title. The 9th Defendant called their first witness on 7th February, 2024 who testified as follows: - 56. **Examination in Chief of DW - 1 for the 9th Defendant by Mr. Kazungu Advocate.** 57. The witness was sworn and testifies in English language. He was JOB KIGEN KANGOGO. The 9th and 12th Defendants had 12 documents. He was in court on behalf of the other Defendants; they had assigned him the role of care taker of the land from year 2012. He got Mr. David Kandie who guided him at Kwale Kinondo. They were Plot numbers 2060, 2061, 2067 and 2062 and 2068. They undertook an official search after David Kandie offered to sale the parcels. The witness asked his advocate to undertake the due diligence; after the searches they were supplied with Title deeds. He had the 5 original certificates of titles deeds. (He showed the court the original title deeds). * 2068 – 16th July, 2013. * 2062 – 19th December, 2012. * 2060 – 19th December, 2012. * 2067 – 19th December, 2012. * 2061 – 19th December, 2012. 1. According to the witness he paid up all the statutory dues of the stamp duty. 2. **Cross examination DW - 1 for the 9th Defendant by Mr. Gakuo Advocate.** 3. The witness told the court that he purchased those plots from Mr. David Kandie. It was for a sum of Kenya Shillings Two Million Six (Kshs. 2,600,000/-) per plot. They were ¼ acre each. He never purchased the plots from Apollo Hotels Ltd. He had never met them before. 4. **Cross Examination of DW - 1 for the 9th Defendant by Mr. Mwandeje Advocate.** 5. The 9th Defendant told the court that he bought the plots in the year 2012. He caused his Advocates who conducted the official searches. The searches were not attached in the bundle of his documents. He had the sale agreements between himself and Mr. David Kandie though they were not attached. 6. The 9th Defendant through their advocate Mr. Kazungu Advocate closed their case on 7th February, 2024. 7. **The case of the 12th Defendant** 8. The 12th Defendant called its witness on 8th May, 2024 who told the court that:- 9. **Examination in Chief of the 12th Defendant by Mr. Musyimi Advocate.** 10. The Witness was sworn and he testified in English language. He was called EVANS NYATIGO MARUANGA. He was a State Counsel with the Attorney General in Public Trustee at Kisumu. He worked in Kwale in January, 2011 to March, 2014. He was called upon to authenticate the signature on the green card. With reference to the Kenya Gazette Notice – Document No. dated 4th May, 2012 on Kwale/ Galu/ Kinondo/ 3635, 533 and 394. Normally when the Green card was lost and the owner could not trace it he swore an affidavit. He paid the requisite fees at the Government Printers to be published for 60 days and he came back with it and got the title to be reinstated. But this period he was the land registrar and the same was issued by C.K. Ngetich. Mr. Charles Ngetich took over after him in the year 2015. The green card should have been opened by Koskei. After the expiry of the 60 days, the Complainant was to surrender the original title deed. With reference to the certified green card in the bundle by the Plaintiff; the witness told the court that it was certified on 2nd March, 2013. The last entry no. 10 – the title was closed for sub – division and new title deed no. 2160 – 2066. In such a case, the original title deed was surrendered and the new numbers issued. 11. The witness told the court that one could not get an official search. The closing came first then the gazettement. With reference to the mutation form by the 4th Defendant, the witness told the court that the property being subdivided was Plot No. 394 which he signed the mutation form – it was illegal and irregular to sign the documents without having the original title and other documents. The subdivision was from the Parcel No. 394, the sub – divided parcels all got the original title deed. For the property to have been transferred from Mushihiri Juma Mbogo to Apollo Hotels – there ought to have been transfer documents, stamp duty payment among others in the parcel file. According to the information in their possession the original title deed and registration in the mutation form. If Apollo Hotels had a complaint, he should have moved to have the cancellation of Entry Numbers 6 to 9 of the Green Card. 12. **Cross Examination of Mr. Evans N. Maruanga by Mr. Gakuo Advocate.** 13. The witness told the court that he was a qualified Land Registrar. He was certified the document as he had the original. With reference to the green card it had 3 parts. It was incorrect to sign a green card – on the encumbrances section. The witness told the court that he had to certify it as that was what was presented to him. Chesire was Entry No. 8 who bought from Christopher Mbuguss who bought from Apollo Hotels Limited. He was not aware of the fact that Apollo Hotel Limited never sold the land. There should have been a transfer. He saw that Apollo Hotel Limited had the original title deed. It would have to be cancelled. What was lost was the Green card and not the title deed. 14. According to the witness Entry no. 7 the Land Registrar – Charles Ngetich wrote “ISSUED” instead of “RE - ISSUED” – “RE – INSTALED”. In essence, it declared the original title deed held illegal i.e. 26th September, 2012. But there could not be two parallel processes yet the matter was in court. From the new green card after the gazettement, the same said that the green card had re- surfaced. Upon him saying that the original Green Card had re - surfaced meant that it went back to the original owner. 15. **Cross examination by Mr. Mwandeje Advocate.** 16. The witness told the court that when he was closing the sub -division, from the records Mr. David Kandie was not required to produced the original Title Deed. 17. **Cross examination by Mr. Kariuki Advocate.** 18. The witness told the court that there were three (3) Green Cards. They should have been re - instated and not issued; the Entry no. 6 to 9 should have been cancelled. Mr. Ngetich should have made copies of the title deed and laid what they were. The Plaintiff was aware that the Green Card been issued and he should have challenged them – by having the title deeds be cancelled. 19. **Re – examination of Mr. Maruanga Advocate.** 20. The witness reiterated that in the year 2013, the status of the land was that it had been sub – divided. The new Green Card was opened on 5th December, 2014 – Ngetich to Kwale 2014. The Plaintiff was pursuing a parallel process simultaneously. The Plaintiff was aware of all this and he should have been candid. 21. The 12th Defendant closed its case on 8th May, 2024 through its Legal Representative Mr. Marwanga Advocate. 22. **Submissions** 23. On 21st June, 2024 after the Plaintiff closed their case, the Honourable court directed that the parties file their submissions within stringent timeframe thereof on. Pursuant to that the Honourable court reserved a date to deliver its Judgement on notice. Eventually, it was delivered on 3rd July, 2026 accordingly. 24. **The Written Submissions by the Plaintiff** 25. The Plaintiff through the Law firm of Messrs. Muturi Gakuo & Kibara Advocates filed their written submissions dated 25th March, 2024. Mr. Gakuo Advocate commenced his submissions by providing the Court with a brief background of the subject matter. The Learned Counsel submitted that in the Further Amended Plaint filed on 28th February, 2023 (but amended on 15th February, 2023), the Plaintiff prayed for Judgement against the Defendants jointly and severally as above stated. 26. On the chronology of the key events, the Learned Counsel averred that from the various pleadings filed by the parties hereto, the genesis of this suit can be condensed as follows: 27. The Plaintiff was the registered proprietor and holds to date the original title for the parcel of land known as LR. No. KWALE/GALU KINONDO/394 - the suit property. The Plaintiff never sold or transferred the suit property to any person, let alone the Defendants herein. 28. The 1st Defendant i.e. Christopher Mbuggus purporting to be the owner of the suit property allegedly sold it to the 2nd and 3rd Defendants i.e. Kiprotich Chesire and Richard Muiruri Kuria. 29. The 2nd and 3rd Defendants purporting to be the registered joint owners of the suit property allegedly sold it to the 4th Defendant i.e. David K. Kandie. 30. The 4th Defendant subsequently sub - divided the suit property into 12 equal plots which were given new plot numbers viz Galu Kinondo 2060, 2061, 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070 and 2071 respectively. 31. Upon the sub - division: 32. The 4th Defendant admitted to have sold the sub-divided parcels except Galu Kinondo 2069, 2070 and 2071 which he retained. 33. The 4th Defendant admitted to have sold Galu Kinondo 2065 and 2066 to the 5th Defendant i.e. Gisimba General Enterprises Limited. 34. The 4th Defendant sold Galu Kinondo 2063 to Peter Kaburu Mungania who then allegedly sold it to the 8th Defendant i.e. Alfred Kaibunga Baariu. 35. The 9th to 12th Defendants i.e. Job Kigen Kangogo, Minnie Jemutai Tubei, Josephine Chepkechei and Eunice Wairuri Kibera were somehow registered as owners of the remaining sub - divisions, who were later joined into these proceedings pursuant to their own application to be joined as Defendants, which application was duly granted by this Honourable Court, and the Plaint was amended accordingly to have them as Defendants. 36. According to the Learned Counsel, the 1st Defendant filed a Memorandum of Appearance through Messrs. Manwa Mabeya & Co. Advocates dated and filed on 16th May, 2013. A Notice of Change was filed by Messrs. Ojode Udoto & Onjoro Advocates on 9th July, 2013 (dated 5th July, 2013). The 1st Defendant never filed any defence or any other documents thereafter. The 2nd and 3rd Defendants filed a Memorandum of Appearance through Messrs. Manwa Mabeya & Co. Advocates. Notices of Change were filed by Messrs. S.M. Otunga & Co. Advocates on 5th July, 2023 (dated 5th July, 2023) and thereafter by Messrs. Munyao, Muthama & Kashindi Advocates 9th March, 2021 (dated 9th March, 2021). The 2nd and 3rd Defendants filed a Defence on 8th October, 2013 (dated 11th September, 2013). 37. The 4th Defendant filed a Memorandum of Appearance through Messrs. Kadima & Co. Advocates. Notice of Change was filed by Messrs. Ondabu & Co. Advocates on 5th July, 2023 (dated 5th July, 2023). The 4th Defendant filed a Defence on 22nd June, 2015 (dated 19th June, 2015). The 5th Defendant filed a Memorandum of Appearance through Messrs. Manwa Mabeya & Co. Advocates. A Notice of Change was filed by Messrs. Mulwa Nduya & Co. Advocates on 7th April, 2014 (dated 2nd April, 2014). The 5th Defendant filed a Defence on 9th June, 2014 (dated 5th June, 2014). The 6th and 7th Defendants filed a Memorandum of appearance through Attorney – General. The 6th and 7th Defendant filed a Defence on 1st November, 2013 (dated 16th October, 2013). 38. The Learned Counsel further submitted that the 8th Defendant filed a Memorandum of Appearance through Messrs. Mulwa Nduya and Co. Advocates. The 8th Defendant filed a Defence on 9th June, 2014 (dated 5th June, 2014). The 9th, 10th, 11th and 12th Defendants filed any Defence, which mainly consisted of denials and had totally failed to proof the doctrine of bona fide purchase for value of the aforesaid Plot Numbers 2062, 2060, 2061 and 2067 without notice of any defect. The Defendants ought to have proofed that they conducted due diligence which they have totally failed to do, hence the aforesaid Title Deed they are holding should be canceled as the Defendants have also totally failed to proof their root course and more importantly the doctrine of bona fide purchase for value. 39. On the Plaintiff’s case. In a nutshell, the Learned Counsel submitted that at all times material to this suit, the Plaintiff was, and still is, the registered proprietor of the suit property (Kwale/Galu Kinondo/394). Sometime in March, 2012 or thereabouts, the 2nd, 3rd, 4th and/or 5th Defendants by themselves, their agents, servants and/or employees trespassed upon the suit property without the Plaintiffs consent, approval or permission and started constructing thereon a permanent wall thereby misappropriating and/or misusing the Plaintiff's property. 40. The 2nd, 3rd, 4th and 5th Defendants in collusion/connivance with the 6th Defendant and/or his officers fraudulently and illegally purported to effect transfers in respect of the suit property and thereafter clandestinely proceeded to sub - divide the suit property in at least 12 sub-divisions and further unlawfully and illegally caused the said sub-divisions to be registered in the names of third parties (namely all the Defendants). The 1st, 2nd, 3rd, 4th and 5th Defendants were not at any time material to this suit authorized or empowered to sell or agree to sell, transfer or deal in any other manner howsoever with the suit property. 41. The Further Amended Plaint listed the following as particulars of fraud and illegalities committed by the Defendants: - 42. **That at the time of the purported transfers and the sub-division and subsequent transfer to third parties by the Defendants, the said suit property was the property of the Plaintiff whose consent/approval was absolutely critical before such sale or transfer or any other conveyance of whatever nature could be proceeded with.** 43. **The 6th Defendant and/or his officers negligently and/or frequently and/or unlawfully purported to sub-divide and register transfers in respect of the suit property in contravention of the law.** 44. **Without prejudice to the foregoing, the 1st, 2nd, 3rd, 4th and 5th Defendants clandestinely and/or deceitfully and/or through gross misrepresentation to the 6th Defendant caused transfers to be registered in respect of the suit property and thereafter proceeded to sub-divide the suit property into at least 12 sub-divisions and further caused the said sub-divisions to be registered in names of third parties when they knew or ought to have known that the 6th Defendant did not have the capacity to do the same without the Plaintiff's knowledge, consent and/or approval.** 45. **The 6th Defendant abused his statutory duty as ordained by law when by the acts of his officers at the Lands Registry he purported to effect and/or register sub-divisions and thereafter register transfers to third parties against the Plaintiff's title and which title was still in possession of the Plaintiff and without the authority and/or consent of the Plaintiff as the registered owner.** 46. According to the Plaintiff, the 4th and 5th Defendants as at the date of filing this suit were in the process of constructing permanent structures in sections of the suit property without the Plaintiff's consent or approval, thereby misusing the suit property. The 1st, 2nd, 3rd, 4th and 5th Defendants despite demand from the Plaintiff failed refused and/or neglected to vacate the suit property and continued with their illegal actions, thus making it necessary for the Plaintiff to institute these proceedings 47. The Plaintiff’s claim against the Defendants was for orders, inter alia, for a perpetual injunction to restrain them from selling, transferring, charging, pledging, leasing or in any manner whatsoever disposing or agreeing to dispose of any interest in the suit property and a further order of rectification to cancel all entries relating to the illegal transfer and sub-division of the suit property. The Plaintiff further sought a mandatory injunction order to compel the Defendants their agents, relatives, servants and/or any other person acting on the authority or instructions of the Defendants to vacate the suit property herein and desist from dealing or interfering with the suit property and an order for the demolition of the structures illegally constructed by the Defendants on the suit property. The Plaintiff accordingly claimed against the Defendants vacant possession of the suit property. 48. On the testimony of the Plaintiff’s witness. The Learned Counsel recounted that for the Plaintiff, two witnesses testified in court namely; Shashikant Shah and Peter Mwaura, trading as Karanja P.M. & Associates Licensed Land Surveyors). PW - 1 (Shashikant Shah), testified that as a Director of the Plaintiff, Shashikant Shah testified and produced various exhibits to buttress the Plaintiff's case. His testimony can be recapped as follows:- 49. The Apollo Hotels [the Plaintiff] was the registered owner of the suit property. It was issued with the title on 14th January, 1986. PW - 1 had the original Certificate of Title in court which he produced and was marked as Plaintiff Exhibit No. 2. He also had a copy of the search conducted in 2015 that showed that the Plaintiff is the registered owner of the suit property. PW - 1 produced in court the original search which was marked as Plaintiff Exhibit No. 3. PW - 1 also produced in court a copy of the Green Card which was marked as Plaintiff Exhibit number 4. The Green Card showed that the Plaintiff was and still is the registered owner of the suit property and that Certificate of Title was issued to that effect in January, 1986. 50. The suit property was thereafter allegedly transferred to Christopher Mbuggus [the 1st Defendant]on 26th September, 2002. Neither the Plaintiff nor its Directors have ever sold the suit property to anybody. PW1 reiterated that the Plaintiff to date is still the registered owner of the suit property. The Plaintiff bought the suit property from one Juma Mboga on 26th January, 1985 for a sum of Kenya Shillings Ninety Thousand (Kshs. 90,000/-) and a transfer to that effect was duly executed. PW - 1 produced a copy of the transfer in court which was marked as Plaintiff Exhibit No. 5. On the last page of the Transfer, it was evident that the suit property was registered on 13th January, 1986 to the Plaintiffs name. The Plaintiff duly obtained Letter of Consent from the Land Control Board (LCB). PW - 1 produced in court the Letter of LCB dated 4th December, 1986 which was marked as Plaintiff Exhibit No. 6. 51. The Learned Counsel submitted that the Plaintiff had asked a surveyor, Zimmerlin to fix beacons on the suit property vide a letter dated 23rd December, 1985 which PW - 1 produced in court and was marked as Plaintiff Exhibit No. 7. The surveyor, Zimmerlin wrote to the Land Registrar Kwale [6th Defendant] informing him of the surveyor's intention to place beacons on the suit property vide a letter dated 24th January, 1986 which PW - 1 produced in court and was marked as Plaintiff Exhibit No. 8. After receipt of the aforesaid letter by the Land Registrar, the surveyor wrote to eight people who are neighbors to the suit property inviting them to be present to witness the placing of beacons on 28th May, 1986. PW - 1 produced in court the letter to that effect marked as Plaintiff Exhibit No. 9. 52. The Plaintiff also applied to the Kenya Power & Lighting Company (KPLC) on 30th May, 1987 requesting them to connect power supply to the suit property. KPLC in its response asked the Plaintiff's approval to enable it to proceed. PW - 1 produced in court the KPLC letter marked as Plaintiff Exhibit No. 10. In the year 2012, the Plaintiff found people on the suit property and immediately did a fruitless a search in March, 2012. The Plaintiff then retained the services of an advocate who wrote to the Land Registrar vide a letter dated 7th March, 2012. PW - 1 produced the said letter in court and it was marked as Plaintiff Exhibit No. 11. 53. The Land Registrar then responded indicating that the records relating to the suit property were missing at the registry and he specifically made reference to the Green Card. At the insistence and expense of the Plaintiff, the Land Registrar placed a notice of the missing green card in the Kenya Gazette. PW - 1 produced in court the Kenya Gazette notice and it was marked as Plaintiff Exhibit No. 12. A letter dated 16th April, 2012 was then written by Kwale Land Registrar addressed to the Government Printer for publication of the notice. PW - 1 produced in court the said letter marked as P.E.-13. Loss of the Green Card was thereafter published in the Kenya Gazette on the 4th May, 2012. PW - 1 produced in court the said publication marked as Plaintiff Exhibit No. 14. 54. According to the Learned Counsel, the suit property had now been illegally sub - divided into 12 plots. The Plaintiff had never sold the land to anybody. On the green card, the names of persons written on the subsequent entries are the Defendants in this case. The Plaintiff had never sub - divided the suit property. The Original Title Deed was still in the Plaintiffs’ custody. A demand notice dated 20th May, 2013 was issued which showed the owner of the suit property as the Plaintiff herein. PW - 1 produced the demand notice in court and it was marked as Plaintiff Exhibit No. 15. The Plaintiff had been paying land rates in respect of the suit property. The Plaintiff paid the outstanding rates on 2nd April, 2013 vide a cheque for a sum of Kenya Shillings Thirty Three Thousand Seven Fifty Hundred (Kshs. 33, 750/-). PW - 1 produced in court the said cheque and was marked as Plaintiff Exhibit No. 16. PW - 1 testified that the Plaintiff has never had any transaction with the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 12th Defendants. He also confirmed that the Plaintiff did not give any consent for the sub - divisions or the transfer of the suit property. PW - 1 produced photographs of the buildings erected on the suit property and they were marked respectively as Plaintiff Exhibit Nos. 17(a), 17(b) and 17(c). 55. A certificate of official search issued by the Land Registrar confirmed that the suit property rightfully belonged to the Plaintiff. The Plaintiff was a registered company. PW - 1 produced the Plaintiff's Certificate of Incorporation in court which was marked as Plaintiff Exhibit No. 18. As regards the 2nd and 3rd Defendants’ statement of Defence, PW – 1 reiterated that the Plaintiff had never sold the land to anybody and that he has never met the 2nd and 3rd Defendants. During cross examination, PW - 1 maintained, *inter alia*, that he had never met the 4th Defendant and that no consent was given by the Plaintiff for the transfer of the suit property. 56. On re-examination, PW - 1 confirmed that he had the Transfer Form which showed that Apollo Hotels Limited bought the suit property from Juma, the seller who duly signed the transfer. PW - 1’s concern in the green card was that the Plaintiffs name was cancelled yet the Plaintiff had never sold the suit property to anybody let alone the Defendants. PW - 1 also confirmed that he had the original Title Deed and a copy of the transfer from the Vendor. 57. The second witness PW - 2 (Peter Mwaura Karanja) of P.M. & Associates Licenced Land Surveyors), a registered surveyor since 1984, was instructed by the Plaintiff to investigate the suit property to ascertain the position on the ground. With a copy of the suit property's Title Deed, PW - 2 went to the Provincial Surveyor's Office Ministry of Lands and purchased a Registry Index Map (R.I.M) and realized that the suit property did not exist on the RIM as it was sub - divided into 12 Plots namely: Plot Numbers 2060, 2061, 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070 and 2071 respectively. PW - 2 produced the original RIM in court and it as marked as Plaintiff Exhibit No. 19. It is in the Plaintiff's List of Documents at page 34. The RIM being a public document can be accessed by any person at the Provincial Surveyor’s Entry No. 47 on the RIM (the amendments section) shows that the suit property has been subdivided into Plots No. 2060-2071 Office. 58. PW - 2 was also given the Mutation Form at the Land’s Office which form sub - divided the plot. PW - 2 reported findings to the Plaintiff and was informed that the Plaintiff had never given any instructions to anyone to sub - divide the suit property. PW - 2 proceeded to the ground where the suit property is located to ascertain what he had seen from the RIM. He identified the suit property on the ground. It was his evidence that the suit property is the one which was subdivided as there were beacons on the land for the said subdivisions. PW - 2 identified three upcoming buildings which were still being constructed. There was also fencing activities progressing on the sub-plots. The ground matched the acreage on the title which measured 1.5Ha. 59. PW - 2 also prepared his Report dated 30th March, 2012 which was also in the Plaintiff's list of documents. He produced it in court and was it marked as Plaintiff Exhibit No. 20. On cross-examination by the 5th and 8th Defendants, PW - 2 restated that he is a qualified surveyor since the year 1984 hence conversant with the survey process. He reiterated that the RIM showed the official status of the Survey of the suit property and that the suit property does not exist in the RIM produced in court because it was already subdivided and issued with new Plot Numbers 2060 - 2071. PW - 2 stated that as per the Mutation Form, the registered owner of the suit property was David Kandie, the 4th Defendant herein. PW - 2 also stated that the Land Registrar Kwale [6th Defendant] was fully involved in the sub - divisions as per the Mutation Form. PW - 2 testified that as an expert, the Land Registrar would not authorize subdivision of land without the consent of the registered owner and that the Land Registrar must satisfy himself that the signature is of the registered owner of the land. 60. On re-examination, PW - 2 testified that the suit property existed but was later sub - divided and that the previous [RIM] edition would show the suit property before subdivision which was 1.5 ha. He also testified that the Mutation Form shows the suit property [Kwale/Kinondo 394] meaning it is the land being subdivided and that the registered owner subdivided it into 12 portions which are similar to the portions in the RIM produced in court as P.E.-19. Regarding the process of sub-division and amendment of RIM, PW 2 stated that mutations are normally forwarded to the District Land Surveyor to issue new numbers of the subsequent mutation and then forward the mutation forms with mutation numbers to the Land Registrar to authorize the amendment of the RIM. The RIM was then taken to the amendment centre by the surveyor who would then return it to the Land Registrar for registration of the Mutation Form. 61. While reiterating that a mutation must be registered, PW - 2 stated that the Land Registrar is the last person to register the mutation. Most importantly, PW - 2 stated that the mutation before this court was not registered. PW - 2 further testified that the Land Registrar must sign the last portion of the mutation after issuing new titles. In the mutation form in court, the last part has been left blank which implies that the process of mutation is incomplete. On the strength of the Plaintiffs witnesses' testimony which corroborates the Plaintiff's case as encapsulated in the Further Amended Plaint, the Learned Counsel beseeched this court to make a finding in favour of the Plaintiff. 62. On the testimony of the expert witness – Samuel Wainaina Gitau, the Learned Counsel asserted that the testimony of the expert witness (EW) i.e. Samuel Wanaina Gitau corroborated the Plaintiff's case. The testimony of EW, a County Surveyor based in Kwale County, was as follows:- 63. After sub - division of the suit property into 12 equal parts, the plots were given new plot numbers being Galu Kinondo 2060, 2061, 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070 and 2071. Having been sub - divided, the suit property was not listed on the map as of 2012. The sub - division of the suit property reflects on the current county survey records. Anybody who purchases the map will see the amendment No.47 which was implemented on 28th March, 2012 and the subdivisions of the same. During cross - examination of by Mr. Gakuo for the Plaintiff, EW stated that he is a qualified expert surveyor for about 10 years and has worked in Nairobi, Kwale and Kinango. EW informed the Court that the certification of the mutation was done by the regional office. 64. The sub - division of land had to be triggered by an application to the Land Control Board. A copy of uncertified consent was found. A search of the suit property was done and a copy of the aforementioned search was found in the name of David K. Kandie [the 4th Defendant]. EW stated that the 4th Defendant in his List of Documents had filed a copy of the Title Deed for the suit property and according to that Title Dee5d, the suit property belongs to Apollo Hotels (the Plaintiff herein). 65. A search carried out on 1st April, 2015 shows that the registered owner of the suit property was Apollo Hotel’s and there were no encumbrances. A.N. Njoroge certified the search which did not show any sub - divisions. Maps were amended daily. They were public documents meaning any person interested in buying them can do so. EW testified that before conducting a sub - division, it was the duty of the County Surveyor to ensure that the owner had consented. The licensed surveyor ought to meet the owner to obtain their consent. The Learned Counsel submitted that the evidence of the current Land Registrar Mr. Mokaya was very clear and truthful, wherein he specifically stated and confirmed as follows: - 66. That the original Certificate of Title Deed Number Kwale/Galu Kinondo/394 in the name of the Plaintiff herein was the proper and original document of ownership and had never been transferred to anybody or sub-divided. 67. That the Search dated 1st April, 2015 confirmed the exact position, as Entry Number 4 dated 13th January 1986 showing and/or indicating that M/s Apollo Hotels Limited was and still is the registered owner for the suit premises, as that Entry had never been cancelled as per the requirements of Section 31 (2) of the Land Registration Act, which clearly states:- **“where the disposition is a transfer, the Certificate shall when produced be cancelled and in that case a new Certificate may be issued to the new proprietor”.** 1. The Learned Counsel argued that the Court would note that this was not done. Hence the 4th Defendant (Mr. Kandie) was hard pressed to explain why he did not have a copy of the Certificate of Title Number Kwale/Galu Kinondo/394 in his name. His explanation in Court on such a serious issue was laughable. They therefore strongly urged this Honourable Court to invoke the provisions of Section 80 of the Land Registration Act and order for cancellation of all the entries together with cancellation of all the twelve (12) Certificate of Titles for the twelve (12) Plots as the Plaintiff herein has fully demonstrated and proofed on a balance of probabilities that all those entries, the Sub-divisions issuance of the 12 Title Deeds was registered and obtained and made by fraud in conjunction with the Land Officials in the Kwale Land Registry. 2. EW testified not having seen the Title Deed for the suit property in the name of David Kandie. 3. The Learned Counsel held that the 4th Defendant testified essentially corroborating the Plaintiff’s case. In his testimony, the 4th Defendant, David Kandie, confirmed that he filed a List of Documents on 22nd June, 2015. He admitted that the first document in his List of Documents dated 19th June, 2015 and filed on 22nd June, 2015 was a Title Deed for the suit property which certifies that the registered owner of the suit property was Apollo Hotels Limited [the Plaintiff]. The 4th Defendant stated that the reason behind Apollo's Title Deed appearing in his List of Documents was that Mr. Kadima Advocate was his advocate at the time when the List of Documents was filed and he decided to file it and that’s one of the reasons why Mr. Kadima was no longer his advocate. He further stated that he gave Mr. Kadima Advocate all the relevant documents and that his current advocate has unsuccessfully been trying to reach Mr. Kadima Advocate to release the original Title Deed which was in his name. 4. At the time that he was filing the defence, the copy of the title in the name of Apollo Hotels was already in the Court file. He testified that he subdivided the property upon buying it from the 2nd and 3rd Defendants. During cross-examination, the 4th Defendant admitted to knowing the 5th and 8th Defendants. He stated that he sold the sub-divided portions as follows: Plot Number 2064 to the 8th Defendant, Plot Numbers 2066 and 2065 to the 5th Defendant and Plot Number 2063 to Peter Kaburu who subsequently sold it to the 8th Defendant. 5. Mr. David Kandie stated that he saw a copy of the suit property's title in the names of the 2nd and 3rd Defendants name but now it was not available and neither was it produced in Court. He stated that a copy of the transfer was in his bundle of documents and that he presented himself before his Advocate on 8th October, 2008 to sign the transfer. The transfer was registered on 18th February, 2008 before he signed it. His lawyer somehow registered the transfer before the 4th Defendant signed it. 6. He further stated that after transferring the suit property, he paid the stamp duty and all the documentation was forwarded to Mr. Kadima Advocate who messed him up. When asked about the replacement of the title, the 4th Defendant stated that he had not replaced the title and has been pushing his advocate to do so. During cross-examination by Mr. Gakuo Advocate for the Plaintiff, the 4th Defendant admitted that a copy of the Title Deed for the suit property in the name of the 2nd and 3rd Defendants was not in the 4th Defendant’s List of Documents. The 4th Defendant was unable to tell the court the person who prepared the transfer of the suit property from the 2nd and 3rd Defendants to him. 7. The Learned Counsel averred that the witness stated that he paid for the purchase of the property in cash which he withdrew from the bank but he did not have the evidence of the same in Court. He also did not have copies of the 2nd and 3rd Defendant’s national Identification Cards and none was presented in Court. The Land Registrar was the one who carried out the transfer. He did not endorse the date on the registration. He stated that he has all the documents but they had not been filed. 8. On the testimony of the 6th Defendant, the Land Registrar. The Learned Counsel posited that Mr. Evans Nyatilo Marwanga testified that he was the Land Registrar, Kwale at the material time and that he published the notice in the Gazette on 4th May, 2012 concerning plot numbers 533 and 394 in Kwale. He stated that an affidavit was filed of the Green Card was missing. If after 60 days there was no objections, a fresh green card was issued. Sub-divisions closed the green card at entry number 10 and new plots with numbers 2026 to 2071 were created. He admitted to making the entry dated 20th February, 2012. He testified that when a registered owner produces the title upon sub - division, it was cancelled and a new one issued. He reiterated that in order to create new titles, the previous ones must be canceled and that after cancelation, search was not available. 9. During cross-examination by Mr. Gakuo for the Plaintiff, Mr. Marwanga stated that entry number 8 was for Chesire who purchased the suit property from Apollo Hotels Limited. He also stated that a cancellation indicated a transfer of the property. He was not sure if the original documents were produced before effecting the cancellation. According to him, to prove that the transaction took place, there ought to be a transfer and that two titles to the same piece of land could not co - exist. He testified that entry number 4 in the green card identified Apollo Hotels as the owner and that Entries No. 6 to 10 of the Green Card ought to be discarded. 10. On the Plaintiff’s evidentiary documents. The Learned Counsel contended that as regards the documentary evidence, the Plaintiff filed a List and Bundle of Documents (dated 29th April, 2013), Supplementary List of Documents (dated 9th July, 2015) and Further List of Documents (dated 3rd November, 2021). It was the considered submission of the Learned Counsel that the aforesaid documents corroborated the Plaintiff’s case as embodied in the further amended Plaint. 11. On the 4th Defendant’s evidentiary documents were self – defeating. The Learned Counsel averred that the 4th Defendant filed a list of documents on 22nd June, 2015 (dated 9th June, 2015). The very 1st of the 4th Defendant’s 19 documents was listed as title deed for the suit property [Kwale/Galu Kinondo/394]. A cursory look at the said Title Deed (actually Land Certificate dated 14th January, 1986) indicated the Plaintiff herein - Apollo Hotels Limited - as the registered absolute proprietor of the suit property. 12. The 4th Defendant’s alleged title deed was, in fact, the exact copy of the 3rd document in the Plaintiff’s list of documents dated 29th April, 2013 (filed on the same day). It was produced in Court as Plaintiff Exhibit No. 2. Though not listed on the first page, the 4th Defendant’s List of Documents also contained the Transfer of Land dated 20th December, 1985 showing that Mushihiri Juma Mboga transferred the suit property to the Plaintiff for a sum of Kenya Shillings Ninety Thousand (Kshs.90,000/-), the Transfer appeared immediately after the Title Deed in the 4th Defendant’s List of Documents. The aforesaid Transfer of Land was the exact same document in the Plaintiff's List of Documents. It was produced in court as Plaintiff Exhibit No. 5. 13. The Learned Counsel submitted that the 2nd Document in the 4th Defendant’s List of Documents was an Agreement for Sale dated 10th September, 2008 by which 2nd and 3rd Defendants i.e. Kiprotich Chesire and Richard Muiruri Kuria purportedly sold the suit property to the 4th Defendant i.e. Mr. David K.Kandie. In the said Agreement for Sale, the 2nd and 3rd Defendants claim that they were the registered owners of the suit property. At clause 9 of the alleged Agreement for Sale, the original title deed was supposed to be delivered to the purchaser [4th Defendant] before completion of the transaction. Of course no such original title could be delivered to any purported purchaser because the original Certificate of Title Deed was - and still is - in the custody and possession of the Plaintiff – Apollo Hotels Limited. 14. Further, the Learned Counsel submitted that the 17th of the 4th Defendant’s 19 documents was a letter dated 13th February, 2012 from the District Land Adjudication and Settlement officer (DLASO), Kwale/Msambweni. The said letter confirmed that at the time of demarcation, the suit property was recorded in the name of Mshihiri Juma. This corroborated the testimony of PW - 1 and dovetailed with the copy of the transfer produced in court by PW - 1 and marked as Plaintiff Exhibit No. 5. 15. The Learned Counsel submitted that on the issue of whether the Plaintiff had proved fraud, it was obvious from the foregoing that the Plaintiff herein had satisfactorily proved its case against the Defendants jointly and severally. They reiterated that: - 16. The Plaintiff as the owner of the suit property did not consent to the transfer or sub-division of the suit property or any portion thereof. 17. At all times material to this suit, the Plaintiff was-and still is-in possession of the suit property’s original title deed which would have been surrendered for cancellation had the transfer or the sub-divisions been above-board rather than fraudulent, as per the requirements of provision of Section 31 (2) of the Land Registration Act, No. 3 of 2012 which reads as follows, which was not the case herein: - **“(1)if a certificate of title or a certificate of lease has been issued, then, unless it is filed in the Registry or the Registrar dispenses with its production, it shall be produced on the registration of any dealing with the land or lease to which it relates, and, if the certificate of title or the certificate of lease shows all subsisting entries in the register, a note of the registration shall be made on the certificate of title or the certificate of lease.** **(2) where the disposition is a transfer, the certificate shall, when produced, be cancelled, and in that case a new certificate may be issued to the new proprietor.** **(3) where the disposition is a charge, the certificate shall be delivered to the charge”.** 1. The Learned Counsel submitted that this Court had been consistent in holding that any sub - division of registered land without the owner’s consent was illegal and fraudulent. This Court (Justice Esther Asati) in the case of ***“Yalwala & 3 others (Sued in their capacity as Board of Trustees of Chavakali Yearly Meeting of Friends (Quakers)) – Versus - Kadenge & 3 others [2022] eKLR”***, held *inter alia*, that: - ***“53.This court has determined firstly, that the suit land belonged to the 1st Plaintiff before it was sub - divided and the resultant portions transferred to the Defendants. Secondly that the sub - division of the suit land and subsequent transfer of the resultant portions thereof in favour of the Defendants was fraudulent. Thirdly that by reason of the said fraud, the titles held by the Defendants are defective and liable for cancellation. On the basis of these findings, this court finds that Plaintiffs have largely proved its claim on a balance of probabilities.”*** 1. In the case of ***“Fredrick Idiama Emojong – Versus - Xepherio Mang'eni Manyaru & 2 others [2021] eKLR”*** this court (Justice Anne Omollo) held, *inter alia*, that: - ***“12.From the facts present herein, there is no dispute that there was a sub-division carried out on the suit title to create new numbers. That at the time of undertaking the sub-division, the plaintiff was the registered owner. Lastly, that the said sub- divisions were done by the 1st defendant and without authority or consent of the plaintiff. It is the result of the defendants' actions which the plaintiff pleads fraud and irregularities that ended in denying him rights over the suit title land.”*** 1. Additionally, in the case of:- ***“Peter Wills O. Simba & another – Versus - Maria Gesare Sagwe & another [2019] eKLR”*** this Court (Justice Jane Onyango) held, *inter alia*, that: - ***“17.On the evidence the court is satisfied the plaintiffs were the original allottees of Plot No. 27 Nyakoe Market and that the Plaintiffs as the owners did not sanction and/or consent to any sub - division of the same. Therefore the sub - division of the Plot into portions 27A and 27B was unlawfully done.*** ***19. On the basis of the evidence, I am satisfied that the Defendants have failed to demonstrate they had a legal proprietary interest over Plot No. 27 Nyakoe Market. The sub - division and the subsequent transfer of the subdivisions to the Defendants was unlawful and therefore null and void and of no legal effect. The Defendants are therefore in unlawful and illegal occupation of the Plaintiffs plot and they ought to vacate. It is my determination that they are trespassers onto the suit property.”*** 1. PW - 2 also stated that the Land Registrar [6th Defendant] was fully involved in the sub - divisions as per the Mutation Form. He also stated that the Land Registrar should not authorize sub - division of land without the consent of the registered owner. In other words, if fraud happened at the Kwale Lands Registry, the 6th Defendant or his officers were involved. In a Judgement delivered very recently i.e. on 9th November, 2023 in the case of ***“Mariera & another – Versus - Ongwancho & 2 others [2023] eKLR”***, this court (Justice Munyao Sila) outlined how Land Registrars in Kenya perpetuate fraud in the Land Registries. 2. On the strength of the foregoing case law authorities from this court, the Learned Counsel beseeched this court to find that the Plaintiff had met the threshold for proving fraud as pleaded in the Further Amended Plaint. 3. On the issue of whether or not 5th, 8th, 9th, 10th, 11th and 12 Defendants were bona fide purchasers for value. The Learned Counsel submitted that the 5th Defendant [Gisimba General Enterprises Limited] 8th Defendant [Alfred Kaibunga Baariu],9th Defendant [Job Kigen Kangogo, 10th Defendant [Minnie Jemutai Tubei, 11th Defendant [Josephine Chepkechei] and 12th Defendant [Eunice Wairuri Kibera] all pleaded the doctrine bona fide purchaser for value without notice. As stated previously, the 4th Defendant upon carrying out an illegal and fraudulent sub - division of the suit property, sold Galu Kinondo 2065 and 2066 to the 5th Defendant. 4. Further, the 4th Defendant had admitted to selling Galu Kinondo 2063 to Peter Kaburu Mungania who then allegedly soId it to the 8th Defendant. It was the Plaintiff's submission that the 5th,8th, 9th, 10th, 11th and 12th Defendants did not verify whether the 4th Defendant was in fact the registered owner of the two plots he allegedly sold to the 5th Defendant and whether the 4th Defendant had a good title thereto. To be specific, in his testimony, lawyer Claver Sindayigaya as a director of the 5th Defendant testified that the 5th Defendant acquired Kwale/ Galu/ Kinondo/ 2065 and Kwale/ Galu/ Kinondo/ 2066 in October, 2012 from David Kandie, the 4th Defendant herein. 5. He testified that the 4th Defendant had copies of the title deeds which showed he was the owner of the two plots. Yet no copies of any such title in the name of the 4th Defendant were produced in court. Therefore, it was safe to conclude that there were no title deeds in the name of the 4th Defendant in respect of Kwale/Galu/Kinondo/2065 and 2066 which were part of the sub-divisions fraudulently hived from the suit property. The 5th Defendant's witness also testified that the 4th Defendant showed him official searches for those two plots and demand for rates that were under his name as well. Yet again, the alleged official searches and rates demand in the 4th Defendant’s name were never produced in court. On cross-examination by Counsel Gakuo for the Plaintiff, the 5th Defendant's witness admitted that he did not have the sale agreement [between the 4th Defendant and the 5th Defendant]. 6. Most importantly, the 5th Defendant’s witness stated that he did not find it necessary to check how the 4th Defendant acquired the plots. On cross-examination by Ms. Mayanje, the 5th Defendant’s director admitted that he was not there when the searches were conducted on the two plots. He also confirmed that he did not make the searches. In other words, the 5th Defendant accepted as gospel truth whatever documents and purported searches that the 4th Defendant gave him. Be that as it may, it was now trite law that in Kenya an official search of land was not conclusive evidence of ownership. One needed to go further than a mere search. One must dig deeper into the root of the title. 7. To buttress on this point, the Learned Counsel relied on the case of ***“Richard Kimnani – Versus - Swaleh Mohamed Mwakuriwa & 5 others [2022] eKLR”***, this court (Justice Lucas Naikuni) cited with approval the decision in ***“ELC (Nbi) Reference No. 1 of 2018; In the Matter of Drive in Primary School & Ruaraka School – Versus - the National Land Commission & 11 others”*** in which it was held: ***“An official search on any title at the land registry is very important before one can act on it. The search indicates the owner (s) of a particular property and the encumbrances or other relevant entries registered against that land. Once a search is issued by the Lands Office, it should be conclusive evidence of proprietorship in light of the fact that our title registration system is based on the Torrens System of registration. However, a search may not always be a true reflection of the position. On Torrens System of registration. It is necessary for one to take further steps to ascertain the authenticity of the search and ownership of land. If the Applicant had bothered to delve into history of the title it would have discovered that the title had two mortgage besides the entries in the register....or any other overriding interest affecting the land they wish to transact on. In light of the foregoing our finding is that a search is not conclusive evidence of ownership. One needs to go further than a mere search.”*** 1. According to the Learned Counsel, from the foregoing, it was obvious that the 5th Defendant did not carry out any or sufficient due diligence regarding the 4th Defendant’s ownership of the two plots hived from the suit property. As such, the 5th Defendant was not entirely innocent and could not therefore seek refuge in the doctrine of innocent purchaser for value without notice of any defect or irregularities in the title to the said plots. In any event, the 5th Defendant could only have recourse against the 4th Defendant who obviously conned it by purporting to sell phantom plots. 2. The Learned Counsel’s foregoing submissions in respect of the 5th Defendant applied “***Mutatis Mutandis”*** to the 8th, 9th, 10th, 11th and 12th Defendants. His only legal recourse was against the Vendor who sold to him a fraudulently sub - divided plot. Proper due diligence would have exposed the fraudulent root of the plot he was conned into purchasing. Regarding bona fide purchaser, Kenyan courts have generally used the famous Ugandan case as a yardstick. 3. The Learned Counsel relied on the Ugandan case of ***“Katende – Versus - Haridar & Company Limited [2008] 2 E.A.173”*** it was held:- ***“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that:*** * 1. ***he holds a certificate of title;*** 2. ***he purchased the property in good faith;*** 3. ***he had no knowledge of the fraud;*** 4. ***he purchased for valuable consideration;*** 5. ***the vendors had apparent valid title;*** 6. ***he purchased without notice of any fraud;*** 7. ***he was not party to any fraud.*** 1. According to the Learned Counsel, the above legal position was however now changing in Kenya as the courts of law have taken judicial notice of Kenya's peculiar circumstances and the evolving sophistication of land fraudsters and how they collude with land registrars. They relied on the case of ***“Richard Kimani – Versus - Swaleh Mohamed Mwakuriwa & 5 others [2022] eKLR”***, this court (Justice Lucas Naikuni) cited the court of Appeal which held in the case of ***“Mwangi James Njehia & Another – Versus - Simon Kamanu, Civil appeal no. 177 of 2019”***: - ***“We nonetheless wish to state that the law, including case law, is not static and the above requirement which were entered over twenty (20) years ago cannot be said to have cast in stone. We hold the view that (e) above will need to be revisited and the word "apparent" be done away with altogether. We say so because in the recent past and even presently, fraudsters have upped their game and we have come across several cases where Title deeds manufactured in the backstreets have, in collusion of officers in the land registries, been transplanted at the Lands Office and intending buyers have duped to believe that such documents are genuine and on the basis they have 'Purchased' properties which later turn out to belong to other people when the correct documents mysteriously reappear on the register or the genuine owner show up after seeing strangers on their properties waving other instruments of title. It is prevalence of these incidents that have necessitated the current overhaul and computerization of the registration systems at the Land registries at Nairobi....”*** 1. The Learned Counsel submitted that it was obvious from the court record that the 1st, 2nd, 3rd, and 4th Defendants could not explain at all, or satisfactorily, how they came to be the alleged owners of the suit property. The 4th Defendant being the vendor of the 5th and 8th Defendants obviously had no good title to the plots in issue ab initio. Having had no valid title in the first place, the 4th Defendant could not legally pass any title to the other Defendants or third parties who may have bought any of the 12 fraudulent subdivisions result from the suit property. 2. The Learned Counsel implored this Court to find that the 5th Defendant and 8th, 9th, 10th, 11th and 12th Defendants herein did not carry out sufficient due diligence on how the 4th Defendant acquired the plots they allegedly bought and that the doctrine of bona fide purchaser for value cannot come to their aid. Indeed, the 5th Defendant’s director testified that he did not find it necessary to check how Kandie [the 4th Defendant] acquired the plots. 3. In conclusion, the Learned Counsel humbly submitted that the Plaintiff had satisfactorily proved its case against the Defendants jointly and severally on preponderance of evidence. The Plaintiff therefore deserves the orders sought in the Further Amended Plaint. They accordingly prayed that the Plaintiff’s suit as embodied in the Further Amended Plaint be allowed with costs. 4. The Learned Counsel submitted that in support of their submissions herein, they relied on the following case law authorities (copies attached in the submissions); 5. ***Yalwala & 3 others (Sued in their capacity as Board of Trustees of Chavakali Yearly Meeting of Friends (Quakers)) – Versus - Kadenge & 3 others [2022] eKLR*** 6. ***Fredrick Idiama Emojong – Versus - Xepherio Mang'eni Manyaru & 2 others [2021] eKLR*** 7. ***Peter Wills O. Simba & another – Versus - Maria Gesare Sagwe & another [2019] eKLR*** 8. ***Mariera & another – Versus - Ongwancho & 2 others [2023] eKLR*** 9. ***Richard Kimani – Versus - Swaleh Mohamed Mwakuriwa & 5 others [2022] eKLR*** 10. **The Written Submission by the 5th and 8th Defendants** 11. The 5th and 8th Defendants through the Law firm of Messrs. Mulwa Nduya & Co. Advocates filed their written submission dated 15th May, 2024. Mr. Musyimi Advocate submitted that the said submissions were the 5th and 8th Defendants’ final submissions on the main suit: - 12. This suit was brought by way of a Further Amended Plaint dated 15th February, 2023. 13. In their defense the 5th defendant filed as a bundle their Statement of Defence dated 5th June,2014 together a bundle of documents and further called four witnesses in their defense including the Current Kwale Land Registrar and former land registrar Mr. E.N. Marwanga. 14. In his defense the 6th Defendant file a bundle his statement of defense dated 6th November, 2017 together bundle of documents and further called two witnesses in his defense including the Current Kwale County Surveyor. 15. The Learned Counsel relied on the following issues for determination before this Honourable Court: - 16. ***Whether the 5th and 8th Defendant are bona fide purchaser for values without notice;*** 17. ***Whether the 5th Defendant with regards to Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 and 8th Defendant with regards to Kwale/Galu Kinondo 2063 and Kwale/Galu Kinondo 2064 are absolute and indefeasible owner of their said properties there by warranting the protection guaranteed under Article 40 of the Constitution of Kenya, 2010.*** 18. ***Whether the plaintiff's case has merit?*** 19. On whether the 5th and 8th Defendants were bona fide purchasers for value without notice. The Learned Counsel submitted that the 5th and 8th Defendants did hereby give an in-depth dive of the facts with regards to their transaction of all their respective properties:- 20. The 4th Defendant offered for sale to the 5th Defendant company Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 and offered the 8th Defendant Kwale/Galu Kinondo 2064 and one Peter Kaburu Mugania offerd Kwale/Galu Kinondo 2063 for sale to the 8th Defendant which offers were accept. The 5th Defendant’s witness one Claver Sindayigaya and the 8th Defendant both testified that they personally visited the plots whereby they noted that the plots were vacant. This position is confirmed by the plaintiff who confirmed that the property was vacant and even though the plaintiff states that a care take was posed on the property the alleged care take was not called to testify and no evidence was not called to prove the same hence the same was false evidence meant to mislead the court. 21. The 5th Defendant's witness and the 8th Defendant both confirmed that beacons for the plots were shown to them. Peter Mwaura Karanja a surveyor being Plaintiff's witness confirms that when he visited the property to conduct the survey, he discovered beacons for sub - division Kwale/Galu Kinondo 2060-2071. It should be noted that placing beacons for ten plots was an extensive and open endeavor the alluded Plaintiff care taker should have been able to notice and prevent the same therefore confirming the fact that the property was at all times relevant to this suit vacant. The 5th Defendant and the 8th Defendant then testified that they visited the survey office in Mombasa whereby they procured Registry Index Map which said map confirmed that Kwale/Galu Kinondo 2063, Kwale/Galu Kinondo 2064, Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 indeed existed. (the map was produced severally by various witnesses in this case). 22. Mr. Peter Mwaura Karanja a Land Surveyor called by the Plaintiff referred to Registry Index Map whereby he firmly testified that as at the time he was contracted by the Plaintiff plot number Kwale/Galu Kinondo 394 did not exist. However, he noted that Kwale/Galu Kinondo 2060-2071 were the only ones in existence both on the map and on the ground physically as they all had bacons. The 4th Defendant supplied the 5th and the 8th Defendants with copies of titles for Kwale/Galu Kinondo 2064, Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 and a copy of Kwale/Galu Kinondo 2063 title was supplied by Peter Kaburu Mugania with which they undertook the following official searches which all indicated the owner of the property as follows:- 23. For Kwale/Galu Kinondo 2063 search dated 10th July, 2013- Peter Kaburu Mugania. 24. For Kwale/Galu Kinondo 2064 search dated 2nd October, 2012-the 4th Defendant. 25. For Kwale/Galu Kinondo 2065 search dated 2nd October, 2012-the 4th Defendant. 26. For Kwale/Galu Kinondo 2066 search dated 2nd October, 2012-the 4th Defendant (The application for searches, payment for the searches and the searches have been produced by the 5th and 8th Defendants in their respective bundles). 1. The position as per the above mentioned searches was further confirmed by the current Land Registrar a witness of the 5th Defendant whereby he produced the parcel files for Kwale/Galu Kinondo 2063, Kwale/Galu Kinondo 2064, Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 together with the Green Cards for said plot. H affirmatively confirmed that indeed the parcel files together with the green cards were valid. Hence the searches issued to the 5th and 8th Defendants were also valid. The 5th and 8th Defendant did produce in their respective bundles Rate Demands notice for Kwale/Galu Kinondo 2063, Kwale/Galu Kinondo 2064, Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 which also showed that the owner of the property as per the Kwale country records corresponded with the searches that had been issued. 2. The Learned Counsel argued that the 4th Defendant being the first owner Kwale/Galu Kinondo 2064, Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 the searched issued by the 6th Defendant conclusively confirmed the root of the said titles and as for Kwale/Galu Kinondo 2063 Peter Kaburu Mugania was second owner of the said property, the 4th Defendant being the 1st owner which was determined through interactions with the neighbors hence the root of the tile had been completely determined. 3. The Plaintiff has produced as Plaintiff Exhibit No. 4 a certified copy of Green card which the PW - 1 testified to have procured from the 6th Defendant that showed that as at 2nd October, 2012 the plot number Kwale/Galu Kinondo 394 had already been closed on sub - division a clear indication that the root of the titles by the 5th and 8th Defendant was valid as at the time they carried out the purchase transaction. 4. The Learned Counsel submitted on the procedure of purchase and transfer 5th and 8th Defendants testified as follows. That the 5th Defendant entered in to an agreement with the 4th Defendant for the purchase of Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 whereby purchase price was agreed at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-) per plot. As for the 8th Defendant entered in to an agreement with the 4th Defendant for the purchase of Kwale/Galu Kinondo 2064 for a sum of Kenya Shillings Two Million Six Fifty Thousand (Kshs.2,650,000/-) and for Kwale/Galu Kinondo 2063 with Peter Kaburu MMugania whereby purchase price was agreed at a sum of Kenya Shillings Two Million Eight Hundred Thousand (Kshs. 2,800,000/-) and the same paid a fact confirmed by the 4th Defendant. 5. The question that arose was - ***'was this a purchase for value?***' the answer for this could be ascertained for the valuation carried out by the Government Valuer during the registration of transfer for purposes of payment of stamp duty. From the valuations for purpose of payment of stamp duty produced by the 5th and 8th Defendants in their respective bundles the court would note that the value ascertained valued for purposes of payment of stamp duty corresponded with the price agreed upon in the agreement for each plot which hereby settled that of purchase for value. During his testimony the 4th Defendant did indeed acknowledged receipt of the above-mentioned amount per plot by the 5th and 8th Defendants for each of their respective plots. 6. The Learned Counsel submitted that the process of registration was regular whereby the 5th and 8th Defendants procured a valuation and paid stamp duty, applied and procured Letters of Consent from the Land Control Board and applied, paid and procured registration of transfer in their favour. The 5th and 8th Defendants had produced in their respective bundle and originals physically in court valuations Stamp duty Declaration, Assessment and Pay-in Slip, bank deposit slips LCB application forms and LCB consent, duly stamped and registered transfer, application and payment receipt for transfer for each plot. Once registration was concluded the 5th and 8th Defendants were issued with titles for each of their plots which titles the produced in their respective bundles and had them at all times physically in court and the following searches issued which were also produced in court:- 7. For Kwale/Galu Kinondo 2064 search dated 25th October, 2012-the 8th Defendant. 8. For Kwale/Galu Kinondo 2065 search dated 25th October, 2012 - the 5th Defendant. 9. For Kwale/Galu Kinondo 2066 search dated 25th October, 2012 - the 5th Defendant. 10. This process was confirmed by the current Land Registrar whereby corresponding original documents that had been produced by the 5th and 8th Defendants could be traced from the parcel files that he produced in court. He further confirmed that the valid green card in each parcel file indicated the 5th and 8th Defendants were the owners of each of their respective plot and also confirmed the that all titles from the previous owners were in the parcel files having been surrender for purposes of destruction in leu of the new titles. 11. A former Land Registrar, Kwale - Mr. E.N. Marwanga and the current Land Registrar, Mr. Steve Mokaya did indeed confirm from inspecting the original documents produced by the 5th and 8th Defendants specifically the title deeds that they were original and issued by the Kwale Land Registry. The Learned Counsel submitted that through their pleadings and witnesses they called they proved on a balance of probabilities the they are Bona fide purchasers as defined by the Black’s Law Dictionary 9th Edition which defines a Bona fide purchaser as:- **One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.** 1. Further it is the 5th and 8th Defendants submission supported by evidence the procedure used to acquire LR Nos. Kwale/Galu Kinondo 2063, Kwale/Galu Kinondo 2064, Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 were within the parameters set out by The Supreme Court of Kenya in the case of:- ***“Dina Management Limited – Versus - County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment)”*** had the following to say on what would make one a bona fide purchaser:- ***91. The Court of Appeal in Uganda in Katende – Versus - Haridar & Company Limited [2008] 2 EA 173,defined a bona fide purchaser for value as follows:-*** ***“For the purposes of this appeal, it suffices to describe a bona □de purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine he must prove that:*** ***1.he holds a certificate of title;*** ***2.he purchased the property in good faith;*** ***3.he had no knowledge of the fraud;*** ***4.he purchased for valuable consideration;*** ***5.the vendors had apparent valid title;*** ***6.he purchased without notice of any fraud; and*** ***7.he was not party to the fraud.”*** ***The Supreme Court of Kenya went on to state as follows:-*** ***92. On the same issue, the Court of Appeal in Samuel Kamere – Versus - Lands Registrar, Kajiado Civil Appeal No 28 of 2005 [20151 eKLR stated as follows:*** ***“.......in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the Purchase of the suit property….”*** 1. The contention by the Learned Counsel was that the 5th Defendant produced in court the original title deed for property Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066. That the 8th Defendant also produced in court the original title deed for property Kwale/Galu Kinondo 2063 and Kwale/Galu Kinondo 2064. The fact that they held the certificate of title for the said properties was confirmed by the current Land Registrar who produced parcel files for the respective properties and upon inspection the titles of the 5th and 8th Defendants in open court he indeed confirmed that the said title were valid and were issued by the Kwale Land Registrar. The purchase by the 5th and 8th Defendants in good faith and honest this could be ascertained by the procedure they utilized by the said Defendants in purchases their properties as shall be discussed later within this submission. 2. According to the Learned Counsel submitted that the 5th and 8th Defendants were not parties to any alluded fraud as pleaded by the Plaintiff. The Plaintiff had not produced or call any evidence to the effect that the 5th and 8th Defendants were party to the alluded fraud. From the evidence led by the current Land Registrar and the current Kwale county surveyor at the time the 5th and 8th Defendants purchased their respective properties the records were clean and had been indicated by the respective Vendors. Further the 5th and 8th Defendants had no notice of any fraud that has been alluded by the Plaintiff this was since at the time of performing due diligence it revealed that the Vendors had good titles and the properties were clean by all standards. The 5th and 8th Defendants testified that they paid a valuable consideration for the property which fact was confirmed by the 4th Defendant. 3. The Learned Counsel submitted that the Vendors had apparent good titles since as at the time of sale and as at the time he testified the current land registrar did confirm that:- * The Vendors had original titles to the properties being the sub - divisions; * The Vendors had physical occupation of the properties; * An official search further confirmed owner ship; and * A transfer was actually registered in favor of the 5th and 8th Defendants. 1. It was clear that from the face of the 5th and 8th Defendants’ evidence that they fully satisfy the parameter set out by the Supreme court in the ***“Dina Management Limited case (supra)”*** of who of a bona fide purchaser for value without notice. 2. On whether the 5th Defendant with regards to Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 and 8th Defendant with regards to Kwale/Galu Kinondo 2063 and Kwale/Galu Kinondo 2064 were absolute and indefeasible owner of their said properties their by warranting the protection guaranteed under the provision of Article 40 of the Constitution of Kenya, 2010. The Learned Counsel submitted that their submission supported by evidence already produced before this Honourable court that they hold valid indefeasible titles to within the meaning of Land Registration Act No. 3 of 2012 Section 26 (1) and firmly hold the position that the exceptions laid out in the said provision does not apply to the titles. 3. The Learned Counsel averred that they observed that the 5th and 8th Defendants held titles issued by the Land Registrar. That it was the 5th and 8th Defendants that should be taken by this court as prima facie evidence that they are the proprietor of their respective lands. That they were the absolute and indefeasible owner of the said properties. 4. Coming to the exception. The Learned Counsel held that it had been observed above that the 5th and 8th Defendants were not party to any allude fraud which then translated to the fact the specific title that they hold they did not procure the same illegally or through corrupt scheme as the titles they hold were acquired in full compliance in the rules set out by the law. The provision of Article 40 of the Constitution Of Kenya, 2010 was drafted specifically to protect persons that hold absolute and indefeasible such as the 5th and 8th Defendants. Upon finding that the 5th and 8th Defendants as absolute and indefeasible owners of Kwale/Galu Kinondo and 2063, Kwale/Galu Kinondo 2064 for the 8th Defendant and Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 for the 5th Defendant this Honorable Court must find that the 5th and 8th Defendants were entitled to the protection of the provision of Article 40 of the Constitution of Kenya, 2010. 5. On the issue of whether the Plaintiff’s case had merit. The Learned Counsel submitted that the Plaintiff’s case was is riddled with falsehood and inconsistences as the court would note the following:- 6. As was testified by the current Land Registrar within the parcel file of the property Kwale/Galu Kinondo 394 which was produced in court there was no document to support the purported title held by the Plaintiff with regard to Kwale/Galu Kinondo 394. Therefore the validity of the document produced by the Plaintiff could not be confirmed and/or authenticated. 7. A scrutiny of the Plaintiff documents would show that all documents and letters produced by the Plaintiff to prove ownership were of before they transferred property to the 1st Defendant. This could be ascertained from certified copy of Green card in respect to LR. No. Kwale/Galu Kinondo 394 produce as Plaintiff's Exhibit No. 18. 8. From the Plaintiff documents it was clear that the last time the Plaintiff had any contact with the property was in the year 1987 and then on 26th September, 2002 they transferred the property to the 1st Defendant. 9. From PW - 1 testimony the Plaintiff testified that they had been paying land rate since purchase. However the only time the Plaintiff paid land rate was in the year 2013. 10. From the testimony of PW – 1, the Plaintiff testified that they had a caretaker on the land. However, PW - 2 a surveyor called by the Plaintiff noted that all sub - divisions had beacon, one wonders how extensive beacons could be placed by a stranger while the Plaintiff's caretaker was on the property. This was clear indication that the Plaintiff had already surrendered possession to the 1st Defendant who had given possession to subsequent proprietors. 11. The court would note that apart from the Original Certificate of Title Deed the Plaintiff repeatedly waved in court, they had no other document to support their claim that they still held the title to the property Kwale/Galu Kinondo 394. However that was simply not enough. 12. PW - 2 a Land Surveyor called by the Plaintiff confirmed that Kwale/Galu Kinondo 394 had since been closed on sub - division which task could only be carried out upon approval of the registered owner which showed the sub - division in this case was regular. 13. It was unclear how the Plaintiff managed to get a search in the year 2015 for Kwale/Galu Kinondo 394 when the said Plaintiff produced a green card for the said property indicating that the property was closed on sub - division which was a clear indication of an act of fraud before this court in a desperate attempt to give validity to this case. 14. The Learned Counsel’s contention was that all the above went to show that the Plaintiff’s case to wit that they still held a valid title to Kwale/Galu Kinondo 394 had no merit. That their entire suit should be dismissed in its entirety. 15. Aside from the above, the 5th and 8th Defendants had already proved on a balance of probability that they were the absolute and indefeasible owners of Kwale/Galu Kinondo and 2063, Kwale/Galu Kinondo 2064 for the 8th Defendant and Kwale/Galu Kinondo 2065 and Kwale/Galu Kinondo 2066 for the 5th Defendant with the protection of Article 40 of the Constitution of Kenya, 2010 rendering the Plaintiff to be of no merit and a good candidate for dismissal. 16. In conclusion, the Learned Counsel humbly prayed that this Honorable Court do dismiss the Plaintiff’s suit to its entirety with costs to the 5th and 8th Defendants. 1. **The Written Submission by the** **9th, 10th, 11th and 12th Defendants.** 2. The 9th, 10th, 11th and 12th Defendants through the Law firm of Messrs. Lumatere Muchai & Company Advocates filed their written submissions dated 20th June, 2024. Mr. Kazungu Advocate commenced the submissions by stating that the Plaintiff's suit for recovery for as stated in the Further Amended Plaint dated 15th February 2023. The Plaintiff sought amongst other order, the rectification of the land register of parcel of land number Kwale/Galu Kinondo/394; cancellation of all titles issued from the said parcel of land; a mandatory injunction. The 9th, 10, 11th and 12th Defendants filed their Statement of Defence dated 14th February 2023, maintaining that they lawfully purchased sub - division of Plot numbers 2062, 2060, and 2061 and 2067 respectively from the 4th Defendant while the 12th Defendant lawfully purchased sub - division of Plot No. 2068 from the 2nd Defendant at a valuable consideration without notice of any apparent defect of title. 3. The Learned Counsel relied on the following issues for determination for the Court: - 4. ***Whether the 9th, 10th, 11th and 12th Defendants are honest purchasers for value without notice;*** 5. ***Whether the Plaintiff can impute fraud and illegality against the 9th, 10th, 11th and 12th Defendants.*** 6. On whether the 9th, 10th, 11th and 12th Defendants were honest purchasers for value without notice. The Learned Counsel argued that the 9th, 10, 11th and 12th Defendants’ evidence clearly established that, the acquisition of their respective properties was on the basis of carefully due diligence, which included, the site visit by the 9th Defendant in the company of the 4th Defendant’s representatives; perusing and confirming authenticity of title documents obtained from the 2nd and 4th Defendants; conducting an official land search from the Kwale Lands Registry; obtaining a Letter of Consent from the Land Control Board and paying requisite duty and eventually, successfully transferring the interest into their names at a value consideration of a sum of Kenya Shillings Two Million Six Hundred Thousand (Ksh.2,600,000/-) per parcel. 7. According to the Learned Counsel, the foregoing was not disputed by the Plaintiff, and the 4th Defendant, in fact, the 4th Defendant testified in support of his legal title to the parcels. What did this mean?. Simply, the title waived on the face of the 9th, 10th, 11th and 12th Defendants could not possibly and easily be said to be fraught with defects. The 9th, 10th, 11th and 12th Defendants could not have possible sniffed or suspected a noticeable defect after such a thorough procedure in the entire transaction. Honesty was paramount in the entire transaction. 8. The Learned Counsel submitted that the Plaintiff alleged fraud and illegality in the creation and transfer of the sub - division to the 9th, 10th, 11th and 12th Defendants and claims that the suit property was not available for alienation or allocation and had not been offered for sale to any another party at the time the 2nd and 4th Defendants acquired and transferred its sub - divisions to third parties. The bone of contention then was whether the 9th, 10th, 11th and 12th Defendants were innocent purchasers for value without notice. In their view, there could be no doubt that Plot Numbers 2062, 2060, 2061 & 2067 and 2068 respectively were legally, procedurally and lawfully acquired by the 9th, 10th, 11th and 12th Defendants. 9. The Learned Counsel held that the contention by the Plaintiff that Plot Numbers 2062, 2060, 2061, 2067 and 2068 were illegal and unlawful sub - division not capable of rendering a good title therefore the 2nd and 4th Defendants’ title was void ab initio. But that could not be so. It could rightly be said that the 9th, 10th, 11th and 12th Defendants purchased the suit property from the 2nd and 4th Defendants without any notice of the Plaintiffs alleged interest claim at that material time. The 9th, 10th, 11th and 12th Defendants have discharged the onus of an honest purchaser for value without notice defence, as against the claims of Plaintiff. 10. To support his case, he gave the Black’s law Dictionary 8th Edition definition of “bona fide purchaser”. He referred Court to the Court of Appeal case of:- ***“Weston Gitonga & 10 others – Versus - Peter Rugu Gikanga & another (2017) eKLR”*** cited the Ugandan case of ***“Katende – Versus - Haridar & Company Limited (Supra)”*** 11. On the foregoing premises, the 9th, 10th, 11th and 12th Defendants held titles to Plot No. 2062, 2060, 2061, 2067 and 2068, it was also a fact that they bought the property in good faith, that they neither had knowledge or notice of fraud nor were they a party to any alleged fraud, that they purchased the suit property for valuable consideration. Lastly, it was noteworthy that the vendors 2nd and 4th Defendants had apparent valid title. The 9th, 10th, 11th and 12th Defendants satisfied the criteria set in ***“Katende case (supra)”*** and could therefore be deemed as innocent purchaser for value without notice. 12. The Lands Registrar was and is vested with the authority to register disposition in lands upon satisfactorily establishing the transaction's validity. Having said so, it was therefore safe to opine that, the Land Registrar having received the transfer instrument and all accompanying documentation, and being satisfied as to the validity of the same, proceeded to lawfully, and legally register the 9th, 10th, 11th and 12th Defendants and issued them with Certificates of Title. The dispute herein sought to challenge a valid legal process, a process sanctioned by the government through its authorized officers. 13. The Learned Counsel submitted that it was imperative at this point to address the indefeasibility and absoluteness of the 9th, 10th, 11th and 12th Defendants’ titles to the respective suit properties that they acquired. The properties were acquired under the Registered Land Act (Repealed)Cap. 300) and the Land Registration Act, No. 6 of 2012 under Section 26 (1)(b). 14. Section 23 (1) of the Registration of Titles Act (Repealed) provides as follows:- **23 (1)The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive of evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.** 1. It was the Learned Counsel’s view that the above provision had been subject to rigorous legal discourse in a plethora of judicial pronouncements, and that there was very little to delve on. However, he submitted on the protection accorded to proprietary rights under Article 40 of the Constitution. Article 40 of the constitution. 2. The allegations challenging the absoluteness of the 9th, 10th, 11th and 12th Defendants titles were a direct attack on the 9th, 10th, 11th and 12th Defendants rights under the provision of Article 40. It was notable that the provision would not aid an illegality in the acquisition of a title, more so, the Plaintiff had not tendered any evidence directing the court to make a finding on any illegality or fraud on the part of the 9th, 10th, 11th and 12th Defendants. The Court of Appeal in the case of:- ***“Elizabeth Wambui Githinji & 29 others – Versus - Kenya Urban Roads Authority & 4 others [2019] eKLR”*** delved on the application of Article 40 of the Constitution:- ***“The thrust of Article 40 is to protect proprietary rights which are lawfully acquired. The Supreme Court in Rutongot Farm Limited – Versus - Kenya Forest Service & 3 others [2018] eKLR, expressed this position thus:*** ***“Once proprietary interest has been lawfully acquired, the guarantee to protection of the right to property under Article 40 of the Constitution is then expressed in the terms that no person shall be arbitrarily deprived of property. The same guarantee existed in Section 75 of the repealed Constitution.”*** 1. Such proprietary rights are protected by statute, it is our position that both under the Constitution and statute, the 9th, 10th, 11th and 12th Defendants title is absolute and indefeasible. The Plaintiff could not therefore turn around and state that the title legally acquired by the 9th, 10th, 11th and 12th Defendants was tainted with illegality and fraud while knowingly admitting that it was the Land Registrar as a representative of the government who validly issued the suit property to the 9th, 10th, 11th and 12th Defendants. Moving the court to make a finding on that argument would amount to arbitrarily depriving the 9th, 10th, 11th and 12th Defendants of their title and thereby infringing on their constitutional guaranteed right under Article 40. 2. Based on the foregoing, it was the view of the Learned Counsel that the claim of defeasibility of the 9th, 10th, 11th and 12th Defendants title had not been well articulated and must therefore fail. Article 40 would not apply only in the instance the property is found to have been acquired illegally, see: Article 40 (6) above. The Court of Appeal in the case of:- ***“Elizabeth Wambui Githinji & 29 others (supra)”*** went on further to discuss the protection of proprietary rights under Article 40 of the Constitution, and had this to say; ***“If a certificate of lease duly issued by the Registrar is prima facie evidence of ownership and if the owner is proved to have exercised due diligence at the point of acquisition, on what basis could the appellants' petition for protection under Article 40 be defeated?*** ***It has long been accepted beyond debate that the land registration process in Kenya is a product of the Torrens system. This was acknowledged in, among a long line of decided cases, this Court's Judgments in Dr. Joseph Arap Ngok – Versus - Justice Moijo ole Keiwua & 5 others, Civil Appeal No. Nai. 60 of 1997 and Charles Karathe Kiarie & 2 Others – Versus - Administrators of Estate of John Wallance Muthare (deceased) & 5 others, Civil Appeal 225 of 2006.*** ***Under that system, the title of a bona fide purchaser for value without notice of fraud cannot be impeached; that the land register must mirror all currently active registrable interests that affect a particular parcel of land; that the Government, as the keeper of the master record of all land in Kenya and their owners, guarantees indefeasibility of all rights and interests shown in the land register against the entire world; and that in case of loss arising from an error in registration, the Government guarantees the person affected of compensation. Finally, the statutory presumption of indefeasibility and conclusiveness of title based on the register can be rebutted only by proof of fraud or misrepresentation which the buyer is himself shown to have been involved.*** ***The object of the Torrens system was, in very compelling language, explained in the decision of the Privy Council in Gibbs V. Messer [1891]AC 247 P.C. at page 254 as follows:*** ***“The main object of the Act, and the legislative scheme for the attainment of that object, appear to them to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validly. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title.". (Emphasis supplied).”*** 1. In order to discharge the burden on them and for them to secure their title, it was enough for them to show that they acquired the interest in the suit property; that they did so in good faith, without notice and did not participate in any fraud. This burden had been discharged. 2. On whether the Plaintiff can impute fraud and illegality against the 9th, 10th, 11th and 12th Defendants. The Learned Counsel submitted that for fraud to be implied in a transaction of sale and registration of land section 2 of the repealed Registration of Titles Act required the proof of knowledge. **“Fraud” shall on the part of a person obtaining registration include a proved knowledge of the existence of an unregistered interest on the part of some other person, whose interest he knowingly and wrongfully defeats by that registration.”** 1. The 9th, 10th, 11th and 12th Defendants could not have possibly had knowledge of the existence of the plaintiff's competing claim over suit property. The property was on sale and they were a willing buyer. The Court of Appeal in the case of:- ***“Embakasi Properties Limited & another – Versus - Commissioner of Lands & another (2019) eKLR”*** cited with approval, the decision of the predecessor of the court in ***“Ratilal Gordhanbhai Patel – Versus - Lalji Makanji (1957) E.A 314, at 317”*** where the court explained the importance of proving, to the required standard an allegation of fraud:- ***“There is one preliminary observation which we must take on the learned judge's treatment of this evidence: he does not anywhere... expressly direct himself on the burden of proof or on the standard of proof required. Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required...”*** 1. The onus is on the Plaintiff to prove the commission of fraud; a mere cast of aspersions will not suffice. The 9th, 10th, 11th and 12th Defendants’ titles were therefore indefeasible, there was no proof of fraud, illegality or misrepresentation in any form whatsoever. Article 40 (6) of the Constitution, which declares that the protection of the right to property does not extend to properties that are established to have been unlawfully acquired, does not apply to the 9th, 10th, 11th and 12th Defendants. No fraud had been ascribed to them. The Plaintiff must demonstrate that they were privy to any such misconduct. In the absence of such, they were innocent purchaser who relied on the registry records to acquire the suit property. See; ***“Elizabeth Wambui Githinji & 29 other (supra)”*** where Ouko, JJA.: - ***“It would be contrary to the intent of law and wholly unnecessary for a party seeking to acquire interest in land to go beyond the register to establish ownership and the history of the past transactions involving that land. It must be reiterated further that the only reason why the law requires the keeping of land records is to afford a notice to the whole world of the status of the property.”*** 1. In conclusion, the Learned Counsel for the 9th, 10th, 11th and 12th Defendants humbly prayed that this Honourable Court do dismiss the Plaintiff’s suit to its entirety with costs to them. 2. **Analysis and Determination** 3. I have keenly assessed the filed pleadings by all the Plaintiff herein, the Defendants, the written submissions and the myriad of authorities cited by the parties, the relevant provision of the Constitution of Kenya, 2010 and statures. 4. In order to reach an informed, reasonable and just decision in the subject matter, the Honourable Court has crafted the following five (5) issues for its determination. The issues are: - 1. ***Whether the Plaintiff has proved its case that it is the legitimate and current registered proprietor of Kwale/Galu Kinondo/394?*** 2. ***Whether the initial transfers from the Plaintiff to the 1st, 2nd, 3rd, and 4th Defendants, and the subsequent subdivision of the suit property, were procured by fraud and are therefore null and void?*** 3. ***Whether the 5th, 8th, 9th, 10th, 11th and 12th Defendants are bona fide purchasers for value without notice, whose titles are immune from cancellation or revocation?*** 4. ***Whether the 6th and 7th Defendants were liable for the fraudulent activities that were meant to deprive of the rightful owner of its property.*** 5. ***What reliefs, if any, should be granted?*** 6. ***Who bears the costs of the suit?*** ***ISSUE No. a). Whether the Plaintiff has proved its case that it is the legitimate and current registered proprietor of Kwale/Galu Kinondo/ 394?*** 1. Under this sub title, the Honourable Court shall examine the efficacy, ;legality and legitimacy of the Plaintiff’s claim on its proprietary interest and ownership of the suit property. As indicated, this is a rather complex matter where the main substratum of it is on the legal ownership to the suit property and compensation of the parties herein. From the very onset, the Honourable Court wishes not to extrapolate on the brief facts of the case as that task has been ably executed by all the Learned Counsels for the Plaintiff and the Defendants herein. Therefore, the Honourable Court will just proceed on analysis of the framed issues under this sub – heading. But before that, the Honourable Court wishes underscores the fact that land in Kenya is a very emotive and sensitive matter. It is not just vital resource for development but it is the source of livelihood to many. It is also a tool for the mobilization or resources, being a security for collateral projects and financial support. Hence was relied on immensely thus any land dispute has to be handled with vast circumspect to avert creating any chaos or disarray situation arising. 2. Under the provision of Article 61 of the Constitution of Kenya, land has been classified into three (3) categories. These are Public, Community or Private land. First and foremost there is need to appreciate the legal framework on land in Kenya. From the time of attaining independence of the Country, there has been very clear methods and procedures of the acquisition of land to public, individual and community categories. 3. The provision of Article 40 ( 1 ) & ( 2 ) of Constitution of Kenya, 2010 provides:- **40.(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-** **(a) of any description; and** **(b) in any part of Kenya.** **(2) Parliament shall not enact a law that permits the State or any person-** **(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or.......** **(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired”.** 1. I have noted that the first certificate of title deed for the suit land herein was issued on 13th January, 1986 under the Registered Land Act, Cap 300 (Now Repealed). Thus relevant provisions would be Sections 27, 28 and 143 of the RLA to wit:-. **Section 27(a) “Subject to this Act(a) the registration of a person as the proprietor of land shall be vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”** **Section 28 of the Act provides that:-** **“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever…”** **Section 143 (1) of the Act provides thus:** **“Subject to Sub Section (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake** **(2) The register shall not be rectified so as to affect the title of a particular who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default”** 1. However, considering that the Act has now been repealed, and based on the saving Clause under Section 107 of the Land Registration Act, No. 3 of 2012, the applicable law is the Lands Registration Act, No. 3 of 2012 and the relevant provisions being Sections 24, 25 and 26 (1) of the LRA , No. 3 of 2012 and the Land Act, No. 6 of 2012. This Legal position finds grounding in the provisions Section 23 ( 3 ) ( c ) of the Interpretation and General Provisions Act, Cap. 2 which provides. **“Where a written law repeals in whole or in part another written law, then unless a contrary intention appears the repeal shall not affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law so repealed”** 1. This position was upheld in the cases of ***“Samwuel Kamau Macharia & Another – Versus – Kenya Commercial Bank Limited & 2 Others (2012) eKLR”*** and ***“Tukero Ole Kina & Another – Versus – Tahir Sheikh Said (also known as TSS) & 5 Others (2015) eKLR”***. Having stated that, the Provisions of Section 7 of the Land Act No. 6 of 2012 provides the said methods on how titles may be acquired in Kenya. **Section 7 Title to land may be acquired through:-** 1. **Allocations;** 2. **Land Adjudication process;** 3. **Compulsory acquisition;** 4. **Prescription;** 5. **Settlement programs;** 6. **Transmissions;** 7. **Transfers;** 8. **Long term leases exceeding Twenty one years created out private land; or** **Any other manner prescribed in the Act of Parliament.** 1. From the very onset, and as a fundamental legal issue, the Honourable Court strongly discern that this is a case of competing title deed between the Plaintiff and the Defendants. It will demand concerted efforts and wisdom to arrive an fair, just and Equitable determination in this matter. As King Solomon did in the case of the two harlots claiming the living child in the Holy scriptures 1 Kings 3:16 to 28 (what has now come to be known as “***the Solomonic wisdom”***), this Honourable Court has the same daunting legal task to make a determination on the legitimacy and legality on the indefeasible ownership, rights and interest over all these parcels herein. That is the pith and substance of this Judgement. To do so, the Honourable Court is guided by the Court of appeal in the case of: ***“Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No.239 of 2009”***, the Appeal Court held that:- ***“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”*** 1. By and large, it is critical to cause the root of title here for the suit property. Primarily, the Plaintiff's evidence on this point is compelling and largely uncontroverted. PW - 1, a director, produced the original Certificate of Title Deed (Plaintiff Exhibit No. 2) issued on 14th January, 1986 in Court. It was the Plaintiff's name. He also produced a certified copy of the transfer (Plaintiff Exhibit No. 5) having acquired it through purchase from the original owner, Mushihiri Juma Mboga, to the Plaintiff, dated 20th December 1985, for a consideration of a sum of Kenya Shillings Ninety Thousand (Kshs. 90,000/-). This transfer was registered on 13thth January 1986. The Plaintiff further produced the consent of the Land Control Board (Plaintiff Exhibit No. 6) and correspondence with surveyors (Plaintiff Exhibit No. 7, 8, 9) and Kenya Power (Plaintiff Exhibit No. 10) from the years 1985 to 1987, demonstrating its early assumption of ownership and intention to develop the land. 2. Crucially, in the course of the proceedings, the Plaintiff produced an Official Search (Plaintiff Exhibit No. 3) dated 1st April, 2015, which unequivocally states that the registered proprietor is “APOLLO HOTELS LIMITED”. This document, issued by the very office of the 6th Defendant, is powerful “***prima facie”*** evidence of the Plaintiff's title as of that date. Indeed, the provision of Section 26 (1) of the Land Registration Act, No. 3 of 2012 come to play here. 3. According to the provision of Section 26 (1) of the Land Registration Act (2012), and as been relied heavily by all the Learned Counsels herein, it provides as follows:- **“A Certificate of Title issued by the Registrar upon registration shall be taken by all courts as a prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, except on grounds of fraud, misrepresentation, illegality and corrupt scheme.** Section 26 (2) provides that:- **“certified copy of only registered instrument signed by the registrar, shall be received in evidence in the same manner as the original”.** 1. In this regard, clearly, the ownership of the Certificate of title to the suit property are challenged. Although the Defendants claim to be holding original titles from the sub – division of the main one Number 394, none of them led any credible evidence to challenge the validity of the Plaintiff's initial acquisition of its Certificate of Title or its registration. The 4th Defendant’s own bundle of documents curiously included a copy of the Plaintiff’s Title Deed and the 1985 Transfer, which inadvertently bolstered the Plaintiff’s case. Paradoxically, he was not able to produce an original Certificate of Title on the main parcel No. 394 in his names in order to justify him undertaking the sub – division and registration of the six ( 6 ) resultant titles as alleged and hence causing them to be transferred to all the other Defendants. 2. When a person’s ownership to a property is called into question, it is trite that the said proprietor has to show the root of his ownership. See the case of ***“Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [2016] eKLR”***, where the Court held that; ***“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.”*** 1. The main question here is that out of all these titles which one is genuine and valid in law? It is trite law that when there are two competing titles, the first in time will prevail. This position was emphasized in the case of ***“Wreck Motors Enterprises – Versus - The Commissioner of Lands and Others Civil Appeal Civil Appeal No. 71 of 1997”***, where the court held that: - ***‘Where there are two competing titles the one registered earlier is the one that takes priority’*** 1. The same position was held in the case of ***“Gitwany Investment ltd – Versus - Tajmal Ltd & 3 Others (2006) eKLR”*** where the Court held that:- ***‘……the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issues two title in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally, without fraud save for the mistake then the first in time must prevail’*** 1. In my view, I therefore find that the Plaintiff’s title was first in time having been registered on 13th January, 1986 and as equity teaches in its maxim that; ***“when two equities are equal, the first in time prevails”***, then the Plaintiff’s title for the suit property with the deed with all indefeasible rights, title and interested vested in him being dated 13th January, 1986. It means being the first in time as against the title being claimed by the 5th and 8th Defendants. 2. A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld. 3. Ordinarily, no land should be registered more than once and having two separate title deeds held by separate persons. Therefore in this case, there must be one title deed which is genuine and one which was issued either unlawfully or through mistake and thus double allocation. Balancing the two or three competing titles, it is my view that the Plaintiff holds a good tile to the suit property being that there is no contrary evidence that the same was transferred to the Defendants as alleged. 4. In the foregoing, the Plaintiff has proved on a balance of probabilities that it was and, according to the official records, still is the registered proprietor of all that parcel of land known as Land Reference Number Kwale/Galu Kinondo/394. For this reasons, I discern that Plaintiff herein is the lawful owner of the suit property with all the indefeasible rights, interest and title vested in him by law – Article 40 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010, Sections 24, 25 and 26 ( 1 ) & ( 2 ) of the Land Registration Act. No. 3 of 2012 having satisfactorily explained the root of his title. ***ISSUE No. b). Whether the initial transfers from the Plaintiff to the 1st, 2nd, 3rd, and 4th Defendants, and the subsequent subdivision of the suit property, were procured by fraud and are therefore null and void*** 1. Under this sub title, the Honourable Court is called to examine whether or not there was fraud in the initial acquisition of the mother title LR. Kwale/Galu Kinondo/394, the transfers and sub divisions into resultant titles. Of course, the issuance of two titles is not contemplated in the law and strictly speaking should not happen. If the Land Registry followed all processes and procedures as they are required to do, this is not a phenomenon that should occur. Unfortunately, it is a sad reality in our country, that there may be more than one title to the same land issued to different people. Probably it is time that we seriously investigated the personnel at the Lands Registry and prosecuted them for a lot of people have suffered pain and loss out of their ineptitude or blatant fraudulent dealings. If they did their work as required of them, we would not have cases such as these. I note that I have digressed and I better come back to the matter at hand. 2. Having acquired title by way of fraud, can the title held by the Defendants be protected ? My short answer is a resounding NO ! The applicable law is the provision of Section 26 of the Land Registration Act which provides as follows :- **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.** **(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.** 1. It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. 2. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of ***“Elijah Makeri Nyangwara – Versus - Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012”*** where I stated as follows :- ***“…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions.”*** I stand by the above words and I am unable to put it better that I did in the said dictum. 1. **‘Fraud’** has been defined in Blacks Laws Dictionary as; **“Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to cause him an injury.’’** 1. Further from the **Black’s Law Dictionary Ninth Edition at Page 731**also defines **‘fraud’** as:- **“A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”** 1. In **Concise Oxford English Dictionary 12th Edition at page 564**, the term “Fraud” is defined, inter alia; 2. **Wrongful or criminal deception intended to result to financial or personal gain.** 3. **A person or thing intended to deceive.** 4. A Court may apply the provision of Sections 26 and 80 of the LRA regarding a title obtained fraudulently upon distinct proof. In ***“Gladys Wanjiru Ngacha – Versus - Treresa Chepsaat & 4 others (2018) eKLR”*** where the decision in Lalji Makani (1957) EA 314 at 317 was applied, Court of Appeal held; **“Allegations of fraud must be strictly proved............something more than a mere balance of probabilities is required.”** 1. At this juncture, I am persuaded and make reference to the case cited by the Learned Counsel for the Plaintiff on how fraud is perpetuated these days at the Land registry. This is the case of:- ***“Mariera & another – Versus - Ongwancho (Supra)”.*** Court held:-- ***“31.The fraudulent scheme is not difficult to decipher. From my assessment of the evidence herein, this is how the fraud works: The Land Registry manually keeps instruments of disposition in what they call a Land parcel file. They also keep registers to indicate entries of such dispositions. The registers, or cards, are in two colours; a Green Card for a freehold title, and a White Card for the leasehold title. Land fraudsters have discovered that they can cause to disappear the genuine register (Green Card or White Card) from the Lands registry. They have also discovered that they can cause to vanish the other genuine supporting title documents in the parceI file. Indeed, nothing complicated in doing so; you simply get crooked personnel in the Lands office to pluck out these documents physically from the records in the Lands registry. They are then spirited out of the registry. In place, other fraudulent documents purporting to be documents of dispositions related to the land in question will be planted. A new Green card or White card will also be created and planted in the register after the original genuine one will have been made to evaporate into thin air. Thus, if a person interested in the land, say a buyer or chargor, goes to conduct a search or inspect the parcel file, it is the fraudulent documents and fraudulent register that they will find. A search will be issued indicating the name of the fraudster as the proprietor and the fraudster can then proceed to deal with the title as he so wishes. He can either sell or charge the title, or simply take over the land from the genuine owner if that was his intention. In all this, the fraudster is emboldened in the belief that if the genuine owner, or any other person goes to the Lands registry, what he will find are his documents, i.e. the fraudulent ones, and that there will be no record of the genuine documents or register. If you call the Land Registrar to testify, he/she may very well tell you that their records indicate the fraudulent owner as the owner of the land. The genuine owner of the land is left in a limbo. If he has nothing in his hands to demonstrate what would be the genuine dispositions, and the hope and prayer that the court is going to believe him over the other evidence, he may very well lose his land through a devious scheme.*** ***32.Courts need to be alive to this new kind of fraud and exercise caution when dealing with cases concerning two title holders. It is trite that only one title is the correct one; but which one? A careful and thorough analysis needs to be done. The court may need to call for, and look at the original documents. If a person has none, he should explain why he only has copies. Unless the documents overwhelmingly speak for themselves, persons shown in the dispositions need to be called as witnesses unless explanation is given as to why they cannot come to testify. At times, a court will need to go out of its way to call for evidence which none of the parties have produced. The root of title and paper trail needs to be carefully analyzed”.*** 1. The central mystery of the instant case is how subsequent transactions and a sub - division could occur while the Plaintiff still held the original Certificate of Title to the suit land. The Plaintiff's evidence reveals a disturbing trail of illegalities, irregularities and unlawfulness to their land. These were:- 2. **The “Lost” and “Resurfaced” Green Card:-** PW - 1 testified that in March, 2012, a search for the property could not be conducted as the Green Card was missing from the registry. This necessitated a a publication of a Gazette Notice (Plaintiff Exhibit Numbers 12 and 14) on 4th May, 2012, notifying the public of the loss and inviting for any objections. However, a “Certified Copy of the Green Card” (Plaintiff Exhibit Number 4) was later produced, showing entries after the Plaintiff's ownership: a transfer to the 1st Defendant (26th September, 2002), then to the 2nd and 3rd Defendants (18th February, 2003), then to the 4th Defendant (24th October, 2008), and finally a closure for sub - division (20th February, 2012). The Land Registrar (DW for 6th and 7th Defendants) confirmed the original Green Card’s disappearance and subsequent reappearance with these dubious entries. He testified that the signatures on these subsequent entries were not those of the Land Registrars in office at the time and were forgeries. His professional opinion was that Entries 6 to 10 on the ***“resurfaced” Green Card”*** were ***“not genuine”*** and should be cancelled. Indeed, in his testimony, the Land Registrar – who was the current one - when asked what he would have done in the given circumstances. His answer was straight, blunt, honest and candid: ***“I would cancel all thee sub – divisions had it been that there was a Court proceeding…”*** 3. **The Unexplained Transactions:-** The Plaintiff categorically denied ever selling, transferring, or consenting to the sub - division of its land. No sale agreements, transfers, or consents from the Plaintiff to the 1st Defendant were ever produced in court. The 1st Defendant did not defend the suit. The 2nd and 3rd Defendants testified but could not produce any document showing how the 1st Defendant acquired title from the Plaintiff. Their defense was essentially that they bought from the 1st Defendant and later sold to the 4th Defendant, but they offered no proof of a valid root of title. For umpteeth times, the Court holds that:- the Plaintiff was still holding the original Certificate of Title for the main suit land in their name. PW – 1 showed it to Court. None of the Defendants raised any objection whatsoever. 4. **The Sub - division Process:-** The Mutation Form (from the 4th Defendant’s bundle) purported to sub - divide the suit property. It listed the registered owner as “David K. Kandie” (the 4th Defendant). PW - 2, a Qualified Licensed Land Surveyor, testified that for a sub - division to be approved, the Land Registrar must be satisfied that the person applying is the registered owner. The Land Registrar's evidence was that this process was “illegal and irregular” as it was done without the production and subsequent surrender of the original title deed from the registered owner (the Plaintiff). 5. I take note that this pattern of a missing file, a miraculously reappearing register with new entries and transactions conducted without the production of the original title is a classic hallmark of fraud within land registries as eloquently described by my brother Munyao Sila J in ***“Mariera & another (Supra)”***. With the definition of fraud in mind and having held that Plaintiff is the rightful owner of the suit property, then any interests in land passed on to the Defendants documents were forgeries based on the fact that the person that was alleged to have signed them was not called to authenticate the same and it is duly noted by this Honourable Court that there are discrepancies in the title numbers. It then follows that there were deceitful acts of providing documents that were not genuine or whose authenticity is in doubt and that amounts to fraud. 6. Having carefully analyzed the available evidence, the Court finds and holds that the all the title deeds being held by the 1st, 2nd, 3rd and 4th Defendants. It is therefore my finding that the Plaintiff has proved to the required standard (more than a mere balance of probabilities) that the transfers from the Plaintiff to the 1st, 2nd, 3rd and 4th Defendants and the subsequent sub division of the suit property, were orchestrated through a fraudulent scheme involving the manipulation of records at the Kwale Lands Registry. These transactions are therefore null and void ab initio. The title of the 4th Defendant, from whom all subsequent purchasers bought, was fatally defective, irregular and unlawfully acquired. ***ISSUE No. C. Whether the 5th, 8th, 9th, 10th, 11th and 12th Defendants are bona fide purchasers for value without notice, whose titles are immune from cancellation*** 1. Under this sub title the Honourable Court observes that it is meant to examine whether 5th, 8th, 9th, 10th, 11th and 12th Defendants are bona fide purchasers for value without notice. **Black’s law Dictionary 10th Edition** defines a ‘**bona fide purchaser’** as follows: - **‘One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.’** 1. The 5th, 8th, 9th, 10th, 11th and 12th Defendants (all claiming to be the “Purchasers”) argue that they are protected under the doctrine of bona fide purchaser for value. They testified to conducting due diligence: visiting the site, checking beacons, obtaining official searches, and procuring titles. They claim to have paid valuable consideration and to have had no notice of the Plaintiff's claim. 2. On challenging validity of title, the provision Sections 26 (1) (b) of the Land Registration Act, No. 3. 3. In the case of ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others (2015) eKLR”***, the Court of Appeal dealt exhaustively with the issue of bona fide purchaser for value without notice and held that a party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular. Further in the Uganda Court of Appeal Case of ***“Katende – Versus - Haridar & Company Ltd (2008) 2 EA 173”***, the Court defined what amounts to a bona fide purchaser for value thus: - **'A bona fide purchaser for value is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, he must prove the following:** **a. He holds a Certificate of Title** **b. He purchased the Property in good faith;** **c. He has no knowledge of the fraud;** **d. The vendors had apparent valid title;** **e. He purchased without notice of any fraud;** **f. He was not party to any fraud.** **A bona fide purchase of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.’** 1. While in the case of ***“Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura – Versus - Attorney General & 4 others (2017) eKLR”***, the Court of Appeal held that a party cannot claim a bona fide purchaser for value where the vendor did not have a valid title. 2. The legal test for this doctrine is well settled. The Supreme Court in ***“Dina Management Limited – Versus - County Government of Mombasa & 5 others [2023] KESC 30”*** affirmed the principles set out in ***“Katende – Versus - Haridar & Company Ltd [2008] 2 EA 173”***, which requires a purchaser to prove: - 3. ***They hold a certificate of title.*** 4. ***They purchased the property in good faith.*** 5. ***They had no knowledge of the fraud.*** 6. ***They purchased for valuable consideration.*** 7. ***The vendors had apparent valid title.*** 8. ***They purchased without notice of any fraud.*** 9. ***They were not a party to any fraud*** 10. Yet in the case of ***“Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”***, the Court of Appeal held that:- ***“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”*** 1. Applying these tests to the purchasers in this case the court notes the following: - 2. **Certificate of Title & Valuable Consideration**: They undoubtedly hold certificates of title for their respective subdivisions and provided evidence of payment. This prong is satisfied. 3. **Apparent Valid Title and Notice**: This is the crux of the matter. The Purchasers relied on official searches from the Kwale Lands Registry that showed their vendors as the owners. However, the due diligence of a bona fide purchaser in Kenya must now extend beyond a mere official search. The Court of Appeal in ***“Mwangi James Njehia & Another – Versus - Simon Kamanu, Civil Appeal No. 177 of 2019”*** signaled a shift, suggesting the requirement of “apparent valid title” needs revisiting due to sophisticated fraud. 4. I take further notice that the purchasers were buying subdivisions of a primary title (Kwale/Galu Kinondo/394). A truly diligent purchaser would have inquired into the history of that primary title. Had they done so, several red flags would have emerged: - 5. The Gazette Notice (Plaintiff Exhibit No. 12 and 14) of 4th May, 2012, published in the Kenya Gazette, announced that the Green Card for the original parcel (394) was lost. This was a public notice that should have put any potential purchaser of a derivative parcel on high alert. It indicated a serious problem with the integrity of the records for that land. 6. The Purchasers bought their plots in 2012 and 2013. The Gazette Notice was published in May, 2012. Ignoring a Gazette Notice is a fatal flaw in a claim of due diligence. See ***“Weston Gitonga & 10 others – Versus - Peter Rugu Gikanga & another [2017] eKLR”***. 7. A check on the root title would have revealed that the original proprietor was Apollo Hotels Ltd, not their immediate vendors. None of the Purchasers demonstrated that they inquired about how their vendor (often the 4th Defendant) acquired the entire parcel from Apollo Hotels Limited. They simply accepted the state of the register for the sub - divisions at face value 8. On good faith and lack of knowledge, the Court observes that given the existence of the Gazette Notice, the Purchasers cannot claim they had no notice of a potential problem. A bona fide purchaser must be innocent not only in fact but also in law. Failure to inquire into a glaring red flag like a Gazette Notice announcing missing records negates a claim of good faith and lack of notice. 9. Based on the facts which I have analyzed above, I find that since the Plaintiff has proved to have legitimate claim over the suit property, it is my considered view that the provision of Section 26 (2) of the Land Registration Act does not offer the 5th, 8th, 9th, 10th, 11th and 12th Defendants. In so far as I am sympathetic to their plight, I find that their vendor did not pass a good title to them. I find and hold that the 5th, 8th, 9th, 10th, 11th and 12th Defendants have failed to prove they are bona fide purchasers for value without notice. Their failure to account for the Gazette Notice and to conduct due diligence on the root title means they purchased the property with constructive, if not actual, notice of the defects in their vendor's title. The doctrine cannot protect them. 10. In the foregoing, I find that the 5th, 8th, 9th, 10th, 11th and 12th Defendants cannot be deemed as bona fide purchasers for value without notice. ***ISSUE No. d). Whether the 6th and 7th Defendants were liable for the fraudulent activities that were meant to deprive of the rightful owner of its property?*** 1. Under this sub - title this Court shall look into the role of the 6th and 7th Defendant in the fraudulent activities on the records of the suit property. The evidence of the Land Registrar revealed a catastrophic failure in the administration of the land registry in Kwale. The loss of the original Green Card, the failure to secure records, the registration of transactions without the production of the original title deed, and the signing of mutation forms by unauthorized officers all point to gross negligence and/or possible collusion by officers under the purview of the 6th and 7th Defendants. 2. The state, through its agencies, is the guarantor of the land registration system. When its officers act negligently or fraudulently, leading to the deprivation of a rightful owner's property, the state must bear responsibility. ***ISSUE No. e). What reliefs, if any, should be granted?*** 1. Under this sub title, we shall examine whether or not the Parties are entitled to the prayers sought starting either the Plaintiff. The Plaintiff sought for the following prayers: - 2. ***A declaration that the transfers registered in respect of parcel of land known as Kwale/Galu Kinondo/394 and the sub-division of the said land into at least 12 sub-divisions and the registration thereof into the names of the 4th and 5th Defendants and other third parties is irregular, unlawful and therefore null and void;*** 3. ***An order directing the County Land Registrar, Kwale and Christopher Mbuggus Well, Kiprotich Chesire, Richard Muiruri Kuria, David K. Kandie, Gisimba General Enterprises Limited, Alfred Kaibunga Baariu, Job Kigen Kangogo, Minnie Jemutai Tubei, Josephine Chepkechei and Eunice Wairuri Kibera to restore the parcel of land known as Kwale/Galu Kinondo/394 to its original state prior to the registration of the illegal transfers;*** 4. ***A perpetual injunction to restrain the selling, transferring, charging, pledging, leasing or in any manner whatsoever disposing or agreeing to dispose of any interest in the parcel of land known as Kwale/Galu Kinondo/394.*** 5. ***That an order of cancellation of the 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th Defendants’ titles issued for Kwale/Galu Kinondo/394.*** 6. ***An order of rectification to cancel all titles illegally, fraudulently and issued through entries relating to the illegal transfers of parcel of land known as Kwale/Galu Kinondo/394 and the restoration of the said parcel of land in the name of Apollo Hotels Limited.*** 7. ***An order of mandatory injunction to compel the 1st, 2nd, 3rd, 4th and 5th Defendants, their relatives, agents, servants and/or any other persons acting on the authority or instructions of the Defendant to give vacant possession of the suit property and to demolish and/or pull down to the ground level the illegal structures constructed thereon and to remove all the materials thereon failing which the structures be demolished and removed at their costs.*** 8. ***All such further or other accounts, inquiries, directions and relief as shall be just in the opinion of the Court.*** 9. ***Damages*** 10. ***Costs of and incidental to this suit.*** 11. On the **declaration and cancellation**, the Plaintiff has proved its case; I therefore issue a declaration that the transfers and sub divisions relating to LR. No. Kwale/Galu Kinondo/394 are unlawful, null, and void. The Plaintiff also prayed for the **rectification of the register**. 12. On the issue of cancellation/rectification of title, I wish to make reference to Section 143 of the Registered Land Act *(repealed)* that was the law in place at the time of registration of the Respondent’s title to the suit land, which stipulated thus: - * 1. **Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.’** 13. These provisions are replicated in the provision of Section 80 of the Land Registration Act, No. 3 of 2012 which provides that: **‘(1)Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.** **(2)The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.’** 1. The provision of Section 80 of the Land Registration Act gives this court the power to order the rectification of the register by directing the cancellation of any title or entry made by fraud or mistake. Article 40 (6) of the Constitution removes protection of title to property that is found to have been unlawfully acquired. This provision of the constitution coupled with the provision of section 26(1) (a) and (b) of the Land Registration Act in my view places a responsibility upon prospective purchasers of titled properties to diligently ascertain the status of a property before purchase. 2. Since the Court has held that 5th, 8th, 9th, 10th, 11th and 12th Defendants are not bona fide for value without notice as they acquired the suit land from a person who had no interest in the suit land to transfer them same to any person; the Court therefore issued the following orders: - 3. ***The Land Registrar, Kwale, shall cancel entries 6, 7, 8, 9, and 10 on the genuine green card for Kwale/Galu Kinondo/394.*** 4. ***The Land Registrar shall cancel all titles issued for the resultant subdivisions, namely Kwale/Galu Kinondo/2060, 2061, 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070, and 2071.*** 5. ***The register shall be rectified to restore Appolo Hotels Limited as the sole and absolute proprietor of Kwale/Galu Kinondo/394.*** 6. The Plaintiff also prayed for a permanent injunction against the Defendants. A permanent injunction is hereby issued restraining the 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th, and 12th Defendants, their agents, servants, or anyone claiming under them from selling, charging, transferring, leasing, or in any other way dealing with the suit property or any part thereof. 7. The Plaintiff sought a mandatory injunction and vacant possession. Before proceeding further, its significant to appreciate the great distinction between the prohibitory injunction as envisaged in the *“Locus Classicus”* case of ***“Giella – Versus - Cassman Brown, 1973 E.A. Page 358”*** and a Mandatory Injunction. The first authority on making this distinction was ***“Shepard Homes – Versus – Sandham (1970) 3 WLR Pg. 356 Case”*** in which Megarry .J as he then was stated follows:- ***“Whereas a Prohibitory Injunction merely requires abstention from acting, a Mandatory Injunction requires the taking of positive steps, and may require the dismantling or destruction of something already erected, or constructed. This will result in a consequent waste of time, money and materials. If it is ultimately established that the Defendant was entitled to retain the erection”.*** 1. Permanent Injunction fully determines the right of the Parties before the Court and is normally meant to perpetually restrain the commission of an act by the Plaintiff in order for the rights of the Plaintiff to be protected. This Court has the powers to grant the Permanent Injunction under the provision of Sections 1A, 3 & 3 A of the Civil Procedure Rules, 2010 if it feels the right of a Party has been fringed, violated and/or threatened as the Court cannot just seat, wait and watch under these given circumstances. In the course of addressing preceding issues, herein before, the court has found and held that indeed the Plaintiff is the lawful and legitimate proprietor of the suit property. In addition, the court also came to the conclusion that by virtue of being the registered proprietor of the suit property, the Plaintiff is entitled to partake of and benefit from the statutory privileges espoused by Sections 24 and 25 of the Land Registration Act, 2012. 2. The Plaintiff is entitled to vacant possession of its land. The 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th Defendants, and any other persons occupying the suit property by their authority, are ordered to vacate within 120 (One Hundred and Twenty) Days from the date of this judgment. Upon expiry of that period, the Plaintiff shall have possession. 3. On the prayer for demolition of the structures on the suit property, the Honourable Court observes that the developments on the land were erected illegally on land that did not belong to the developers. The Plaintiff cannot be expected to inherit illegal structures. A mandatory injunction is issued compelling the 1st, 2nd, 3rd, 4th and 5th Defendants to demolish all structures, fences, and improvements they erected on the suit property and restore the land to its original condition prior to the illegal sub - division, within the 120 - day vacation period. In the event they fail to do so, the Plaintiff shall be at liberty to enter the land and demolish the said structures at the cost of the said Defendants. 4. The Plaintiff also sought for damages; general damages for trespass. In respect to the prayer for damages for trespass, I will make reference to the definition of trespass as contained in **Clerk & Lindsell on Torts, 18th Edition, page 923, paragraph, 18-01** where it states thus: as any intrusion by a person on the land in the possession of another without any justifiable cause. While Section 3 of the Trespass Act provides that: - **“(1)Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.** **(2)Where any person is charged with an offence under subsection (1) of this section the burden of proving that he had reasonable excuse or the consent of the occupier shall lie upon him.”** 1. In the case of ***“Municipal Council of Eldoret – Versus - Titus Gatitu Njau [2020] eKLR”***, the Court of Appeal favorably cited the case of ***“M’Mukanya – Versus - M’Mbijiwe (1984) KLR 761”***, wherein the ingredients of the tort of trespass were described as follows: - ***“Trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership (See Thomson v Ward, (1953) 2QB 153.”*** 1. In the said case, the Court of Appeal further cited an excerpt from **Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition at page 428** which stated as follows:- **“Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.” [Emphasis supplied]** 1. Additionally, it is important to underscore that by virtue of being the lawful owner of the sui property, the Plaintiff is therefore entitled to the prayers sought. For coherence, the scope of the rights of the rights of a registered owner of landed property were highlighted and elaborated upon in the case of ***“Mohansons (Kenya) Limited – Versus – Registrar of Titles & 2 Others [2017] eKLR”***, where the Court stated and observed thus; ***[18] As held by the Court of Appeal for East Africa held in Moya Drift Farm Limited – Versus - Theuri (1973) EA 114 a registered proprietor of land is the absolute and indefeasible owner of land and is entitled to take proceedings for trespass and eviction of a trespasser even if he did not have possession of the property. Spry, V-P at 116, considered the effect of section 23 of the Registration of Titles Act and held –*** ***“I cannot see how a person could possibly be described as “the absolute and indefeasible owner” of land if he could not cause a trespasser to be evicted. The Act gives a registered proprietor his title on registration and, unless there is any other person lawfully in possession, such as a tenant, I think that title carries with it legal possession: there is nothing in the Act to say or even suggest that his title is imperfect until he has physical possession.”*** ***Sir William Duffus, P. ibid at p. 117 agreed with Spry, JA as follows:-*** ***“In any even I agree with the Vice-President that the fact that the appellant was the registered proprietor as owner in fee simple under the Registration of Titles Act, and as such vested with the absolute and indefeasible ownership of the land, was sufficient to vest legal possession of the land in the appellant and that this possession would be sufficient to support the action of trespass against a trespasser wrongly on the land.*** ***The third member of the Court, Lutta, JA agreed with the judgment prepared by the Spry, V – P.*** 1. Trespass has been established. I award the Plaintiff nominal damages of a sum of Kenya Shillings Ten Million (Kshs. 10,000,000/-) against the 1st, 2nd, 3rd, and 4th Defendants, jointly and severally. These are the parties who actively participated in the fraudulent acquisition and subdivision. The subsequent purchasers were essentially purchasers, not willful trespassers. 2. In the foregoing and summarizing all that the Court has determined above in this Judgment, the Court finds that: 3. The Plaintiff, Apollo Hotels Limited, is the rightful and registered proprietor of ALL THAT parcel of land known as Kwale/Galu Kinondo/394. 4. The transfers to the 1st, 2nd, 3rd, and 4th Defendants and the subsequent subdivision of the suit property were illegal, fraudulent, and null and void. 5. The titles created from the fraudulent subdivision, namely LR. No. Kwale/Galu Kinondo/2060 to 2071, and held by the 4th, 5th, 8th, 9th, 10th, 11th and 12th Defendants, are hereby cancelled. 6. The subsequent purchasers are not protected as bona fide purchasers for value. 7. The 6th Defendant (Land Registrar) failed in its statutory duty, leading to this fraud. ***ISSUE No. f). Who bears the costs of the suit?*** 1. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Black Law Dictionary defines cost to means:- ***“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.*** 1. The Proviso of Section 27 (1) of the Civil Procedure Act Cap. 21 holds that Costs follow the events. Section 27 ( 1 ) provides as follows:- **“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”** 1. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. Further, in the case of:-***“Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR”***quoted the case of ***“Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227”***the Court held:- ***“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”*** 1. In the instant case, the Plaintiff has successfully established its case and therefore it is awarded the costs of the Further Amended Plaint dated 28th February, 2023 accordingly. 2. **Conclusion and Disposition** 3. Ultimately, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the Preponderance of Probabilities and the balance of convenience finds that the Plaintiff has proved it case against the Defendants. Thus, for avoidance of doubt, the Court proceeds to make the following specific orders:- 4. **THAT Judgment be and is hereby entered in favour of the Plaintiff in terms of the Further Amended Plaint dated 28th February, 2023 in its entirety.** 5. **THAT a declaration do and is hereby made that all entries and transactions leading to the transfer of all that parcel of Land known as Land Reference Numbers Kwale/Galu Kinondo/394 from the Plaintiff to the 1st, 2nd, 3rd and 4th Defendants, and its subsequent sub - division into Plots bearing Numbers 2060 - 2071, are fraudulent, illegal, irregular, unlawful, null and void.** 6. **THAT an order do and is hereby issued directing the County Land Registrar, Kwale to rectify the land register by: -** 7. **Cancelling entries numbers 6, 7, 8, 9, and 10 on the register for land known as Land Reference Numbers Kwale/Galu Kinondo/394.** 8. **Cancelling all titles issued for all that parcel of land known as Land Reference Numbers Kwale/Galu Kinondo/2060, 2061, 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070, and 2071.** 9. **Restoring the name of Apollo Hotels Limited as the absolute and legal registered proprietor of all that parcel of land known as Land Reference Numbers Kwale/Galu Kinondo/394 with all the indefisiable rights, title and interest vested on it by Law whatsoever.** 10. **THAT a perpetual injunction do and is hereby issued restraining the Defendants, their agents, servants, or any person claiming under them from any further dealings with the suit property.** 11. **THAT a mandatory injunction do and is hereby issued compelling the 1st, 2nd, 3rd, 4th and 5th Defendants to vacate and demolish all structures erected on the suit property within 120 days, failing which the Plaintiff may do so at their cost.** 12. **THAT the Plaintiff is hereby awarded damages for the Trespass to the tune of Kenya Shillings Ten Million (Kshs. 10,000,000/-) to be paid jointly and severally by the 1st, 2nd, 3rd and 4th Defendants.** 13. **THAT the Defendants shall jointly and severally bear the costs of this suit as per the Further Amended Plaint dated 28th February, 2025 with the 1st, 2nd, 3rd and 4th Defendants bearing primary responsibility.** **IT IS SO ORDERED ACCORDINGLY** **JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS ………3RD .…….DAY OF …………JULY.………….2026.** **…………..….……………………..** **HON. MR. JUSTICE L.L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT MOMBASA** **Judgement delivered in the presence of: -** 1. M/s. Firdaus Mbula – the Court Assistant. 2. M/s. Bwire Advocate holding brief for Mr. Gakuo Advocate for the Plaintiff. 3. M/s. Ngigi Advocate for the 1st Defendant. 4. Mr. Morara Onsongo Advocate for the 2nd Defendant. 5. Mr. Mugendi Advocate holding brief for Mr. Muriethi Advocate for the 3rd Defendant. 6. Mr. Ondabu for the 4th Defendant. 7. M/s. Wasike Advocate holding brief for Mr. Musyimi Advocate for the 5th and 8th Defendants. 8. M/s. Nziwa Advocate for the 9th – 12th Defendants 9. No appearance for the 6th and 7th Defendants