[2025] KEELC 9 (KLR)

Azzuri Limited v Ziro (As the legal administrator of the Estate of the Late Lawrence Kadenge Ziro) & 5 others (Environment and Land Case Civil Suit 217 of 2014) [2025] KEELC 9 (KLR) (16 January 2025) (Judgment)

Neutral citation: [2025] KEELC 9 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment and Land Case Civil Suit 217 of 2014

MAO Odeny, J

January 16, 2025

Between

Azzuri Limited

Plaintiff

and

George Kadenge Ziro (As the legal administrator of the Estate of the Late Lawrence Kadenge Ziro)

1st Defendant

Kambi Kadenge Ziro

2nd Defendant

Valerio Bucciarelli

3rd Defendant

Kadziro Beach Limited

4th Defendant

Settlement Fund Trustees

5th Defendant

Kilifi Land Registrar

6th Defendant

Judgment

1. By a Further Amended Plaint dated 9th October, 2019 the Plaintiff sued the Defendant seeking the following orders:a.An Order of Permanent Injunction restraining the 1st, 2nd, 4th, 5th and 6th Defendants, their agents, servants, employee and/or any other person acting on their behalf from selling, alienating, trespassing and/or obstructing the Plaintiff from taking vacant possession of the suit property and/or interfering in any manner whatsoever with the suit property.b.An Order of Specific Performance directing the 1st and 2nd Defendants to honour their part of the bargain.c.Permanent Injunction against the 3rd and 4th Defendant, his agents, employees, servants and/or any other person acting on his behalf from claiming, purchasing and/or interfering in any manner with the suit property.

2. The 1st Defendant filed a statement of defence dated 20th January, 2017, denied the averments in the amended plaint and urged the court to dismiss the Plaintiff’s suit with costs.

Plaintiff’s Case 3. PW1 Anthony Safari Kitsao adopted his witness statements dated 19th November, 2014 and 21st January, 2019 and stated that he is a businessman and a Director of the Plaintiff Company. He also stated that the case against the 3rd Defendant was withdrawn.

4. According to PW1, he entered into a sale agreement for the purchase of land parcel No. 365 from Ziro family at a consideration of Kshs. 18. 9 Million of which he paid a deposit of Kenya Shillings Five Million (5,000,000/) on 28th June 2014 while on his way to Italy and paid the balance of the purchase price after he met the vendors. It was further a term of the agreement that he was to take possession upon payment of deposit on 28th June 2014 and that at the time of the agreement he was residing in Italy but had a representative who acted for him in the transaction.

5. PW1 told the court that they followed the requisite procedures, got the Land Control Board and the 5th Defendant’s consent and was issued with a title deed on 31st October, 2014. It is PW1’s evidence that he sent someone to cut trees but the 1st defendant stopped them.

6. PW1 further stated that he complained to the 2nd Defendant who informed him that he had also been sued by the 3rd Defendant in ELC Case No. 198 of 2014 of which they were joined but later withdrew prompting him to file the present suit. He also stated that no one occupies the land right now but there were other cases involving this land being ELC Case No. 32 of 20 15 which they sought orders against the Land Registrar.

7. PW1 testified that later the 4th Defendant was enjoined in these proceedings and they are not supposed to be in this case as they have no relevant documents in respect of the suit land. PW1 further testified that it is not true that there are several titles or double allocation over the suit land and if there are any then, they are fake.

8. According to PW1 the Defendants had reported the matter to the Directorate of Criminal Investigations but their documents were rejected by the Director of Settlement as the reference numbers they were using were not genuine. PW1 testified that there are two different letters of offer and one for the 1st Defendant alone while the other for the 1st and 2nd Defendant, further that the agreement mentions the letter of offer for the 2nd Defendant.

9. Upon cross-examination by Mr. Kimani counsel for the 1st and 4th Defendants, PW1 stated that he does not have the original register of the Chembe/ Kibabambe Adjudication Section but has affidavits sworn before Advocate Patrick Shujaa Wara dated 13th June 2014, from the family members which does not mention who was to receive the allotment letters from the family members. Further that he was not present when the affidavit was sworn but there was Maurice of Khaminwa & Khaminwa’s office who was doing everything on his behalf.

10. It was PW1’s testimony that at the time of the agreement there was no register so he could not do a search but did due diligence. That they had agreed on a consideration of Kshs. 18. 9 million and that the transfer dated 5th September 2014 shows the value of the land as Ksh 15 million (Ksh 15,000,000/=). PW1 also stated that the first registration came out in the name of the Plaintiff and being a settlement scheme they are therefore the first registered owners. He stated that when they filed the case, they already had title to the land and by then they had not paid the full purchase price.

11. According to PW1 he was not aware of any communication from the National Land Commission before they were issued with a title deed. PW1 further stated that they had been told there had been an embargo imposed by the government over the Chembe/Kibabamshe area but the same was lifted. He also stated that the Defendants were not completing the agreement because they had sold the land to a third party.

12. On further cross-examination by counsel, PW1 stated that they did not include the 4th Defendant in ELC Case No 56 of 2015 and ELC Case No 32 of 2015 because they were not aware of their existence. Further that he is aware of the response they received in Miscellaneous Case No 56 of 2015 vide a Replying Affidavit sworn by Felix Nyakundi, the Land Registrar who stated that the first title was recalled and cancelled and that the second registration was in the name of the 1st Defendant.

13. It was PW1’s testimony that paragraph 6 shows that the third green card was issued indicating the Plaintiff came to own the land in 2014 while the initial title had been issued in 2001, further that he did not know that the Land Registrar had recalled the title issued to Lawrence Kadenge Ziro as the transfer to the Plaintiff was irregular. PW1 stated that he does not agree with the position taken by the Land Registrar as the Chembe- Kibambamshe Adjudication Section first adjudication was done in 1978 and their company was not formed by then. He further stated that he has not prayed for the cancellation of any of the titles.

14. PW1 stated that they took possession of the suit land but cannot tell the exact date and that they attempted to fence the land in 2016 but there was a restriction placed in favor of the 4th Defendant. It was PW1’s further testimony that they won the case at the National Land Commission where they were declared the owners.

15. Upon cross-examination by Mr. Shujaa counsel for the 2nd Defendant, PW1 stated that he bought the land from the 1st and 2nd Defendants whom he did not meet during the execution of the agreement but met them later and that he was not allocated by the 5th Defendant. PW1 stated that the two showed him a letter of offer and went to the Assistant Chief who confirmed that the land belonged to the two but Lawrence Kadenge Ziro did not tell him he had another letter of offer.

16. Upon cross-examination by Ms. Lutta counsel for the 5th and 6th Defendants, PW1 stated that there were in existence two letters of offer which he was able to confirm their authenticity. He stated that the one dated 4th April, 2008 issued to the 2nd Defendant was the one he used to process the title. Further that the 5th Defendant confirmed that they issued it.

17. It was PW1’s evidence that they sued the 5th Defendant because, they wanted them to declare him as the owner which confirmation they already have. PW1 stated that they never went to the registrar after 2015 when Mr. Nyakundi refused to issue a search. He stated that the 2nd Defendant gave them titles showing the 1st Defendant was making fake titles.

18. Upon re-examination, PW1 testified that they never sued the 5th Defendant and the Land Registrar, it was the 1st and 4th Defendant who made an application for them to be joined. Further that at page 228 of the Plaintiff’s bundle indicated that the National Land Commission established that the Plaintiff’s title was the correct one and that they accused Mr. Nyakundi of fraudulently registering the 4th Defendant as the owner of the land.

Defendants’ Case 19. DW1 Felix Nyakundi who worked in Kilifi as the District Land Registrar testified that he recalls dealing with a matter involving Chembe/Kibabamshe/356 in ELC Misc 56/2015 where he swore an affidavit and stated that there were several records and multiple registrations in respect to the suit land. It was his testimony that when he took over, the first record dated 22nd December 1986 was in the name of the Government of Kenya.

20. DW1 further testified that in 1987, a transfer was done to Samini Julius Mwala and a title was issued on 19th January, 1994. That there were other transfers to one Said Tabit Said on 19th July, 1996 as per the green card at page 148. He also stated that this green card was cancelled and never heard about it.

21. DW1 further testified that there was another green card registered on 22nd December, 1986 in the name of the government, an entry on 23rd August, 2001 being a transfer from the 5th Defendant to Lawrence Kadenge Ziro, a title deed issued and a discharge of charge on 23rd August, 2001.

22. It was DW1’s evidence that there was a third set of green cards dated 31st October, 2014 where a transfer was made from the 5th Defendant to the Plaintiff and a title deed issued on the same date. DW1 further stated that he did not find any ongoing adjudication process when he was posted to Kilifi. It was his observation that the transfer from the 5th Defendant to the Plaintiff was highly suspicious as no direct transfer is ever done to limited liability companies where squatters are being settled.

23. According to DW1, it was his evidence that he never came across any letter of offer to the Plaintiff on the subject file; however, there were correspondences in respect of the green cards in the file. That the dispute was in respect to a title deed issued to the Plaintiff and produced his statement as contained in the Replying Affidavit and the annexures at page 148 to 177.

24. DW1 confirmed that he dealt with a transfer involving Chembe/Kibabamshe/356 where there was a sale from Lawrence Kadenge Ziro to the 4th Defendant and that he issued a title deed to the 4th Defendant on 17th June, 2015. He also stated that he assessed stamp duty for the transaction at Kenya Shillings 800,040/= which was paid on 17th June, 2015 vide a pay-in-slip attached with a transaction No TT15168H0L TR at 8:50 am and that he saw all the requisite papers before issuing the title.

25. DW1 testified that the transfer was accompanied by a discharge of charge registered on 31st October, 2014 by Mr. Taura Bao, a Land Registrar and that ordinarily, a discharge of charge is executed by the Director Land Adjudication & Settlement and in 2014, it was a person known as Ogega who held the position. He also stated that there was a transfer at pages 32 and 33 from Lawrence K. Ziro and the 2nd Defendant to the Plaintiff at a consideration of Ksh 15,000,000/= on 4th April, 2008 in the presence of the District Land Adjudication Settlement Officer (herein referred to as DLASO) Malindi. Further there was a certificate of consent but does not appear to have been registered and they are not documents from the registry used to register as they do not form part of the transfer documents.

26. DW1 was shown pages 30 and 31 and he testified that they were stamp duty receipts issued by the Kenya Revenue Authority on 5th July, 2014 between Lawrence Kadenge and the Plaintiff of Ksh 340,000/=. He testified that the stamp duty was paid in Nairobi which is normally not the case and that the assessor has never worked in Kilifi but was based in Nairobi.

27. DW1 stated that he doubted the registration because it was too fast as it was not possible for the discharge and transfer to be done the very same day. Further that he did not see any transfer between Mr. Lawrence Kadenge Ziro and his brother the 2nd Defendant to the Plaintiff which should have been in the file.

28. According to DW1, the title to the 4th Defendant issued on 17th June, 2015 is the genuine title and has never been summoned to the Police Station in respect of the suit land and that he has never received any complaint from the Plaintiff.

29. DW1 testified that he did due diligence before he issued the title and that he was instructed by the Chief Land Register to proceed and effect the transfer and in another letter, he was asked to cancel and expunge the second set of documents issued to the Plaintiff. He also stated that a letter dated 4th April, 2008 at page 35 are addressed to Lawrence Kadenge Ziro and if the offer letter was accepted, then there could be no other offer.

30. Upon cross-examination by Mr. Shujaa counsel for the 2nd Defendant, DW 1 stated that the first registration was on 11th August, 1987 in the name of Sambili Julius Mwaro as per paragraph 4 of his replying affidavit. He also confirmed that the title was recalled and cancelled but was not sure of the date. It was his testimony that on 21st January, 1994, a power of attorney was registered in favor of Baya Mulingo but does not know the donor. Further that a transfer to Said Thabit Said was done by someone through the power of attorney.

31. According to DW1, the title was sub-divided from 583-594, does not know what happened to the sub-divisions however some were transferred to Mayungu Estates Limited in 1998. He stated that it is not clear what happened to Mayungu’s title. DW1 further told the court that he did not call for the Plaintiff’s titles as he was getting conflicting directions. That there were correspondences in favour of the Plaintiff but there was no request to expunge records of the 4th Defendant and that he ignored a letter by Mogane Machora stating that the Plaintiff was the owner of the suit land as he was a junior officer.

32. Upon cross-examination by Ms. Lutta counsel for the Attorney General, DW1 stated that he drafted the replying affidavit as per the instructions from the Attorney General and by then all the titles referred to in his affidavit had already been issued. He stated that the title issued to Lawrence K. Ziro emanated from the 5th Defendant.

33. Upon cross-examination by Mr. Mwadilo for the Plaintiff, DW1 stated that he came to Kilifi at the beginning of 2015 and left in August 2019. He confirmed that he had mostly been dealing with RLA titles and most titles in Kilifi relate to Settlement Schemes. DW1 was shown page 222 of the Plaintiff’s list and he stated that Chembe/Kibabambe scheme No. is 764 and Kilifi/Jimba is 763 and that he only deals with parcel numbers and not scheme numbers. He stated that it is true that he has said at paragraph 5 of the Replying Affidavit that a title was issued to Lawrence Kadenge on 23rd August, 2001 which information he sourced from the green card.

34. According to DW1 the offer given solely to Lawrence Kadenge Ziro stands and not the one given to him and his brother and there was an investigation going on by the Directorate of Criminal Investigations in regard to the letter of offer. Further DW1 confirmed that the DLASO wrote a letter dated 8th December, 2014 stating that they had no records of the offer and that at page 105 a title was issued to Lawrence Kadenge Ziro on 23rd August, 200 and another one with a different serial number. Thus it cannot be procedural for three titles to be issued in respect of the same parcel of land to the same persons on the same date hence they must be fake.

35. Upon further cross-examination, DW1 stated that he knew neither that Lawrence Kadenge Ziro was negotiating to sell the land to the Plaintiff nor that there was an agreement with Keneth Mwige to purchase the suit parcel at Kshs 1. 5Million per acre. Further, that stamp duty is assessed from the declared value and not the agreements.

36. Upon re-examination, DW1 testified that he never participated in the National Land Commission process even though he was the County Land Registrar Kilifi in 2017 when the National Land Commission made the decision. He stated that they were neither called nor represented in the proceedings, further that it was not possible for three different amounts to be inserted for the same transaction and that the serial numbers on the three titles cited by the Plaintiff have nothing to do with their records. He testified that they do not refer to them and according to him, those were fabricated documents, which were not from their office as the font, and notes show they were scanned elsewhere.

37. DW2 Mary Naole Kai adopted her witness statement dated 8th January 2016 and stated that she retired as a Land Registrar in 2010 at Kwale Land Registry. DW2 testified that she was a Land Registrar in Kilifi County from 1989 to March 2002 and that in 2001, she received discharges and transfers of the Settlement Fund Trustees Nairobi in respect of Chembe/Kibabamshe/356 and 271 which were purportedly executed by the District Land Adjudication Settlement Officer in Nairobi (DLASO). It was her evidence that there was a transfer of land Chembe/Kibabamshe 356 in favour of Lawrence Kadenge Ziro by Nehemiah Ngeno who signed and sealed the transfer on 18th July, 2001 whereby the transferee also appended his signature.

38. DW2 confirmed that she registered the discharge and transfer on 23rd August, 2001 and after registration, she opened a green card in the name of the 5th Defendant and that a second one in the name of Lawrence Kadenge Ziro. She further stated that she issued him with a title on the same day. As a Land Registrar, she is not the allocating authority in the settlement scheme as it is done by the Settlement Officer who issues letters of offer, thereafter a valuation is done and a discharge of charge is issued.

39. It was DW2’s testimony that Lawrence Kadenge Ziro was issued with a letter of offer which is evidence that he was allocated the plot and that she issued only one title in respect of plot No. Chembe/Kibabamshe/ 356 in 2001.

40. DW2 further stated that in 2001, they did not have scanned documents as seen at page 23 where the property section of the title is scanned. As for the letter of offer dated 4th April 2008 to Lawrence Kadenge Ziro and Kambi Kadenge Ziro ID Number 11568031, she stated that at that time Chembe/Kibabamshe land had already been allocated in 2008 and it could not have been allocated again.

41. According to DW2, Chembe/Kibabamshe Settlement Scheme, Kilifi Jimba and Kakuyumi Machaguni Settlement Scheme plots were allocated to people who were not residents of those sections and that in 1986 the titles were gazetted and nullified and later allocated to owners who were on the properties hence there was a double allocation. It was further DW2’s evidence that the land was allocated to the squatters on the parcel and was not to be allocated to limited liability companies.

42. Upon cross-examination by Mr. Shujaa for the 2nd Defendant, DW2 stated that she went to the Directorate of Criminal Investigations to shed light in respect of plot No. 35 and that she had been shown photocopies of title deeds but she cannot remember the number. DW2 stated that she was asked whether the signature in the copies of the copies of the title belonged to her but denied the same and stated that they were forgeries. She admitted to having issued a title at page 6 to Lawrence Kadenge Ziro

43. Upon cross-examination by Mr. Ojwang counsel for the 5th and 6th Defendants, DW2 confirmed that Chembe Kibabamshe 356 was properly allocated to Lawrence Kadenge Ziro and the discharge of charge was forwarded to the land office together with the transfer.

44. Upon cross-examination by Mr. Mwadilo, counsel for the Plaintiff, DW2 stated that the signature on the photocopies of the title was not hers and that one cannot register a transfer without a discharge of charge. The witness also stated that Settlement Schemes do not have LR Numbers and that the allocation was for Lawrence Kadenge Ziro and not a Limited company. It was DW2’s evidence that the land registry in Nairobi stated that they did not have records of the letter of offer hence it was not possible for a Land Registrar to register a transfer with a fake discharge of charge.

45. Upon re-examination by Mr. Kimani, DW2 testified that in 2002, there were payments by the 5th Defendant but the M-Pesa mobile payment platform was not in existence further that it does not make reference to any Land Registrar or registry, hence the document may have originated from the Ministry of Lands headquarters. It was her evidence that she could not have made entries in the green card if there was no discharge of charge which is kept in the parcel file.

46. DW3 George Kadenge Ziro a son and an administrator of the estate of the late Lawrence Kadenge Ziro, adopted his witness statement dated 13th December, 2022 and stated that his late father sold the suit land to the 4th Defendant in January 2014. It was his evidence that it is not true that the Plaintiff bought the land from his late father.

47. DW3 testified that the 2nd Defendant is his uncle but it is not true that they were allocated the land with his father and that the agreement dated 14th June, 2014 is not genuine as his father was the one allocated the land. DW3 also stated that there are no houses on the suit land as they had a homestead in Matsangoni and that the 2nd Defendant stays in Malindi.

48. Upon cross-examination by Mr. Shujaa for the 2nd Defendant, DW3 stated that his father lived on Matsangoni and he did not stay on the suit land but used to cultivate the land in 1997. DW3 further stated that his father was not a squatter during adjudication in 2000 but was allocated the land by the government. He also denied that the land belonged to his grandfather Kadenge Ziro and later that the land was given to his father and uncle.

49. DW3 stated that he knows that his father was represented by Mouko Advocates who had filed documents in this case and when shown a replying affidavit by Lawrence Kadenge Ziro dated 3rd February, 2015, he stated that he does not know whether his father signed an agreement with the Plaintiff. DW3 further testified that his father did not sign the affidavit and did not report to the police that his signature had been forged. DW3 stated that he is not aware that his father had the habit of selling the suit land to different people and that he saw the title in the name of his father in 2001 and he is not aware whether his father gave the title to Mouko advocates. DW3 stated that his late father told him about the agreement dated 8th January, 2014 between himself and Kenneth Mwige but was not present when his father signed the agreement.

50. Upon cross-examination by Ms. Lutta counsel for the 5th and 6th Defendant, DW3 stated that his grandfather was from Gahadeni in Ganda ward and he did not sign any documents in respect of this parcel of land and was not present when the agreements were signed. DW3 stated that he does not know whether the payment in the letter of offer were made within 90 days.

51. Upon cross-examination by Mr. Mwadilo counsel for the Plaintiff, DW3 stated that there are two letters of offer in this case, one in the name of his father and the other in both the names of his uncle and his father of which the one to his father is the genuine one. DW3 stated that he is not aware of the special power of attorney to Valerio Buctarelli and he does not know Kameli Kipunda, the owner of plot No 355 Chembe/Kibabamshe and does not know whether his father was paid by the Plaintiff

52. Upon re-examination by Mr. Kimani, DW3 testified that the letter to the Land Registrar is for 11th June, 2015 was addressed to his father and has not seen the people who swore affidavits in court. Further that the documents were drawn by Khaminwa & Khaminwa and attested to by Patrick Shujaa.

53. DW4 Kenneth Mwige adopted his witness statements dated 1st April 2016 and 14th December 2016 as his evidence and stated that he is a director and shareholder of the 4th Defendant Company and that he was authorized by the company to give evidence in the case.

54. DW4 further adopted an affidavit dated 14th December 2022 as part of his evidence and produced documents in the list of documents dated 8th July, 2019 as DEX No 6. DW4 testified that he has seen the letter dated 11th June 2015 from the Ministry of Lands at page 100 of the Plaintiff’s list of documents by Machura Mogare at paragraph 3 of the letter and his understanding is that the letter of offer cannot confer an interest in land.

55. DW4 further testified that the letter of offer is dated 4th April, 2008 from the Ministry of Lands to Lawrence Kadenge Ziro and the 2nd Defendant and has never seen a title in the name of the 2nd Defendant and Lawrence Kadenge Ziro and he only saw a title in the name of Lawrence Kadenge Ziro. DW4 further stated that page 74 has a letter of consent to Lawrence Kadenge Ziro and the 2nd Defendant but there were no titles or allocation in Chembe/Kibabamsh and that one cannot seek consent before titles are issued.

56. DW4 referred to the Plaintiff’s sale agreement and that at clause 12 which stated that the completion documents were original letters of offer and the references are the same, similarly that the agreement was signed on 14th June, 2014 when there was no title which either party could produce as completion documents. DW4 referred to pages 31 to 33 of the Plaintiff’s list of documents and testified that the letter of offer does not mature to a title to give interest in land and that there is no mention of loss of the original letter of offer.

57. DW4 referred to pages 197 to 206 and testified that a replying affidavit by the then Land Registrar, Nyakundi and referred to paragraph 5 where he stated that the land was registered in the name of Lawrence Kadenge Ziro as there was a letter of offer in his name, further that there was no indication that a letter of offer was granted to Lawrence Kadenge Ziro and the 2nd Defendant.

58. It was DW4’s evidence that Ksh 200,000/= was to be deducted as disbursements from the purchase price and a rates clearance certificate by the Municipal Council of Malindi dated 4th November, 2014 and that a title deed in the Plaintiff’s name dated 3rd October, 2014, and a clearance certificate was issued five days after the issuance of title as required by law.

59. DW4 testified that he paid stamp duty of Ksh 800, 150/= and got a confirmation from Kenya Commercial Bank Kilifi Branch that the amount was remitted to Kenya Revenue Authority, produced the extract of the Bank statement, a certified copy of the transaction slip annexed to the affidavit dated 13th December, 2022 as DEX No 7.

60. DW4 referred to page 63, a discharge of charge and transfer dated 30th October, 2014 and recorded for registration on 31st October, 2014 and testified that it is certified by one Esther Ogega and this is an anomaly as discharge of charges are signed by Permanent Secretaries.

61. DW4 referred to page 65, a letter from Malindi addressed to Registrar Kilifi County dated 31st October, 2014 and signed by a person referred to as Kamau on the same day and stated that a transfer of land in a Settlement Scheme dated 30th October, 2014 to the Plaintiff could never have been to a limited liability company. He testified that there is no evidence of recall of Lawrence Kadenge’s letter of offer or title deed and that the land was not available for allotment.

62. DW4 referred to pages 121 to 140 which is a report of a special taskforce on Kilifi Jimba and Chembe Kibabamshe Settlement Schemes dated 6th May, 2010 and stated that at page 140 plot No Chembe/Kibabamshe 356 indicated that it belongs to Kadenge Ziro family and there is no development on the plot. He stated that at page 59 which is a ground report dated 11th September, 2014 by the District Land Adjudication and Settlement officer Mr. Kamau who stated that there were two houses, mature coconut bean trees and occupation by Lawrence Kadenge Ziro and the 2nd Defendant.

63. DW4 also stated that at page 60 is a letter dated 8th June, 2015 written by the District Land Adjudication Settlement Officer (DLASO) James Kamau which indicated that the land was allocated to Lawrence Ziro Kadenge who sold the land to the Plaintiff informing the head office a year later.

64. DW4 further testified that at page 62 a report was made to the police for loss of the letter of offer on 10th September, 2014 for Chembe Kibabamshe 356 but the letter does not clarify the folio or which letter of offer hence the documents are contradictory. DW4 referred to page 63 which is a letter marked KBL 11 addressed to DLASO, a letter by Lawrence Kadenge Ziro and the 2nd Defendant confirming that they have accepted the boundaries but DW4 stated that the taskforce said that there were no developments hence the DLASO gave contradicting information.

65. DW4 testified that they have filed a counterclaim in respect of the suit land and they had conversations with the Lawrence Kadenge Ziro family who were the owners of the suit land and further that they did due diligence and confirmed that the family were the owners of the suit land. He testified that they entered into a sale agreement in his personal name and he was to buy five acres to be excised from the suit land.

66. According to DW 4 he subsequently decided to purchase the entire suit land at a consideration of Ksh 3 million per acre totaling to Ksh 15 million whereby the agreement was at 1. 5 million Kenya shillings per acre and the acreage was to be determined upon survey and later received a title upon registration. He testified that he has the original title in the name of Kadziro Beach Limited (the 4th Defendant) issued on 17th June, 2015.

67. It was DW4’s evidence that they filed a counter-claim where they prayed that the Plaintiff’s case be dismissed and the counterclaim be allowed as prayed with costs, and further that he is in possession of the suit land.

68. Upon cross-examination by Mr. Shujaa counsel for the 2nd Defendant, and stated that the first agreement is dated 8th January, 2014 and the second one 14th January, 2014 and that the company was incorporated on 28th August, 2014 further that at the time he was buying the land, the company did not exist. He stated that the agreement was in his personal name, did due diligence and confirmed that the land was registered in the name of Lawrence Kadenge Ziro who had a letter of offer, a copy of the title and official receipt.

69. DW4 was referred to page 10, an extract of the register and stated that the first entry is dated 22nd December, 1986 to the government of Kenya, second entry dated 23rd August, 2001 to the 5th Defendant, third entry dated 23rd August, 2001 in the name of Lawrence Kadenge Ziro and fourth entry dated 23rd August, 2001 when the title deed was issued.

70. DW4 further stated that the agreement dated 8th January, 2014 stated that upon payment of ten percent of the purchase price, the vendor would furnish him with the original letter of confirmation from the National Land Commission lifting the embargo and consent to transact which they received from the Ministry of Lands and a letter lifting the embargo. He stated that they got a valid title for five acres and the last completion document was a signed consent from the Land Control Board but later discovered that the title had been given to the Plaintiff after 31st October, 2013.

71. It was DW4’s testimony that they raised several complaints about the land registry including writing a letter dated 23rd December, 2014 to the Chief Land Registrar to expunge records relating to the Plaintiff as they were suspicious and that they were issued with a title on 17th June, 2015. DW4 stated that he signed the transfer of land on 22nd January, 2014 and at this time the Plaintiff did not have a title to the suit property.

72. Upon cross-examination by Ms. Lutta counsel for the 5th Defendant, DW4 stated that they came and visited the site, made inquiries from the villagers and his lawyers also did due diligence.

73. Upon cross-examination by Mr. Mwadilo counsel for the Plaintiff, DW4 stated that he is an Advocate of the High Court of Kenya and that he conducted social and locational due diligence. DW4 stated that he contacted the Kadenge Ziro family who informed him that they owed money to people like Valeno Asunta which he undertook to settle and does not know about the Plaintiff. DW4 stated that he does not know whether there was a certificate of official search to confirm that Lawrence Kadenge Ziro was the registered owner of the suit land and further that he was not a party to the cases that Assunta and Valeno had against the Kadenge family. DW4 further stated that he does not know what happened to the Assunta case and the agreements were in respect of plot No 271 and 356 Chembe Kibabamshe.

74. DW4 stated that by a letter dated 11th June, 2015 addressed to Mr. Felix Nyakundi who was the Land Registrar Kilifi stated that there were three titles issued to Lawrence Kadenge Ziro and there were letters by the Registrar to cancel them. DW4 stated that the National Land Commission has no power to deal with private land and its jurisdiction is on public land and further admitted that there was a balance of the purchase price which was to be determined after survey and completion of this case, which amounts to Kshs. 22. 5Million.

75. He stated that when they discovered that there was another suit, the Kandege family demanded personal loans and not the transaction amount of which they refunded Ksh 3 million in personal loan, which they had borrowed. DW4 stated that they elected to separate business from friendship. He stated that the titles issued to Jordanvalle and Mayungu limited were cancelled.

76. Upon re-examination by Mr. Kimani, DW4 referred to the letter dated 11th June, 2015 at page 100 and stated that it was neither written to him nor to the 4th Defendant and further that it was not copied to them. DW4 referred to pages 27 to 29 and stated that the affidavits sworn on 27th August 2015 prepared by Khaminwa & Khaminwa Advocates and Mr. Patrick Shujaa Advocates have not testified in the case. Further by that date the case was already pending in court and that there was a letter from a Mr. Birundu giving instructions for the cancellation of the Plaintiff’s title.

77. DW5 Boaz Oketch a Land Registrar Kilifi county stated that he is aware of the dispute before this court in respect of Kilifi Chembe Kibabamshe 356 and testified that he has three separate records in respect of the parcel. He stated that the first green card entry No. 7 shows that it was issued to Jordanvale (K) limited and that they obtained the title vide transfer from Said Thabit Said plus an adjudication record that was allocated to Saruni Julius Mwaro. Further that the title was issued to Thabit Said and then to Jordanvale Vale (K) Limited.

78. He testified that the other green card shows that it was acquired through the 5th Defendant by one Lawrence Kadenge Ziro on 23rd August, 2001. Further that there is an entry to the 4th Defendant on 17th June 2015, but the entry was never signed. DW5 confirmed that he has a copy of the transfer from Lawrence Kadenge to the 4th Defendant and a title deed of Lawrence Kadenge Ziro issued on 23rd August, 2001. DW5 further testified that they have a copy of discharge of charge from the 5th Defendant which shows that the land was allocated to Lawrence Kadenge Ziro.

79. According to DW5 the last set of records is a green card which shows that the land was allocated to the Plaintiff on 31st October, 2014 and issued with a title deed on the same day. DW5 testified that he has a discharge of charge and transfer from the 5th Defendant to the Plaintiff which he produced as DEX No 8.

80. Upon cross-examination by SM Kimani counsel for the 1st and 4th Defendant, DW5 stated that the Land Adjudication Act applies to trust land and produced a copy of the adjudication records in the name of Saruni Julius Mwaro who was a minor. He stated that they said that there was a cancellation of Chembe Kibabamshe Adjudication Section but neither had a copy of title for Saruni Mwaro nor any evidence that the record was destroyed. DW5 stated that Saruni Julius Mwaro gave a proper power of attorney appointing Taa Baye Bulingo dated 19th January, 1994 and does not know what was destroyed in entry number three. Further that he cannot tell the initial date at entry number two.

81. DW5 stated that a power of attorney does not necessarily give one an interest in land and that when land is vested in a minor, they can only deal with the land when they reach eighteen years old. He further told the court that he was not the one who did the alterations at page one and that the parcel was transferred on 23rd August, 2001 from the 5th Defendant to Lawrence Kadenge Ziro and to the 4th Defendant on 17th June, 2015.

82. It was DW5’s evidence that a clerical officer would input the entry and take the file to the Registrar for signature and endorsement whereby the Registrar can endorse or decline with reasons. He stated that there are no reasons in the file why the signature was not endorsed. DW5 stated that he does not know whether a title was issued to the 4th Defendant as that would have been a mistake and further that the transfer was assessed but there is no Land Registrar’s stamp.

83. According to DW5, in 2015, the Registrars were Felix Nyakundi (DW1) and Joseph Bao and he is familiar with Felix Nyakundi’s signature, the stamp number in document number 76 is similar to the stamp number on the title deed but the signatures are different. He stated that the signature on the assessment is not Felix Nyakundi’s (DW1) but the amount on the assessment of duty tallies with the amount that was paid. DW5 referred to page 23 and stated that the first entry is dated 31st October, 2014 and the record showing that Sauni was the allottee is the correct record. DW5 stated that the land was available for allocation to the Plaintiff and he does not know what happened to the documents issued to Sauni Mwaro.

84. Upon cross-examination by Mr. Shujaa counsel for the 2nd Defendant, DW5 stated that entry number 5 and 6 of the green card for the 4th Defendant was not endorsed by the Registrar and the transfer document was not signed. He stated that an entry, which is not signed, cannot be valid for registration.

85. Upon cross-examination by Mr. Mwadilo counsel for the Plaintiff, DW5 stated that he has been a Registrar since 2015 and in Kilifi since 2019 and that Kilifi Jumba and Kilifi Kibabamshe schemes have different numbers. He stated that there is a transfer by Sauni Mwaro to Said Thabit Said on 19th July, 1996 but the title to Said Thabit was cancelled when the transfer was effected to Jordan Vale Limited.

86. It was DW’s testimony that they have a copy of the title to Jordan Vale but he neither knows that a transfer to Jordan Vale was revoked nor that Jordan Vale sued the government for cancelling the title. He further testified that the gazette notice that revoked the adjudication was in 1986 and that the search shows that the Plaintiff was the registered owner as of 31st October, 2014.

87. DW6 Purity Wanjiru Mwangi a Deputy Director at the Land Adjudication and Settlement office at Ardhi House, Nairobi adopted her witness statement dated 25th January 2023 as her evidence and stated that there is a typographical error at page 3 where payment of land charges by Lawrence Kadenge Ziro and the 2nd defendant is indicated as Ksh 155, 120/= but it should be Ksh 55,920/=.

88. DW6 testified that the owner of the property is the Plaintiff by virtue of having bought it from the original allotees. DW6 explained that an original allottee applies for a Land Control Board consent to transfer land after a sale agreement and upon consent being issued, they appear before their officers at the county level and sign a form which is witnessed by their officer at the local level and a transfer is recommended. Further that the same is sent to the headquarters to effect the transfer and they are sent together with the original letter of offer, the identity cards of both parties, a proof of payment of stamp duty and a letter of consent, and that is what is used to identify and document the owners.

89. She stated that after the transfer has been done, they issue a statement of full payment of any loans or card charges that may be owed on the parcel, if there is no pending payment, it is cleared vide a clearance form which shows that the amounts were received and cleared by the accountant at the accounts department.

90. DW6 also testified that all the documents go to the Estate Manager in the Legal department to ascertain whether there is a successful transfer whereby the Assistant Director signs together with the final signature by the Director of Land and Adjudication and Settlement on the discharge of charge and transfer is done to the eligible person.

91. DW6 testified that the clearance date was 28th April, 2014 in the name of Lawrence Kadenge Ziro and the 2nd Defendant and that the legal office changed it to the Plaintiff as required by the procedure of transfer. DW6 further stated that the Director appended his signature on 13th October, 2014 allowing the discharge of the property to the owner and produced a bundle of documents dated 13th August 2019 as DExh No 9.

92. Upon cross-examination by Mr. Kimani counsel for the 1st and 4th Defendants, DW6 stated that she joined the service in 1989 as a Settlement Officer and that the settlements were for individuals and squatters. She stated that Chembe/Kibabamshe Scheme started in 1979 and she did not come with the original Land Adjudication record and register. DW6 stated that a different process was used by Chembe Kibabamshe and that they do not apply CAP 284 Land Adjudication Act in a settlement scheme. DW6 stated that proof of payment of stamp duty, payment receipt to the Bank, identity cards of the buyer and seller and original letter of offer accompany form E and confirmed that she has the certified copy of transfer, proof of payment of stamp duty dated 26th September, 2014 and the original letter of consent which was issued on 11th September, 2014.

93. It was DW6’s evidence that the original letter of offer was not availed as there was an affidavit of loss, a police abstract for the loss dated 10th September, 2014. Further that the letter was not available on 5th September, 2014 at the county level but she can vouch for the documents as they have a parcel file.

94. According to DW6, there are two types of transfers; one is transfer of ownership to a buyer or succession at the county level which is effected at the headquarters. Further, that the land settlement filed transfers, transfers the property after all the parcels have been made i.e. change of ownership/succession the property is discharged and transferred to the current owner. She stated that she is able to identify the first transfer at page 72 of the list of documents.

95. DW6 stated that at page 66, the second transfer by the 5th Defendant to the current owner was done on 30th October, 2014 who were transferring their interest in the suit land to the Plaintiff. DW6 stated that she is not aware of a parallel letter to Lawrence Kadenge Ziro but that there was a taskforce of Chembe Kibabamshe Kilifi formed due to existence of double or multiple titles.

96. Upon cross-examination by Mr. Mwadilo counsel for the Plaintiff, DW6 stated that in a settlement program, each scheme is given a special code and Chembe Kibabamshe is scheme number 764 Kilifi and Jimba is code No 763. She stated that the receipt applies to Kilifi Jimba paid by Lawrence Kadenge Ziro plot No 356 Kilifi and that the letter of offer to Lawrence Kadenge Ziro did not emanate from their office and that she was only aware of the letter of offer to Lawrence Kadenge Ziro and the 2nd Defendant. She further stated that at the county level, the officer is just to witness that there is a transfer but not to transfer as the same is done at the headquarters.

97. Ms. Lutta closed the 5th and 6th Defendants’ cases and Mr. Shujaa did not call any witnesses for the 2nd defendant therefore the case was closed.

Plaintiff’s Submissions 98. Counsel for the Plaintiff filed submissions dated 2nd May 2024 and relied on Section 112 and 116 of the Evidence Act and the cases of Dina Management Limited vs County Government of Mombasa & 5 others [2022] eKLR and Munyu Maina vs Hiram Gathiha Maina [2013] eKLR. Counsel submitted that 1st Defendant and 4th Defendant’s titles were fake of which both parties were aware of.

99. Counsel submitted that it was the Plaintiff’s evidence that the 1st and 2nd defendants transferred their interest in the suit parcel to him as per the sale agreement between them where he settled the outstanding loan and relied on the case of Hubert L. Martin & 2 others vs Margaret Kamar & 5 others [2016] eKLR.

100. Counsel further submitted that the 4th Defendant tendered no evidence to show it carried out any due diligence, no proof of payment of any part of the purchase price indicated in the agreement of sale dated 8th January, 2014 between itself and the 1st Defendant and relied on the cases of Weston Gitonga & 10 others vs Peter Ruku Gikanga & Another [2017] eKLR, Capital Fish Kenya Limited vs The Kenya Power & Lighting Company Limited [2016] eKLR, Charles Mwirigi Miriti vs Thananga Tea Growers Sacco Ltd & Another [2014] eKLR and William Muthee Muthami vs Bank of Baroda [2014] eKLR.

101. Mr. Mwadilo counsel for the Plaintiff submitted that the 1st Defendant has no defense to the Plaintiff’s claim and that the 5th and 6th Defendants led evidence in favor of the Plaintiff hence he has made out a case against the 1st, 3rd and 4th Defendants and prays that the orders be issue as per the plaint.

102. Counsel further submitted that the Defendant knew it had defective root of title and/or could not prove root of title but still persisted to enjoin itself and thereby agitate a defence and counterclaim since 2016 and relied on Section 26 (1) of the Land Registration Act 2012 and the case of Samuel Kamere vs Land Registrar, Kajiado [2015] eKLR.

2Nd Defendant’s Submissions 103. Counsel for the 2nd Defendant filed submissions dated 14th June, 2024 and submitted that the 2nd Defendant admitted the Plaintiff’s claim and his submissions are on the legality of the two conflicting Title Deeds, one registered in favour of the Plaintiff and the other registered in favour of the 4th Defendant. Counsel submitted that the Plaintiff’s title was registered on 31st October, 2014 while that of the 4th Defendant was registered on 9th March, 2015 and relied on the case of Hubert L.Martin & 2 others vs Margaret Kamar & 5 Others [2016] eKLR (supra)

104. Mr. Shujaa further submitted that the evidence has shown that the Plaintiff’s title was acquired procedurally devoid of any illegalities, and that the process followed prior to issuance of its title complied with the law, hence the Plaintiff is entitled to the orders sought in its amended Plaint.

5Th And 6Th Defendant’s Submissions 105. Counsel for the 5th and 6th Defendants filed submissions dated 4th June, 2024 and identified the issues for determination as whether the Plaintiff is the legally registered owner of the suit property and whether the Plaintiff is entitled to the reliefs sought.

106. Counsel relied on the cases of Funzi Development Ltd & others vs County Council of Kwale, Mombasa Civil Appeal No 252 of 2005 [2014] eKLR and Petition No 8 (E010) of 2021 and submitted that in the instances where the “registered” owner did not acquire title regularly, the ownership of the suit property by the claimant thereafter could not therefore be protected under Article 40.

107. Counsel further relied on the case of Munyu Maina vs Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR and submitted that when the root of a title has been challenged, a party cannot benefit from the doctrine of bona fide purchaser and the indefeasibility of the title is quashed. Counsel submitted that it is up to the parties to prove that their title was obtained in the lawful manner as per the law as a bona fide purchaser.

108. Ms. Lutta further submitted that it is clear from the documents and affidavits presented before the court that the suit property was allocated to the 1st and 2nd Defendants, as the joint custodians of the land on behalf of the family, and as such any transaction in respect to the land had to involve both of them with the agreement of the family. Counsel relied on the cases of Fahiye & 2 others vs Omar & 4 others [201] (sic) 2KLR. 224, Milankumar Shah and 2 others vs City Council of Nairobi & Attorney General (Nairobi HCC Suit No 1024 of 2005 (05) and Champaklal Ramji Shah & 3 Anor vs AG & Anor, HCCC No 145 of 1997.

109. It was counsel’s submission that the triplicate titles that the 1st Defendant, Lawrence Kazungu had fraudulently taken out claiming to be sole proprietor of the suit property cannot be allowed by this court to have any legally binding effect and any transaction entered into relying on the same would be considered void ab initio.

110. Counsel submitted that the affidavit sworn by the 2nd Defendant clearly indicates that the 1st Defendant was a repeat offender having previously swindled others as being the sole proprietor of the property, an occurrence that had led to the sums paid to them by the Plaintiff, for the suit property in question to be used in offsetting the claims lodged against him. Further that the affidavit sworn by the 2nd Defendant further highlights that he and the 1st Defendant, with the approval of the entire family had legally transferred the suit property to the Plaintiff.

111. Ms. Lutta therefore stated that having entered into a contractual agreement with the plaintiff and any other transaction claiming to have been entered in respect to the suit property is a forgery and the same is illegal and relied on the cases of Katende vs Haridar & Company Ltd [2008] 2 E.A 173 and Samuel Kamere vs Lands Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR.

112. According to counsel, the documents presented to the court by the District Land Adjudication and Settlement Officer support the Plaintiff’s case. Further that the 4th Defendant’s case has no basis as it is hinged on an agreement they entered into with the 1st Defendant whose alleged title has clearly been obtained through fraudulent means. Counsel submitted that the 1st, 3rd and 4th Defendants have failed to prove that the titles they are relying on were acquired in the lawful manner and hence not legally binding. Further that the land in issue falls under government lands whereby the government established a Settlement which commence through process by the government.

113. Ms. Lutta stated that the role of allocation of land is vested in the Ministry of Lands through the Adjudication and Settlement Department where the land is a Settlement Scheme as in this present case. Counsel relied on the cases of Francis Musyoki Makenzi & 61 others vs Director of Land Adjudication & Settlement & 2 Others; Njiru Cimba & 65 Others & 26 Others [2020] eKLR and Gitwany Investment Limited vs Tajmal Limited & 3 others [2006] eKLR.

114. Counsel finally submitted that that once the proper allotment letter was issued, the land was not available for adjudication as it had changed tenure to private land. Hence there was no land to allocate to subsequent persons as alleged after the first allotment was issued.

Analysis And Determination 115. The issues for determination are as to whether the Plaintiff has proved its case for an order of permanent injunction against the 1st, 2nd, 4th, 5th and 6th Defendants from interfering with the suit property, whether an order of specific performance should be issued directing the 1st and 2nd Defendants to honour part of the bargain and who is the rightful owner of the suit parcel of land.

116. The Plaintiff gave evidence that it entered into a sale agreement with the 1st and 2nd Defendants on 14th June, 2014 for the sale of a parcel of land known as LR No. Chembe/ Kibambamshe/.356 at a consideration of Kshs 18,900,000/=. It is the Plaintiff’s case that it is a term of the agreement that upon execution of the sale agreement, it had to pay Ksh 5,000,000/= which it paid and was acknowledged by the 1st and 2nd Defendants. The Plaintiff further stated that they agreed that upon payment of the deposit, the Plaintiff would take possession of the suit property and further that it would retain all the documents to enable it to process title documents and all requisite fees and/or charges required to the relevant government authorities.

117. The Plaintiff further told the court that it paid all the requisite fees/charges and after complying with all the conveyancing protocols, it was registered and issued with title deed dated 31st October, 2014. It is the Plaintiff’s case that it has paid the entire purchase price of Ksh 18,900,000/= and the 1st and 2nd Defendants have breached the contract dated 14th June, 2014 by not giving vacant possession of the suit parcel, colluding with the 3rd Defendant to institute a Civil Suit No 198 of 2014 with intention to frustrate the Plaintiff and entering into a Sale agreement with third parties.

118. The 1st Defendant gave evidence as an administrator of the Estate of the late Lawrence Kadenge Ziro and was joined in the case on 3rd November 2016 and that the deceased was the sole owner of the suit land. The defendant acknowledged the 2nd defendant as his uncle but disputed that the land was jointly allocated to his father and the uncle.

119. On cross examination the 1st Defendant did not seem to have any useful information on how the allocation of the suit land was done, or the sale of the land as he was neither present when the sale took place nor was he a party to the sale. He only stated that the land was solely allocated to the late father who never stayed on the suit land. His evidence was contrary to the evidence that was tendered by the Land Registrar (DW5) and the Land Adjudication and Settlement Officer (DW6) who confirmed the process of allocation and the documents as per the file at both the Land office and Ministry of Lands Ardhi House. His evidence was therefore not useful in solving the question at hand on the ownership of the suit land and the validity or illegality of the titles.

120. The 2nd Defendant did not tender any evidence but counsel filed submission that they were in support of the plaintiff’s case as the rightful owner of the suit land hence entitled to the orders sought in the amended plaint.

121. The Plaintiff withdrew the case against the 3rd Defendant.

122. The 4th Defendant gave evidence that he entered into two sale agreements with Kadenge Ziro dated 8th January 2014 and 14th January 2014 respectively at a consideration of Kshs 3Million per acre for 5 acres but later decided to buy the whole parcel of land at Ksh 15 Million. It was his evidence that he entered into the agreement in his name but later a title was issued on 17th June 2015 in the name of Kadziro Beach Limited where he is a shareholder and a Director. He told the court that he did due diligence and confirmed that the land belonged to Lawrence Kadenge Ziro but on cross examination he stated that he did not carry out an official search to confirm ownership.

123. It is also on record that the 4th Defendant admitted that there was a balance of the purchase price of Kshs 22. 5 Million which he was supposed to pay upon survey and completion of this case. Further he gave personal loans to the Kadenge family amounting to Kshs. 3 Million which they refunded and did not demand the payment of the purchase price.

124. The 4th Defendant told the court that there was a letter from Mr. Birundi giving instructions for the cancellation of the Plaintiff’s title but did not give any evidence as to whether the same was acted upon. The 4th defendant’s case is hinged on the agreement between him and the late Lwarence Kadenge Ziro who was purportedly allocated the suit land alone but there is evidence that they were jointly allocated with the 2nd Defendant who was his brother. DW3 the administrator of the Estate of Lawrence Kadenge Ziro and a son of Kadenge Ziro confirmed that the 2nd Defendant was his uncle but denied that they were joint owners of the suit land. There was further evidence that the late Lawrence Kandege Ziro sold the suit land to other people after selling it to the Plaintiff and that is why he had been sued in other case in respect of the same suit of land.

125. This explains why the 4th defendant gave personal loans to the Kadenge family to repay the debts that they had accrued from people like Asunta which he undertook to pay. It is noted that Asunta had sued the family and the 4th Defendant stated that he was not aware about the Plaintiff. The 4th Defendant also stated that he does not know the outcomes of the Asunta case and admitted that the agreements were in respect of Chembe Kibambamshe Plot Nos 271 and 356 which is the suit land herein.

126. The Plaintiff’s, the 5th and 6th Defendants’ evidence is indicative that the letter of offer that was issued to Lawrence Kadenge Ziro and the 2nd Defendant is the genuine one. The Land Adjudication and Settlement Officer who gave evidence as DW6 confirmed this.

127. The Land Registrar who testified as DW5 also stated that there were three separate records in respect of the suit land whereby the first green card entry No. 7 shows that it was issued to Jordanvale (K) limited and that they obtained the title vide transfer from Said Thabit Said plus an adjudication record that was allocated to Saruni Julius Mwaro, a title was issued to Thabit Said then to Jordanvale Vale (K) Limited.

128. DW5 also testified that the other green card shows that it was acquired through the 5th Defendant by one Lawrence Kadenge Ziro on 23rd August, 2001, an entry to the 4th Defendant on 17th June 2015, but the entry was never signed, a copy of the transfer from Lawrence Kadenge to the 4th Defendant and a title deed of Lawrence Kadenge Ziro issued on 23rd August, 2001, a copy of discharge of charge from the 5th Defendant which shows that the land was allocated to Lawrence Kadenge Ziro.

129. It is also on record that DW5 had a set of records of a green card which shows that the land was allocated to the Plaintiff on 31st October, 2014 and issued with a title deed on the same day, a discharge of charge and transfer from the 5th Defendant to the Plaintiff which he produced as DEX No 8. Follows that DW5 also confirmed that the suit property was allocated to the 1st and 2nd Defendants as the joint custodians of the land on behalf of the family and any such transaction in respect to the land had to involve both of them with the agreement of the family.

130. DW5 explained that an entry in a green card must be signed and endorsed by a Land Registrar. The Land Registrar can either or decline but has to give reasons for not endorsing or appending signature. In the 4th Defendants case the entries were neither signed nor endorsed by the Land Registrar. The result is that any title issued from such a transaction is invalid. The Land Registrar also stated that the transfer was also not signed hence there was no valid registration.

131. The net effect is that the titles that emanated from the transaction between the 1st and 4th defendants were acquired unprocedurally hence the 1st defendant did not have a good title to pass to the 4th Defendant.

132. In the case of Hubert L. Martin & 2 Others Vs Margaret J. Kamar & 5 Others [2016] eKLR, 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. 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.”

133. In the case of Mariera & another v Ongwancho & 2 others [2023] KEELC 21423 (KLR), the court held that:“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 analysed. In all this, a judge needs to pray for God’s wisdom and guidance, for it can at times be extremely difficult to distinguish between which is the genuine title and which is the fraudulent title. Many times, some of these fraudulent schemes are extremely complex, if not watertight. What is depicted in the Land Registry may very well be what is fraudulent. If a court is not careful, the genuine owner may end up being declared the fraudster, and the crook will go laughing all the way to I don’t know where, alive to the fact that he will have deceived everyone, including the court.”

134. The Plaintiff’s bundle of the list of documents filed on 22nd March, 2019 has attached an agreement of sale dated 14th June, 2014 whereby the parties to the agreement are LAWRENCE KADENGE ZIRO, KAMBI KADENGE ZIRO who are described as the vendors while LUCAS KADENGE ZIRO, SAFARI KADENGE ZIRO, DAMA MBOGO MWANENGO and KAZUNGU KADENGE ZIRO are described as the beneficiaries. The agreement goes on to state that by virtue of a letter of offer dated 4th April, 2008 Ref: DS/C/0050 VOL 11/169, the vendors were offered by the Government of Kenya all that piece of land measuring approximately 12. 6 Acres or thereabouts known and described as Plot Number 365 in Chembe Kibabamshe Settlement Scheme in Malindi District of Kilifi County within the Republic of Kenya.

135. The agreement further stipulates that the purchaser agrees to buy the subject property whose actual measurement is 12. 6 Acres or thereabout for the sum of Ksh 1,500,000/= per acre totaling to Ksh 18,900,000/=.

136. It is also on record that the Plaintiff produced a copy of the Kenya Revenue Authority Assessment and pay in-slip being payment of stamp duty for transfer dated 26th September, 2014 assessed at Ksh 300,040/=, executed transfer between Lawrence K. Ziro And Kambi K. Ziro and the Plaintiff dated 5th September, 2014, Copy of discharge dated 30th October, 2014 and a copy of a transfer dated 30th October, 2014 duly executed by the 5th Defendant to the Plaintiff.

137. The plaintiff further informed the court of the sale agreement, the terms of the sale which was agreed at Ksh 18,900,000/ the acreage of 12. 6 acres, consent letter dated 11th September, 2014, the transfer which shows that the value of the land as Ksh 15,000,000/= dated 5th September, 2014 and the transfer registered on 31st October, 2014. The Plaintiff in its list of documents dated 30th July, 2019 has adduced a letter from the National Land Commission dated 12th January, 2017 which concluded that the Plaintiff are the legal owners of the property (Chembe/Kibabamshe/356) and should be allowed to enjoy quiet possession and freely transact on the land without any hindrance.

138. The National Land Commission confirmed the same position in its letter dated 12th January, 2017 where it stated “Further investigations revealed that one Lawrence Kadenge Ziro obtained three different titles on the same land, issued to one person on the same date and the same entry. The three Titles were issued on 23rd August, 2001, The serial numbers are: 453149, 690148 and MLS/TD/02/A2/02. ”

139. In the case of Elias Joseph Waburi Wamunyu v Joseph Mwangi Njoroge [2017] KEELC 1589 (KLR), the court held as follows:“I have made a finding on the substance of the case. However, it will be observed that I have unearthed a lot of things touching on the titles issued in this case. I rebuke in the strongest terms possible, the conduct of the land surveyors and land registrars who held fort in Nyandarua District when the plaintiff's title was prepared and the RIM was amended to accommodate the plaintiff. I need to emphasize that land officers hold a position of trust. Title abstracts and RIMs are sacred land documents. They are the pillars upon which our land administration system is founded. They are documents that should never, ever, be interfered with unless in accordance with the law. Supportive documents regarding dispositions also need to be well kept, maintained, and Protected. It is a shame that Registers and Presentation Books can be torn and become illegible and it is necessary that good storage systems need to be established for these vital documents. Records of dispositions, including transfers, mutations, charges, etc, must be properly kept in land parcel files, and they need to stay there. It is time we stopped hearing that these records are missing and indeed they cannot walk out of files on their own, if it is not for gullible land officers for hire. Land officers need to properly undertake their work. It is a duty that they owe Kenyans. Where there is doubt, or dispute, the same should be resolved in a court of law, not by Land Registrars unilaterally making insertions in the Land Registrars in favour of one party. In this instance the land officers abdicated their duty with impunity and they have now led to utmost confusion with regard to the titles held in Mawingo Scheme that have their origin in the impugned titles No.761 and 764. I need to make corrective measures. The integrity of the register and the Registry Index Map needs to be restored. I know that some persons will be affected, but I am unable to hold myself back. I would advise them to see how they can be assisted administratively, and see how they can fit themselves in the orders that I now make.”

140. The 4th Defendant (DW)4 told the court that he was yet to pay the balance of the purchase price pending survey and ascertainment of the acreage and the outcome of the case. DW4 stated that he bought the whole parcel of land which was ascertainable as 12. 6 acres. What stopped them from carrying out the survey to ascertain the acreage yet the 4th defendant already obtained a title to the suit land. How could a title be issued without a survey to ascertain the acreage to be indicated on the property section? This makes the transaction suspicious.

141. The plaintiff in the amended plaint sought for a permanent injunction against the defendants from interfering with the suit land and an order for specific performance against the 1st and 2nd defendants to fulfil their part of the bargain.

142. In the case of the case of Reliable Electrical Engineers Ltd. V Mantrac Kenya Limited (2006) eKLR, the court stated that: -“Specific performance like any other equitable remedy is discretionary and the Court will only grant it on well principles”“The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages an adequate remedy specific performance may still be refused on the ground of undue influenced or where it will cause severe hardship to the defendant.”

143. I find that the plaintiff has proved its case against the defendants and is therefore entitled to the orders sought. The contract between the plaintiff and the Vendors was valid and does not suffer from any defect or illegality. The court therefore grants the following specific orders:a.An Order of Permanent Injunction is hereby issued restraining the 1st, 2nd, 4th, 5th and 6th Defendants, their agents, servants, employee and/or any other person acting on their behalf from selling, alienating, trespassing and/or obstructing the Plaintiff from taking vacant possession of the suit property and/or interfering in any manner whatsoever with the suit property.b.An Order of Specific Performance is hereby issued directing the 1st and 2nd Defendants to honour their part of the bargain.c.The 4th Defendant’s counterclaim is hereby dismissed with costs to the plaintiff.d.Costs of the suit to be paid by the 1st and 4th defendants.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 16THDAY OF JANUARY 2025. M. A. ODENYJUDGE