https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3150

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KWALE** **ELC CASE NO. 135 OF 2021** **FORMERLY MOMBASA ELC NO. 232 OF 2017** **DR. ANGELIKA FREY** …………………...…………………………**PLAINTIFF** **VERSUS** **LUCY THEGEYA** …………………………...………………… **1ST DEFENDANT** **LAND REGISTRAR, KWALE** ………...………………………. **2ND DEFENDANT** **HON. ATTORNEY GENERAL** ……………………………. **3RD DEFENDANT** **AND** **THEEVAN ENTERPRISES LIMITED** …………………….…**INTERESTED PARTY** **JUDGEMENT** 1. This suit was commenced by way of Plaint which was subsequently amended on 23rd June, 2017 filed at the Environment and Land Court at Mombasa. The Suit was later transferred to this Court and Amended on 26th May, 2023. The Plaintiff seeks the following reliefs: - 2. A permanent injunction restraining the 1st Defendant acting by herself or her agents, servants and or employees from encroaching into, trespassing, alienating, occupying, selling, erecting buildings and/or other structures, or in any way dealing with or interfering with LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385, at Diani, Kwale County. 3. A declaration that the Plaintiff is the absolute owner of land known as LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385, through right of survivorship (or *jus accrescendi*). 4. An order directing the 2nd Defendant to revoke the Title Certificates in respect to LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385 and issue them in the name of the Plaintiff. 5. Costs of the suit and interest. 6. It is the Plaintiff’s case that she and the late Evan Kuria Thegeya purchased LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385 (the suit properties herein) from Ocean Estates Limited in the year 1995 (sic 1985). That they were registered as joint owners of the suit properties, even though the Plaintiff solely paid for the land in full, and the titles were left in the custody of Evan Kuria Thegeya. The Plaintiff averred that she discovered in 2012 that Evan Kuria Thegeya had died. 7. The Plaintiff averred that she did a search on 9th June, 2017 which revealed that she and Evan Kuria Thegeya were still registered as joint owners. That the 1st Defendant is now claiming half share of the property, despite the fact that the land now belonged to her pursuant to the right of survivorship as had been agreed with the deceased. She further averred that when they acquired the property, Evan Kuria Thegeya was not married thus the 1st Defendant’s claim is misinformed and she is not entitled to any share. 8. That on 21st June, 2017 the Plaintiff discovered that the 1st and 2nd Defendant had colluded to have the suit properties transferred in her name and the 1st Defendant’s name, and the titles released to the 1st Defendant. The Plaintiff claims that the transfer based on the grant of probate as alleged by the 2nd Defendant is null and void for reason that the suit properties were jointly owned and passed to the surviving owner. Further, that the grant had not been confirmed and no distribution had been done. She also claimed that there is no transfer or grant of probate making the Plaintiff and the 1st Defendant as joint owners. 9. The Plaintiff pleaded the particulars of illegality on the part of the Defendants jointly at paragraph 19 claiming that she had suffered loss and damage arising out of the Defendants’ unlawful acts. The Plaintiff averred that the Interested Party’s claim on the suit land has no basis and is an afterthought as no claim lies on its behalf in the present suit. Further that the Interested Party’s claim is malicious and only aimed at complicating the issues herein and to delay the suit. **1ST DEFENDANT DEFENCE & COUNTERCLAIM** 1. The 1st Defendant entered appearance and filed her Statement of Defence dated the 10th July, 2017 challenging the Plaintiff’s identity stating she could not plead or purport to institute the suit. She admitted without prejudice that the Plaintiff and the deceased were joint owners of the suit land in equal shares. That the Plaintiff paid nothing for the land as the entire purchase price was paid by the Interested Party, a company that is owned by the deceased’s brother and his wife. She denied having any discussion with the Plaintiff regarding the suit properties. 2. The 1st Defendant denied colluding with the 2nd Defendant to transfer the land to her name and the Plaintiff, and the alleged release of the title documents. She contended that the Plaintiff had distorted or misunderstood the law, and that the contents of the Plaint are false and meant to mislead the court. She denied the particulars of illegality and the loss purportedly suffered by the Plaintiff, and urged that the Plaintiff had no cause of action against her. 3. The 1st Defendant included a counterclaim, where she alleged that the Plaintiff is a fraudster and an imposter who was impersonating Dr. Angelika Frey with the intention of depriving them their property. She averred that the suit property was transferred to the Plaintiff and the deceased on 28th October, 1985 in equal shares. That as the administrator of the estate of Evan Kuria Thegeya, she is entitled to be registered as an equal owner of the property alongside Dr. Angelika Frey. 4. The 1st Defendant sought the following reliefs in her Counterclaim: - 5. A declaration that the Plaintiff is a fraudster and the suit property that is LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385 is owned by the late Evan Kuria Thegeya and Dr. Angelika Frey in equal shares. 6. THAT the restriction registered against LR Nos. 376, 380, 381, 384 and 385 on 21st June, 2017 be removed forthwith. 7. Costs of this suit. **PLAINTIFFS DEFENCE TO COUNTERCLAIM** 1. In response the Plaintiff filed a Defence to the Counterclaim, where she reiterated the contents of the Plaint. The Plaintiff denied the allegation that she was a fraudster and/or an imposter and confirmed that she is the Plaintiff named in the suit, who was fighting for her ownership rights to the suit property. She asserted that the suit property was never owned in equal shares, and that on the death of one partner, the principle of survivorship applies. The Plaintiff prayed for dismissal of the Counterclaim with costs. **THE 2ND & 3RD DEFENDANTS DEFENCE** 1. The 2nd and 3rd Defendants filed a joint Defence dated 24th August, 2022 where they denied each and every allegation contained in the Plaint. The 2nd and 3rd Defendants denied the particulars of illegality pleaded in the Plaint. The 2nd and 3rd Respondent averred that the reliefs sought by the Plaintiff are neither available nor merited. The 2nd and 3rd Defendants prayed that the Plaintiff’s suit be dismissed with costs. **THE INTERESTED PARTY’S DEFENCE & COUNTERCLAIM** 1. The Interested Party filed a Statement of Defence and Counterclaim dated 19th June, 2023 denying the averments in the Plaint. The Interested party claims that it contributed towards the purchase of the suit property. That the land was jointly acquired in equal shares, thus it had interest in the suit properties. The Interested Party averred that the 1st Defendant is entitled to half share that was held by her husband, as is the Interested Party owing to its contribution. The Interested Party denied the alleged collusion and the particulars of illegality pleaded by the Plaintiff. 2. In its Counterclaim, the Interested Party claimed that the joint registration of the land in the name of the Plaintiff and Evan Kuria Thegeya was done in unclear circumstances. The Interested Party claimed that it contributed the entire purchase price to buy the suit land as agreed between its majority shareholder and his brother, the late Evan Kuria Thegeya. That the Interested Party ensured that land rates were paid through its sister company, Fintel Limited. 3. The Interested Party accused the Plaintiff of wanting to take away the properties yet she paid nothing for them and has never maintained or safeguarded them. The Interested Party further averred that the land had been fraudulently transferred from the Plaintiff and the deceased’s names to other persons through the Plaintiff’s advocates. The Interested Party claims that the Plaintiff had no interest in the suit land but was only jolted when the same was recovered from fraudsters. 4. The Interested Party sought the following orders in the Counterclaim: - 5. A declaration that the Interested Party is the owner of the suit property. 6. A permanent injunction stopping the Plaintiff from any interference in ownership of the suit land. 7. Costs of the suit. **HEARING AND EVIDENCE OF THE PARTIES** **THE PLAINTIFF’S CASE** 1. Dr. Angelika Barbara Frey testified in support of her case as PW1. The Plaintiff identified herself through two passports that she presented in court, being Passport no. CH1HZ4687, which expired in 2024; and her current Passport no. CH1H73M47. She testified that she is a dentist residing in Munich, Germany, and the Plaintiff in this case. PW1 adopted her witness statement as her evidence-in-chief. She produced the documents in her list of documents dated 23.06.2017 as PEXb1(a)-(e), PEXb 2(a)-(e) and PEXb3. The documents in the Plaintiff’s Supplementary List of Documents dated 27.02.2018 as PEXb4, PEXb5, PEXb6 (a)-(e), PEXb7 (a)-(e), PEXb8, PEXb9 (a)-(c), PEXb10 and PEXb11. PW1 further produced the documents in her Supplementary List of Documents dated 23.10.2023 as PEXb12 and PEXb13. 2. PW1 testified that PEXb3 was a transfer over the suit property from Ocean Estates Ltd to the Plaintiff and the late Evan Kuria Thegeya both living in Germany. That they paid 30,000 Deutsche Marks, which was equivalent to KShs. 495,000/-. She testified that the Transferees held the land as joint proprietors in equal shares. That she conducted a search in June, 2017 and found that the land was registered in her name and that of the deceased. That she was summoned by the Land Registrar and asked to discuss with the 1st Defendant, who was the wife of the deceased, about possession of the land, but they could not agree. She testified that she was claiming the land since they were registered as joint owners and she was the surviving owner. 3. PW1 asserted that she was the right Plaintiff and explained that the 1st Defendant had not challenged her identity when they met the first time before the Land Registrar. PW1 testified that when the talks did not yield, she found out the next day that the records at the registry reflected the 1st Defendant’s name. PW1 testified that the 1st Defendant had purportedly used succession documents to transfer the land to her name, however, the will relied on did not mention the suit parcels. PW1 denied signing any documents at the Land Registry to insert the 1st Defendant’s name in the registers of the parcels. She denied the claim that the Interested Party made any payments. PW1 testified that the source of the money was through a guarantee in her own name. She asked the court to strike the 1st Defendant’s name from the register. 4. Upon Cross examination by Mr. Githongo PW1 testified that she held the property in equal shares with the deceased, but that if one of them died, the other would get everything. PW1 stated that she is the one who paid for the land through a bank guarantee dated 04.10.1985 issued by her bank. She however had no document showing that she transferred the money to the deceased, or that the deceased transferred the money to the Interested Party. She however admitted that the Interested Party Company belonged to the deceased’s brother. Further that the Interested Party was involved in the transaction by paying for the land in her and the deceased’s name upon their request since they lived in Germany. PW1 testified that she never paid any rates to the government of Kenya as the deceased was to take care of the same. 5. PW1 testified that she was informed around 2012 that the land had been stolen, but she was busy and could not find time to come to Kenya until 2017. She learnt from the 1st Defendant that her name and that of the deceased were later reinstated in the register through her efforts. She clarified that Evan Kuria Thegeya died in 2011. She did not know if the property was fenced. PW1 was referred to the deceased’s will, and she noted that it bequeathed all his movable and immovable property. 6. Cross-examined by Mr. Gitonga PW1 testified that she and the deceased agreed to do a joint venture where she was to buy the land. She admitted that she met the Interested Party’s director Hillary, and that the Company paid the money for her and Evan which she later gave 130,000 Deutsche Marks to the deceased. That however, there is nothing to show that she had refunded the money to the Company. 7. PW1 was cross-examined by Mrs. Waswa and testified that she never saw or asked for the title because she trusted the deceased. That she only had the Transfer of Lease and it stated that the property was owned jointly, thus the title ought to read the same. She testified that her claim against the Land registrar is that he removed Evan’s name and replaced it with the 1st Defendants. She admitted that her name had not been omitted from the register. She explained that although she doesn’t occupy the land, she had constructed a small house in 2017. 8. The witness clarified in re-examination that she never received any demands by the Government of Kenya or County to pay rates. Further, that she had seen no documents from the 1st Defendant showing that they paid rates. That the Bank Guarantee was addressed to the Interested Party. That they only had instructions to transfer the money and they used their money because of the guarantee. 9. PW2 was Anne Reidhammer, a resident of Diani Estate. She adopted her witness statement dated 27th August, 2018 as her evidence-in-chief. PW2 testified that save for bee hives on the land, no one lived there. She confirmed that she was authorised by the Plaintiff to do the bee farming on the land. She also clarified that the suit land comprises of 5 parcels totalling to 2½ Hectares. She testified that the land is currently not fenced as the fence she had put up was vandalised. 10. Upon cross-examination by Mrs. Waswa PW2 testified that she was shown the suit properties by the Plaintiff, who also told her that it was jointly owned, but she never met the other owner. She testified that the suit properties are adjacent to her property. That all the while the suit properties have remained vacant to date. She testified that the Plaintiff put up a structure on the land but it is no longer there and she could not tell who demolished it. She denied telling the Plaintiff that the property had been interfered with. With respect to registration, her evidence was that she was not aware of any changes in the property between 1996 and 2017 at the Land Registry. 11. PW2 confirmed that she was summoned by the Land Registrar, one Mr. Njoroge, by phone call to visit the Land Registry on 20.06.2017 with the Plaintiff. That they were introduced to the 1st Defendant and asked to discuss with her about the land. She denied that they were pressuring the Land Registrar to issue title in the name of the Plaintiff. PW2 testified that she had been informed by her husband that the Plaintiff’s co-owner had died, and she first came to know about Evan in 2017 from the Plaintiff. PW2 testified that she had no interest in the suit properties except that she had been allowed by the Plaintiff to do bee keeping. She testified that the Plaintiff remains the owner of the land as the other owner died. 12. On further cross-examination by Mrs. Waswa, told the court that the purpose of the visit of 13.06.2017 was to check if the land was still intact, and they confirmed it was still in the name of the Plaintiff and Evan Thegeya. They however did not see the record and she could not tell what it indicated as at that date. She admitted that she had never seen the Plaintiff’s title. 13. On cross-examination by Mr. Gitonga, PW2 reiterated that the owner of the land is the Plaintiff and the deceased as was confirmed by the search of 13.06.2017. PW2 also reiterated that the Plaintiff allowed her to do bee keeping in 1996. 14. When PW2 was re-examined, she testified that she never knew Evan Thegeya. That she did not doubt the Plaintiff’s ownership despite not seeing the title. She testified that she was not present when the Plaintiff and the deceased were buying the land. Further, that the Land Registrar never told her that he was trying to enforce the business of the parties. **THE 1ST DEFENDANT’S CASE** 1. Lucy Thegeya, the 1st Defendant, testified as DW1. She adopted her Statement of Defence dated 20.02.2017 and witness statement of the same date, as well as supplementary witness statement dated 06.06.2022 as her evidence. DW1 produced the documents in her list of documents dated 02.02.2022 as DEXb1-13. She testified that she was the widow of Evan Thegeye and executor of his will per the grant of probate issued on 29.01.2014. DW1 testified that she came to know of the property in 1995 when they got married, and admitted that the land was jointly owned by the Plaintiff and the deceased. 2. DW1 testified that she visited the land in 2014 and found bee hives on two of the plots and that there was a lot of dumping. That they later engaged someone to look after the property and would occasionally visit it. DW1 detailed how she had managed to have the 5 titles restored to the Plaintiff and deceased’s name after it had been fraudulently transferred to third parties. DW1 admitted that she went to Kwale Land Registry on 20.06.2017 and submitted the Grant to process the succession. That on the said date, the Land Registrar introduced her to the Plaintiff and asked them to discuss and report back, but they could not agree. 3. DW1 testified that despite the Plaintiff’s objections, the Registrar proceeded to register the land in her and the Plaintiff’s name and the titles were released to her. DW1 states that she reached out to foreign affairs to identify Dr. Angelika Frey so that she could transfer her 50% share of the land to her. That she was asked to get a judicial request, however, her application was dismissed. DW1 affirmed that she had no intention to deny the Plaintiff her 50% share, but she wanted the real Dr. Angelika Frey to come and claim her title. She confirmed that the lady she met at the Land registry, is the same one who had come to court, but she still could not confirm that she was the real Dr. Angelika Frey. 4. DW1 asserted that there was no structure on the property apart from the bee hives. DW1 confirmed that she was interested in 50% share and the removal of the restriction so she can divide the land with the real Angelika. She confirmed that Hilary Maina Thegeye was her late husband’s elder brother, and the main shareholder of the Interested Party Company alongside his wife, but the deceased also held shares. She stated that the Plaintiff paid nothing on the land and had no dealings with the land. 5. On cross-examination by Mr. Mugikoyo, DW1 testified that the Deceased’s will bequeathed to her all the movable and immovable assets, but did not list them. That the schedule of the Certificate of Confirmation of Grant states that the property was distributed per the will. She refuted the claim that the property was held jointly. DW1 was referred to the green card of the suit properties and confirmed that the properties were registered to the Plaintiff and the deceased and that the words ‘equal share’ did not appear thereon. She admitted that she was not present in 1985 when the properties were purchased. 6. DW1 further testified that she became a director and shareholder of the Interested Party in 2014 after she obtained the grant. DW1 conceded that the DCI file relating to the investigation of the alleged fraud was not before court to confirm her allegations. The witness insisted that the Plaintiff herein is not the real Dr. Angelika Frey. DW1 testified that she filed the necessary documents alongside the Certificate of Confirmation of Grant and paid stamp duty in respect of the transfer in her favour, and was issued with the titles. 7. DW1 was then re-examined and she clarified that the green card shows that the property is owned in equal shares. She explained that she derived the equal ownership from the transfer document. She reiterated that her interest in the land was for her husband’s portion. She further testified that the Plaintiff was entitled to 50% of the property. **THE INTERESTED PARTY’S CASE** 1. Hillary Maina Thegeye testified on behalf of the Interested Party as DW2. He testified that he was a director of both the Interested Party and Fintel Ltd. He told the court that the Plaintiff was a former girlfriend of his brother while the 1st Defendant was his widow. That the Interested Party paid for the suit properties through a banker’s cheque to Inamdar Bowyer on instructions from his brother. DW2 testified that he met the Plaintiff when she visited Nairobi with his brother. 2. DW2 explained that the Interested Party played no further role after making the payment, but Fintel paid rates for the land. He clarified that the deceased was also a director of both companies. He testified that he was only instructed to pay but did not know the idea behind the purchase and neither followed up on the property as it was his brother’s responsibility. DW2 confirmed that the land was registered in the names of the Plaintiff and the deceased in equal share. He asserted that the funds were never refunded. 3. Upon cross-examination by Mr. Kimani DW2 testified that he paid for the land and denied any purported guarantee from the Plaintiff’s bank in Germany. DW2 confirmed that the Plaintiff who testified in court is the same Angelika he met when she came to Kenya with the deceased. DW2 reiterated that the property is jointly owned by the Plaintiff and the deceased vide a transfer dated 1985. 4. On cross-examination by Mr. Mogikoyo, DW2 testified that he had not produced anything to show that the Interested Party and Fintel Ltd were sister companies. He conceded he never witnessed the purchase of the suit properties. DW2 clarified that his brother paid the rates. DW2 testified that the properties were bought by the Plaintiff and the deceased, but they did not pay for it. 5. DW2 was then re-examined and he testified that the Interested Party paid the initial payment of KShs. 445,000/- vide banker’s cheque number 257675. He reiterated that he was asked by his brother to pay. **THE 2ND AND 3RD DEFENDANT’S CASE** 1. DW3 was Susan Mueni, Land registrar in Kwale and testified on behalf of the 2nd and 3rd Defendants. With regard to plot no. 376, DW3 testified that it was allocated to Ocean Estates Ltd but later transferred to the Plaintiff and Dr. Angelika Frey on 31.08.1985. Further, that the said plot was on 08.09.2005 transferred to the deceased as the sole proprietor. DW3 testified that after the fraudulent entries were cancelled pursuant to the investigations by the DCI, even the entry made solely in favour of the deceased was cancelled and the land reverted back to the Plaintiff and the deceased. She testified that on 20.06.2017, the deceased’s name on the title was replaced with that of the 1st Defendant and a Certificate of Lease issued. Further, that on 21.06.2017 a restriction was placed in favour of Dr. Frey. 2. DW3 testified that the other parcels also had the same history as Plot No. 376 as outlined above. DW3 testified that although a transfer was done to the deceased as sole owner, she did not have the transfer to Evan Thegeya in the file. That the only documents she had to support the transfer was the title deed in favour of the deceased and Dr. Frey that was surrendered for cancellation upon the transfer. DW3 testified that the title is silent on whether the property was owned jointly or in common. DW3 explained that in such a case, they are guided by Section 91(2) of the Land Registration Act, 2012, to the effect that the property would be presumed to be owned in common in equal share. She further explained that if it is husband and wife, the presumption is that it is jointly owned. 3. DW3 testified that in the present case, the Plaintiff and the deceased should be presumed to be tenants-in-common, in equal share. She further testified that the Plaintiff did not consent to the transfer to the deceased as sole owner, and she contended that this irregularity was the reason why the Registrar reverted the property after investigations. 4. On cross examination by Mr. Mogikoyo and with regards to the missing transfer to the Deceased, she testified that if a document is not in the file, it is either misplaced or it was tampered with. She could not tell who made the transfer or whether it was genuine or not. DW3 explained that the transfer dated 28.10.1985 was the document used to make entries 3 & 4 of the green card and issue the Certificate of Lease to the Plaintiff and the deceased. On being referred to the Transfer DW3 admitted that the words proprietors in common had been crossed out leaving joint proprietors standing. 5. DW3 testified that the instrument of transfer is the one that confirms the nature of co-tenancy. DW3 further conceded that there is no booking form for the transfer to the late Evan Thegeye as is required under the law. DW3 testified that the entry regarding the restriction was not signed, which means that the restriction was not registered. DW3 testified that Section 79 allows a Land Registrar to cancel a title where fraud is shown. DW3 was referred to the will and she testified that none of the suit parcels is mentioned therein. 6. On cross-examination by Mr. Kimani, DW3 testified that pursuant to the investigations by the DCI, the Registrar was justified to cancel entry nos. 5-10 of the green cards. DW3 reiterated that the transfer to the Plaintiff and the deceased showed that the land was held jointly in equal shares, however, the Certificate of Lease did not show the shareholding. She told the court that the transfer to the 1st Defendant was pursuant to the grant, and currently, the land is owned by the Plaintiff and the 1st Defendant as tenants-in-common in equal shares. 7. The witness further testified that the Transfer of Lease to the Plaintiff and the deceased shows joint ownership and equal shares. She reiterated that the land is currently owned by the Plaintiff and the 1st Defendant, but the title is silent on how the land is owned. She testified that in this case, she reverted to the presumption of common ownership. 8. DW3 was re-examined by Mrs. Waswa and by consent, she was allowed to produce the documents in her paginated bundle as DW3 Exhibit 1-13. **SUBMISSIONS OF THE PARTIES** 1. After the close of the Interested Party’s case, the court directed the parties to file their final written submissions. The parties complied; the Plaintiff filed her submissions dated 13th January, 2025. The 1st Defendant also filed submissions in support of her case, but they are undated. The Interested Party filed its final submissions dated 8th April, 2025. The state Counsel did not file Submissions. **THE PLAINTIFFS’ SUBMISSIONS** 1. The plaintiff identified the following four issues for determination; - 2. Who between the Plaintiff, Dr. Angelika Frey and the late Evan? Kuria Thegeya, and the Interested Party Theevan Enterprises Ltd purchased the suit Properties; - 1. Whether the Plaintiff in Court Dr. Angelika Frey is a fraudster and an Imposter who is impersonating the real Dr. Angelika Frey with the sole intention of depriving the real Dr. Angelika and the 1st Defendant their property. 1. Whether the co ownership of the suit Properties by the Plaintiff, Dr. Angelika Frey and the late Kuria Thegeya was joint proprietorship or ownership in common. 1. Whether in the circumstances of this case, the Properties in dispute form Part of the late Evan Kuria Thegeya's Estate to be shared by his beneficiaries either through the Will or Intestate Succession. 1. Reviewing the exhibits produced by the Interested Party it is submitted there is no iota of evidence to show that the Interested Party contributed to the purchase of the 5 parcels of land. That DW2, did not produce any single document signed by Ocean Estate Ltd and Theevan Enterprises Ltd to support its stake in the 5 parcels of land. None of the 4 documents exhibits produced support of the Interested party's claim of having paid for the 5 parcels of land. 2. That the Interested Party has not satisfied the requirements of Section 107 (1) of the Evidence Act and Section 3(3) of the Law of contract Act. The Interested Party has therefore not proved on a balance of probability that it purchased the 5 parcels of land. The court is invited to dismiss the Interested Party's defence and counterclaim with costs to the Plaintiff. 3. On the other hand it is submitted that the Plaintiff had discharged the said burden of proof and the provisions of the Law of Contract by producing Transfer of Lease Form dated 28.10.1985 showing that it is PW1 and the late Evan Thegeya who purchased the 5 parcels of land from Ocean Estate Ltd and whose authenticity was not disputed by the 1st, 2nd and 3rd Defendant nor the Interested Party and was therefore a credible evidentiary document. 4. That the allegations that the Plaintiff was a fraudster, an impostor or not the genuine Dr. Angelika Frey were demolished by DW2 who testified that the Plaintiff who appeared in Court is the same person whom his late brother introduced to him as a friend in 1985 after having visited Kenya together in 1984. 5. As to whether the proprietorship is joint proprietorship or ownership in common it is submitted that the answer lies in the intention of the parties as borne by the Transfer of Lease dated 28.10.1985 signed by the seller and buyers and attested to by an independent witness and which is a legal instrument within the meaning of Sections 2 of both the Repealed Registered Land Act, Cap 300 and The Registration of Land Act NO. 3 of 2012. It is submitted that the Transfer document complies with the Provisions of the law and cannot be impugned or impeached. That none of the three Defendants and the Interested Party faulted the Transfer of the suit properties from Ocean Estate Ltd to the Plaintiff. and the late Evan Kuria Thegeya. 6. Discussing the provisions of sections 101 (1) of the Repealed Registered Land Act Cap 300, Laws of Kenya and Section 91(3) (a) & (b); 102(1) ,103(1) of the repealed RLA ;91(4) and 91(5) of the Registration of Land Act 2012 it is submitted that the provisions clearly distinguish joint Tenancy from Tenancy in common. The two are different. In a tenancy in common, the tenants hold the property in equal undivided shares. Each tenant has a district share in the property which has not yet been divided among the co - tenants. In other words, the co - tenants have separate interests only that it remains undivided and they hold the interest together. As opposed to joint tenancy, the share of one tenant in the tenancy in common is not affected by the death of one of the co - owners. The share of the deceased co - owner does not devolve to the other co - owner but to the Estate of the deceased co - owner. 7. It is submitted the phrase Equal Shares on the Transfer of Lease dated 28.10.1985 does not legally affect the joint proprietorship between the Plaintiff and the late Evan Kuria Thegeya and the 1st Defendant's reliance on it to stake beneficial claim on the suit properties is therefore not available to her. 8. Further that the suit properties were jointly owned by the Plaintiff and the late Evan Kuria Thegeya and hence their ownership should automatically pass to the Plaintiff. Reliance was placed in the holding in Diana ***Muchiri -Vs- Lydia Wariara Njenga Another (2022) eKLR***. 9. It is submitted that the removal of the name of the late Evan Kuria Thegeya which was replaced with that of the 1st Defendant through an alleged grant of probate is null and void as the suit properties are jointly owned by her and the late Evan Kuria Thegeya and hence does not need to go through the process of Succession as her being the surviving joint tenant takes it all. The Plaintiff adduced evidence in support of this position which evidence was not rebutted and/or controverted. 10. That Plaintiff’s evidence on the illegality of the Entries Numbers 5, 6, 7, 8, 9 and 10 made against the suit properties which was corroborated by DW3 confirms the Plaintiffs particulars of illegality pleaded on paragraph 19 of her amended Plaint. In the circumstances Entry Numbers 5, 6, 7, 8, 9, 10, and 11 ought not to have been made against the suit properties as the same were irregular, unprocedural and illegal. 11. Citing the provisions of Section 5 of the Law of Succession Act, the above definition of what amounts to free property IN RE ESTATE OF LUCY MUTHONI OBAT (DECEASED (2021) eKLR and the totality of the circumstances of this case, it is submitted the suit properties were not the free property of the late Evan Kuria Thegeya’s that he could bequeath by a written will. 12. It is contended that DW1, herself and DW2 told this Court that the late Evan Kuria Thegeya attempted to sell the suit properties during his lifetime in vain because the Plaintiff did not consent to the sell. Evan Kuria Thegeya did not specifically mention the suit properties by their Land Reference Numbers in his Will dated 29.8.1997 as properties that he was bequeathing to the 1st Defendant since he knew he could not legally bequeath the same. 13. It is submitted that in the absence of specific mention of the suit properties by their Land Reference Numbers, in the Will, it was and still is not legally tenable for the 1st Defendant to use the Will dated 29.8.1997 as the basis for staking a claim to the suit properties. 14. On the allegations that the 1st defendant saved the suit properties from the fraudulent transfer, it is submitted that evaluating the sequence of events the suit properties were transferred to the late Evan Kuria Thegeya, then to Sukhandan Kumar Jalota and then to George Ndicu Mbugua one cannot absolve the 1st Defendant from those illegal Entries given that she had access to the original certificates of lease over the suit properties following the demise of Evan Kuria Thegeya. It is submitted that the argument of saving the suit properties from the alleged grabbers cannot legally be available to the 1st Defendant and should not be given any weight. 15. On whether the suit properties formed part of the Estate of the late Evan Kuria Thegeya it is submitted neither the Written will nor the Certificate of Confirmation of Grant of Probate with Written Will annexed mention the suit properties specifically by their Land Reference. Further that neither the Will dated 29.8.1997 nor the Certificate of Confirmation of Probate with Written will annexed dated 29.1.2014 support the registration of the 1st Defendant, Lucy Thegeya as proprietor of the suit properties alongside the Plaintiff on 20.6.2017. Such Registration was irregular, unprocedural, illegal and null and void. **1ST DEFENDANTS SUBMISSIONS** 67 The 1st Defendant submissions can be summarized into the following issues: 1. **Whether the suit properties were held under a joint tenancy or a tenancy in common between the Plaintiff and the late Evan Kuria Thegeya.** 2. **Whether the intention of the parties, as reflected in the transfer documents and subsequent conduct, was to create ownership in equal beneficial shares.** 3. **Whether upon the demise of Evan Kuria Thegeya, his interest in the suit properties devolved to the Plaintiff through the doctrine of survivorship or to his estate through succession.** 4. **Whether the Plaintiff was complicit, negligent, or lackadaisical in relation to the alleged fraudulent transfer and dispossession of the suit properties.** 5. **Whether the restriction registered against the suit properties should be removed.** 68 Counsel on record for the 1st Defendant submitted that the phrase “in equal shares” in the transfer instrument created a tenancy in common and not a joint tenancy. Reliance was placed on Section 91 of the Land Registration Act and the decisions in **Moses Bii v Kericho District Land Registrar & Another [2015] eKLR, Shah & Another v Haria & Another [2022] KEELC 2226 (KLR) and Charles M M Ondieki v J N Kahura & 9 Others [2021] eKLR**. Counsel argued that the wording conferred distinct and ascertainable shares upon each proprietor, thereby excluding survivorship rights. 69 On the second issue regarding the intention of the parties, the 1st Defendant submitted that both parties consistently acknowledged ownership in equal beneficial shares. Reliance was placed on correspondence showing attempts by the Plaintiff to sell her alleged 50% share and offers by the deceased to buy her out. Counsel cited **Shah & Another v Haria & Another [2022] KEELC 2226 (KLR) and Isabel Chelangat v Samuel Tiro Rotich & 5 Others [2012] eKLR** in support of the proposition that tenancy in common permits distinct though undivided interests. The Defendant maintained that the parties never intended to create survivorship rights. 70 On the third issue, the 1st Defendant argued that the doctrine of *jus accrescendi* was inapplicable since the properties were not held under joint tenancy. Counsel submitted that the parties were not spouses within the meaning of Section 91(8) of the Land Registration Act. Reliance was placed on **Diana Muchiri v Lydia Wariara Njenga & Another [2022] eKLR, Mukazitoni Josephine v Attorney General [2015] eKLR**, **Isabel Chelangat v Samuel Tiro Rotich & 5 Others [2012] eKLR** and **Moses Bii v Kericho District Land Registrar & Another [2015] eKLR**. It was therefore contended that the deceased’s share devolved to his estate through succession. 71 On the fourth issue concerning fraudulent transfers, the 1st Defendant submitted that the suit properties were unlawfully transferred to third parties using forged and irregular documents after the deceased’s demise. Counsel stated that investigations by the Directorate of Criminal Investigations established the fraudulent nature of the transactions. The Defendant further argued that the Plaintiff remained silent and failed to challenge the impugned dealings despite knowledge thereof. It was submitted that the 1st Defendant acted diligently and in good faith in recovering the properties and securing cancellation of the fraudulent titles. 72 On the final issue regarding the restriction, the 1st Defendant argued that the restriction registered against the suit properties was unlawful and irregular. Reliance was placed on Sections 76, 77 and 78 of the Land Registration Act, which require notice, inquiries and hearing before registration of a restriction. Counsel submitted that neither the Plaintiff nor the Land Registrar justified the restriction or complied with the statutory procedure. The Court was therefore urged to remove the restriction and declare ownership of the suit properties in equal shares between the Plaintiff and the deceased’s estate. **INTERESTED PARTY’S SUBMISSIONS** 73 The Interested Party submitted that it was the entity that paid the full purchase price for the suit properties and facilitated their acquisition. It contended that the properties were subsequently registered in the joint names of the Plaintiff and the late Evan Kuria Thegeya. 74 The Interested Party argued that the certificates of lease did not expressly indicate whether the proprietorship was joint tenancy or tenancy in common. It therefore submitted that under Section 91 of the Land Registration Act, where the register is silent, the presumption is that the proprietors hold the property as tenants in common in equal shares. 75 In support of its position, the Interested Party relied on the decisions in ***Mohamed v Mwabvika [2023] KEELC 16917 (KLR) and Moses Bii v Kericho District Land Registrar & Another [2015] eKLR***, where the Courts held that in the absence of express words creating a joint tenancy, the law leans towards a presumption of tenancy in common. 76 The Interested Party further submitted that the Plaintiff and the late Evan Kuria Thegeya were merely friends and not spouses. Consequently, the circumstances did not justify a presumption of joint tenancy with survivorship rights. 77 Lastly, the Interested Party prayed that the Court finds that the suit properties were owned in common and that the Plaintiff’s claim for exclusive ownership be dismissed. The Interested Party also sought costs of the suit. **ANALYSIS AND DETERMINATION** 78 I have considered the pleadings filed by the parties herein, the testimonies of the witness and the documentary evidence placed before this court. I have also taken time to extensively read and consider the submissions filed on behalf of the parties herein as well as the applicable law. 79 The following are the issues that fall for determination by this court: - 1. ***Whether the Plaintiff herein is the real Dr. Angelika Frey;*** 2. ***Whether the Plaintiff and the late Evan Kuria Thegeya held the suit properties as joint tenants or tenants-in-common;*** 3. ***Whether the suit property was available for distribution as part of the late Evan Kuria Thegeya’s Estate;*** 4. ***Whether the Interested Party holds any interests over the suit properties;*** 5. ***What orders should this court issue on the suit and the counterclaims herein*** 6. ***Who shall bear the costs of the suit and Counterclaims?*** **Whether the Plaintiff herein is the real Dr. Angelika Frey;** 80 The first issue for determination is the identity of the Plaintiff, which issue has been raised repeatedly by the 1st Defendant, and was subject of a Notice of Motion application in this suit. The 1st Defendant insists that the Plaintiff herein is not the real Dr. Angelika Frey. However, at the same time she categorically told this court that she has no intention of withholding Dr. Angelika Frey’s share of the suit properties, but that there is need to first establish her identity. 81 The Plaintiff asserts that she is the Dr. Angelika Frey that purchased the land with the late Evan Kuria Thegeya. It is noteworthy being a foreign national, the Plaintiff does not have a Kenyan National Identity Card issued by this country. Therefore, she can only use her valid foreign passports as a primary identification document to establish her identity. When she first appeared to testify in court, the Plaintiff produced her Passport no. CH1HZ4687, which expired in 2024; and her current Passport no. CH1H73M47 all in the names of Dr. Angelika Frey. Aside from insisting that the Plaintiff is an imposter, the 1st Defendant did not dispute or urge that the said passports were forged. 82 Furthermore, Hillary Maina Thegeya (DW2) testified that he was a brother of the late Evan Kuria Thegeya, and he testified that he knew the said Dr. Angelika Frey as his late brother’s former girlfriend. He testified that he first met the Plaintiff when she first visited Nairobi with his brother as a tourist. DW2 confirmed that the Angelika Frey he first met in Nairobi is the same person who appeared in court to testify as the Plaintiff in this case. 83 To me therefore DW3 has special knowledge of the identity of the Plaintiff having confirmed that he had met her way before this suit was instituted. He has confirmed that the person who testified in this court as the Plaintiff is the same Dr. Angelika Frey that he met with his brother. Consequently, this court is convinced that the Plaintiff herein is the real Dr. Angelika Frey. **Whether the Plaintiff and the late Evan Kuria Thegeya held the suit properties as joint tenants or tenants-in-common;** 84 The present case relates mainly to an ownership dispute of the five parcels that comprise the suit properties herein. There is no dispute, however, that the suit property is currently registered in the names of Dr. Angelika Frey and Lucy Njambi Thegeya, the Plaintiff and 1st Defendant in this suit respectively. The bone of contention currently is the inclusion of the 1st Defendant as a co-owner of the suit properties. 85 According to the Plaintiff, she purchased the land in 1985 together with the late Evan Kuria Thegeya while they both lived in Germany. She claims she is the one who solely paid the entire purchase price through a bank guarantee issued by her bank in Germany, but she and the deceased were registered as joint proprietors. The Plaintiff thus claims that upon the demise of Evan Kuria Thegeya, the land automatically passed to her as the sole proprietor as guaranteed by the doctrine of survivorship or what is known as *jus accrescendi.* 86 On the other hand, the 1st Defendant herein who testified as DW1 claims an interest in the suit properties as the widow, executor and sole beneficiary of the estate of the late Evan Kuria Thegeya. She denies that the Plaintiff and her late husband were joint tenants. The 1st Defendant claims they were tenants-in-common, each holding an equal undivided share in the land. She further states that she is the sole beneficiary under her late husband’s will, therefore, she is entitled to his half share of the suit properties. 87 It is therefore pertinent to look at the legal framework and draw a clear distinction between a joint tenancy and tenancy-in-common. The court must also determine the type of co-tenancy that existed between the Plaintiff and the late Evan Kuria Thegeya. 88 Both types of co-tenancies are recognized in Section 91 of the Land Registration Act, 2012. More specifically, Section 91(1) - (5) provide as follows: - ***91.* Meaning and incidents of co-tenancies** ***(1) In this Act, co-tenancy means the ownership of land by two or more persons and includes joint tenancy or tenancy in common.*** ***(2) Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares.*** ***(3) An instrument made in favour of two or more persons and the registration giving effect to it shall show—*** ***(a) whether those persons are joint tenants or tenants in common; and*** ***(b) the share of each tenant, if they are tenants in common.*** ***(4) If land is occupied jointly, no tenant is entitled to any separate share in the land and, consequently—*** ***(a) dispositions may be made only by all the joint tenants;*** ***(b) on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly; and*** ***(c) each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person, and any attempt to so transfer an interest to any other person shall be void.*** ***(5) If any land, lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate.*** 89 The above provisions have been subject of numerous court discussions over the years. In ***Isabel Chelangat vs Samuel Tiro Rotich & 5 Others (2012) eKLR***, Justice Munyao Sila (Now Judge of Appeal) gave a detailed definition of the two types of co-tenancy thus: - ***“… At this juncture, I must distinguish between joint ownership of land and land held in common. These are two different types of tenancies by which two or more people are entitled to simultaneous enjoyment of land. To expound on this point, I have borrowed heavily from two texts, Megary & Wade, The Law of Real Property and Cheshire & Burn’s, Modern Law of Real Property. According to Burn, “...a joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares…”. Further, that “there is a thorough and intimate union between joint tenants. Together, they form one person.”*** ***A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship (jus accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy are: -*** ***(i) The unity of possession.*** ***(ii) The unity of interest.*** ***(iii) The unity of title.*** ***(iv) The unity of time.*** ***On unity of possession, each co-owner is entitled to possession of any part of the land as the other/s. One co-owner cannot point to any part of the land as his own to the exclusion of the other/s. If he could, then this would be separate ownership and not co-ownership. No one co-owner has a better right to the property than the other/s, so that an action for trespass cannot lie against another co-owner. Unity of interest means that the interest of each joint tenant is the same in extent, nature and duration, for in theory of law, they hold just one estate. Unity of title means that each joint tenant must claim his title to the land under the same act or document. This is satisfied by having the joint tenants acquiring their rights by the same conveyance and being so registered as joint tenants. Unity of time means that the interest of each tenant must vest at the same time.*** ***Tenancy in common on the other hand is different from joint tenancy. In a tenancy in common, the two or more holders hold the property in equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants. In other words, they have separate interests only that it remains undivided and they hold the interest together. The largest factor that distinguishes a joint tenancy from a tenancy in common is the absence of the doctrine of survivorship in the latter. The share of one tenant is not affected by the death of one of the co-owners. The share of the deceased, devolves not to the other co-owner, but to the estate of the deceased co-owner. Although the four unities required for a joint-tenancy may be present, only one, the unity of possession is essential.”*** 90 Indeed, it is clear that under the provisions of Section 91(2), where the instrument of transfer does not state the nature of the rights of the co-tenants, there shall be a presumption that they hold the interest as tenants in common in equal shares. In the the present suit however, my review of the instrument of Transfer of Lease to the Plaintiff and the late Evan Kuria Thegeya dated 28th October, 1985 clearly states that the Transferees would hold the leasehold interest as joint proprietors. The Land Registrar DW3 confirmed that the words “as proprietors in common” were cancelled out and which in my view corresponds with the instrument of transfer. 91 The Land Registrar testified that they reverted to the assumption that the land was held in common because the said Transfer of Lease went on to specify that they held the land in equal shares. A joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares. It must be noted that the transfer documents did not specify the exact shares to be held by the Plaintiff and Deceased. 92 My understanding is, under a joint tenancy, the parties do in fact have equal interest in the land, thus the words equal shares cannot have been meant as dividing their respective portions as to negate the words “joint proprietors” that had already been left to stand in the transfer documents. The court has had occasion to look at the entries that registered the transfer of the land from Ocean Estates Limited to the Plaintiff and the late Evan Kuria Thegeya in all the green cards produced before this court and the same did not indicate the shares of each of the two proprietors. 93 Moreover, the tenor and scope of joint tenancies was deliberated upon in the case of ***Mukazitoni Josephine vs Attorney General (2015) eKLR***, where the Court of Appeal stated and observed as follows: - ***“A joint tenancy cannot be severed unless one of the four unities of title, possession or interest is broken. A joint tenant has the right to the entire property or none. – since the other joint tenant also has a right to the entire property. This is expressed in latin as totem tenet et nihit tenet, a joint tenant holds everything and nothing”*** 94 Applying the above to this case therefore the words equal share did not, in the strict sense of the word, indicate that the joint-tenants would hold any distinct or separate share. In any event, under joint tenancy, the co-tenants do hold equal rights and or interests over the land. 95 From the foregoing, it is my considered view that the Plaintiff and the Deceased had intended to hold the suit properties jointly, or to be precise, as joint proprietors/owners. Further this would make more sense since the two were merely friends and not a married couple as stated by DW2 who testified that he was introduced to the plaintiff by his late brother Evans Thegeya as his girlfriend. **Whether the suit property was available for distribution as part of the late Evan Kuria Thegeya’s Estate;** 96 This court has determined that the Plaintiff and the late Evan Kuria Thegeya held the suit properties as joint tenants. Having determined the type of joint ownership between the Plaintiff and the deceased, it behoves the court to consider whether the suit properties formed part of the estate of the late Evan Kuria Thegeya as to be available for distribution to the beneficiaries his estate. 97 The 1st Defendant DW1 and the Land Registrar DW4 testified that the transfer of the late Evan Kuria Thegeya’s interests to the 1st Defendant was done by way of succession/transmission through the will, the Grant of Probate and Certificate of Confirmation issued thereunder. under the said will, the 1st Defendant was named sole beneficiary and executor of the deceased’s estate. The Plaintiff’s case is that the suit properties were not part of the assets of the deceased. The 1st Defendant was adamant that the suit properties are part of the estate since the deceased had bequeathed all his movable and immovable property. 98 Firstly, the provisions of Section 2 of the Land Act, defines joint tenancy as a form of land ownership where two or more persons each possess the land simultaneously and have undivided interest in the land under which, upon the death of one owner it is transferred to the surviving owner or owners. But more specifically, Section 91(4)(b) of the Land Registration Act provides that in a joint tenancy, no tenant is entitled to any separate share in the land, and on the death of a joint tenant, that tenant’s interest shall vest in the surviving tenant or tenants jointly. 99 Secondly with regards to whether property held under a joint tenancy can belong to the estate of one joint tenant where there is a surviving joint owner, in ***Re Estate of Johnson Njogu Gichohi (Deceased) (2018) KEHC 4520 (KLR)***, the court explained that: - **“13. … This means that where property is in the names of joint owners, upon the death of one of them, the surviving owner automatically becomes the owner upon presenting the evidence of death of the joint tenant i.e., death certificate to the registrar. The property automatically passes to the surviving joint tenant. This principle of survivorship over jointly owned property operates to exclude the property from the *Law of Succession Act* upon the death of one of the joint tenants. I am in agreement with the holding by Achode J. - *Mwangi Gakuri vs Bernard Kigotho Maina & Another, H. C NBI. Succ. Cause No. 2335/2011* where she stated:** **“*Property is capable of passing upon death other than by will. It may pass by survivorship……. This applies in cases of joint tenancies that is, where property is jointly owned. Where a co-owner of property is a beneficial joint tenant of the property, their interest will automatically/pass to the surviving tenant upon their death by virtue of the principle of survivorship… The principle of survivorship operates to remove jointly owned property from the operation of the law of Succession upon the death of one of the joint tenants’ …*** **18. … By the principle of survivorship land owned jointly passes automatically to the surviving owner when one dies without the need to file a Succession Cause.*”*** 100 In the same breath, in ***Re Estate of Dorica Lumire Mapesa (Deceased) (2018) eKLR***, the Court had this to say on the place of jointly held land in the process of succession: - **“*20. Having concluded that East/Wanga/Lubinu/66 was held by the deceased and Silas Okumu Simeyo as joint proprietors, it follows then that following her demise on 6th February 1994, the principle of jus accrescendi applied, and her interest in the said property merged or united with that of the surviving joint tenant or joint proprietor, Silas Okumu Simeyo. The effect of this then would be that the said property ceased to form part of the estate of the deceased and was not available for distribution in her estate. Indeed, by virtue of section 118 of the Registered Land Act, Silas Okumu Simeyo, did not even need to initiate a succession cause to have the property transferred to his name, all he should have done was provide proof of the death of the joint tenant to the Land Registrar for him to act as envisaged by that provision.”*** 101 The court has noted that the 1st Defendant’s submission that the failed attempts by the Plaintiff and the deceased to dispose of their interest is proof that the unity of interest in the joint tenancy had been broken. I must respectfully disagree with this proposition. I say so because firstly the 1st Defendant seems to admit that the Plaintiff and the Deceased did in fact hold the suit properties as joint tenants and that is why in my view consent of the other was required. Secondly, the unity of interest does not simply break because one co-owner is desirous of disposing of their interest, or that a co-owner has expressed interest to purchase the interest of the other joint owner. There is a recognised procedure under law through which the unity of title can be broken. 102 Notably, under Section 91(7), a joint tenancy can be converted into a tenancy in common by the doctrine of severance. Under the said provision, the severance must be completed through registration, and unless this is done the rights of the co-owners remain as joint tenants. The burden of proving that the joint tenancy had been severed rests on the party who seeks to rely on the severance. There has been no evidence tendered to show that as at the death of Evan Kuria Thegeya, the joint tenancy between him and the Plaintiff herein had been formally severed. 103 Clearly the existence of a will made by the late Evan Kuria Thegeya is not proof enough that the joint tenancy had been severed. In any case the will did not mention the suit properties by their particulars. DW1 conceded to this during cross examination. 104 Further I have noted DW1 evidence and argument that she helped recover the suit properties from fraudsters. I will not get into the insinuations that she was an accomplice that is the realm of another jurisdiction. Equally therefore the fact that the 1st Defendant, as a widow and the executor of the deceased’s estate, fought to recover the land from fraudsters does not also clothe her with any proprietary interest over the suit land pursuant thereto. 105 It is trite that the probate court when exercising its jurisdiction over matters dealing with intestate and testamentary succession the said court deals with the free property of the deceased person and which is usually the property that the deceased was legally competent to freely dispose off during his lifetime and in respect of which his interest had not been terminated by his death. In the present case I have already shown the deceased rights had been terminated at death as they never accrued to his estate. 106 For me it cannot therefore be argued that the late Evan Kuria Thegeya was so entitled to one half of the suit properties as to be included in the assets forming part of his estate. That being the case the doctrine of jus accrescendi (survivorship) was applicable in regard to the ownership of the suit properties. Suffice to say that upon the death of Evan Kuria Thegeya, all his rights and interests over the suit properties transmitted to and vested in the Plaintiff as the surviving co-tenant. It therefore means that the suit property was not available for distribution to the 1st Defendant as the sole beneficiary of the estate of the late Evan Kiarie Thegeya. 107 The suit properties not being estate property, upon the death of the deceased, the Plaintiff is not obliged to file a succession cause before getting the suit properties transferred to her. She was a joint owner with the deceased, and all that is required is for her to present the deceased’s death certificate to the Land Registrar for his name to be deleted and to have her become the sole owner of the property. 108 The above being the case, and the fact of death of her joint-owner, Evan Kuria Thegeya confirmed in this suit as being deceased it follows therefore that all the five suit properties herein devolve wholly upon the Plaintiff. 109 Having arrived at the aforesaid conclusion the 1st Defendants Counterclaim must fail. **Whether the Interested Party holds any interests over the suit properties;** 110 The Interested Party applied to be joined to this suit claiming an interest in the suit properties. It is DW2 case that the Interested Party paid the entire purchase price on the instructions of the late Evan Kuria Thegeya and not the Plaintiff. The Interested Party claims that the money was not refunded, thus it has an interest in the suit property. 111 The Plaintiff herein explained that the purchase price for the five plots was 130,000 German DeusMarks which at the time translated to the equivalent of KShs. 495,000/-. She testified that she secured the said amount by a Bank Guarantee issued by her bank in Germany, namely Kreissparkasse Muhldorf am Inn. The Bank Guarantee documents dated 04.10.1985 produced by the Plaintiff state that the 130,000 German Marks was with respect to Theevan Enterprises Limited Company. Another letter from Kreissparkasse Muhldorf am Inn to Barclays Bank Kenya also dated 04.10.1985 is titled “Credit Survey for the Firm of Theevan Enterprises Limited”. 112 From the Plaintiff’s evidence and the bundle of documents produced relating to the bank guarantee, the correspondence was between the Plaintiff’s bank and Barclays Bank of Kenya Limited. In the guarantee documents of 04.10.1985, the Plaintiff’s Bank in Germany asked Barclays Bank Limited to accept the amount of 130,000 German Marks in favour of Theevan Enterprises Limited with respect to a surety guarantee. The guarantee was issued in favour of the Interested Party. However, DW2 has not told this court that it had any business with the Plaintiff and her bank other than the purchase of the suit property. Thus, it cannot be heard to claim through DW2 that it used its money to pay for the land, or that the money it used was not refunded. 113 The Interested Party has produced a Bankers Cheque for the amount of KShs. 445,500/- issued by Barclays Bank Kenya Limited, the bank to whom the guarantee was issued by the Plaintiff’s Bank. The said Cheque was forwarded by the Interested Party herein through a letter dated 25.10.1985 and signed by DW2, to the firm of Bryson Inamdar & Bowyer Advocates, who were the advocates handling the transaction. In the said letter he states that he had received instructions to pay the purchase price, from the Plaintiff and the late Evan Kuria Thegeya, who he acknowledged were the ones buying the property in Diani. 114 The Interested Party produced and relied on a receipt for payment of the Purchase price dated 28.10.1985 for the amount of KShs. 445,500/- which indicates that the money was paid to the firm of Bryson Inamdar & Bowyer Advocates by Barclays Bank Kenya Limited. The Interested Party also seeks to rely on a letter from the firm of Bryson Inamdar & Bowyer Advocates dated 28.10.1985 as proof that it purchased the property. However, the said letter is actually addressed to the Plaintiff and the late Evan Kuria Thegeya to an address in Germany, whereas as the Interested Party’s Director Hillary Thegeya is only copied into the said correspondence meaning therefore, he was not a principal party. 115 I must now consider DW2 claim that the Interested Party paid for land rent and land rates over the suit properties through its sister company Fintel Limited, the Land rent Pay-in Slip from KRA indicates that the land owner was Evan Thegeya. Unfortunately, for the Interested Party, neither Theevan Enterprises Limited nor Fintel are named in the said payment Slip. This claim is therefore unsubstantiated, and even assuming it was, payment of Land rates and rent to me would not amount to ownership or contribution towards the purchase price. 116 According to the 1st Defendant, the titles were stored in a safe owned by the deceased and his brother Hillary Thegeya. DW2 has thus known from 1985 that the land was registered in their names at the expense of the Interested Party, but took no steps to rectify the same despite claiming that he paid for the land. I agree with this observation. 117 It is therefore the finding of this court that the Interested Party has not proved to the required standard its interest in the suit properties. Consequently, the Counterclaim raised by the Interested Party must fail. **What orders should this court issue?** 118 The reliefs sought by the Plaintiff have already been highlighted at the introduction of this judgement. The 1st Defendant and the Interested Party also included separate Counterclaims wherein they asked the court to grant them some reliefs which have already been highlighted. At this juncture, the court needs to determine which reliefs should issue flowing from the above determinations. 119 To start with the Plaint, the Plaintiff first sought a permanent injunction restraining the 1st Defendant acting by herself or anyone acting through or under her from dealing with or in any way interfering with the suit properties. The Plaintiff also sought a declaration that the Plaintiff is the absolute owner of the suit properties through right of survivorship (or jus accrescendi). 120 This court has found that the Plaintiff is entitled to all the suit properties herein as the sole proprietor by virtue of the fact that she is the sole surviving joint-tenant. She is thus entitled to a declaration that she is the absolute owner of the suit property through the doctrine of survivorship/jus accrescendi. Being the absolute proprietor, the Plaintiff is entitled to all implied and expressed rights and privileges belonging or appurtenant thereto as guaranteed under Section 24 of the Land Registration Act. One such right is the right to peaceful possession of the land to the exclusion of others. 121 The court is guided by the holding in ***Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR*** where the court pronounced itself as follows with regard to what constitutes a permanent injunction; - ***“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected”.*** 122 There is no doubt that if the Defendants or the Interested Party are allowed any dealings with the suit properties, the Plaintiff’s right as the sole owner, and her right to peaceful enjoyment of the land will be violated. She thus stands to suffer irreparable loss which may not be compensated by an award of damages if the Defendants and the Interested party are allowed to have full access to all the portions of the suit lands without her permission. The Plaintiff is thus entitled to the permanent injunction sought against the Defendants and the Interested Party restraining them from dealing with the suit property. Prayer’s prayers (1) and (2) of the Plaint are thus merited. 123 The Plaintiff also asked for an order directing the 2nd Defendant to revoke the Certificates of Title in respect to the suit properties and issue them in the name of the Plaintiff. Section 80 of the Land Registration Act empowers the court to rectify the land register and provides: - ***80. Rectification by order of Court*** ***(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, 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.*** 124 Under Section 80, this power is exercised where a registration has been procured through fraud or mistake. This raises the question whether the trial court has a lawful basis to exercise its power under Section 80. From the testimony given before this court, the titles issued to the 1st Defendant were prepared on the mistaken belief that the Plaintiff and the deceased held the land as tenants-in-common. This led to the assumption that his alleged portion of the lands were available for distribution as assets of his estate to the 1st Defendant herein as the sole beneficiary of his estate under the will. 125 Going by the finding of this Court however, the suit properties were owned jointly, which means they automatically devolved to the Plaintiff on the event of the death of the late Evan Kuria Thegeya. They were not available for distribution to the deceased’s estate under the Succession Act. Consequently, this being a mistaken view on the part of the 2nd and 3rd Defendant, it forms a basis to cancel the titles and rectify the register to reflect the Plaintiff as the sole owner of the suit properties. Prayer (3) of the Plaint is therefore merited. 126 I turn now to the reliefs sought in the 1st Defendant’s counterclaim. The first prayer in the 1st Defendant’s counterclaim was for a declaration that the Plaintiff is a fraudster and the suit properties are owned by the late Evan Kuria Thegeya and Dr. Angelika Frey in equal shares. The court was convinced that the plaintiff is not an imposter. Additionally, I already found that the nature of co-tenancy between the Plaintiff and the deceased was a joint tenancy, and that upon his death, the land is now fully owned by the Plaintiff, this prayer cannot succeed. 127 The 1st Defendant also prayed for removal of the restriction registered against the suit properties on 21st June, 2017. I note that the Restriction was placed by the Plaintiff herein claiming interest as an owner. Since her said interest has been affirmed by this court, the Plaintiff shall be at liberty to decide whether she wants to remove the said restriction, for which an elaborate procedure exists in the Land Registration Act, or whether she will retain it. On the other hand, having no interests in the suit lands, the 1st Defendant is not entitled to the said relief. 128 On its part, the Interested Party sought to be declared the owner of the suit property, as well as a permanent injunction stopping the Plaintiff from any interfering with its said ownership of the suit land. This court has considered the purported interests that the Interested Party alleged to have on the suit land, and found that it has none. As a result, the prayer’s sought in the Interested Party’s Counterclaim also cannot issue. **Who shall bear the costs of the suit and the Counterclaims?** 129 On costs of the suit, Section 27 of the Civil Procedure Act provides that: - ***27. Costs*** ***(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.*** ***(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.*** 130 Costs, therefore, generally follow the event, and are awarded at the discretion of the court as provided under the above section. The principle that costs follow the event, as explained in ***Jasbir Singh Rai & 3 others vs Tarlochan Signh Rai & others (2014) eKLR***, is not intended to penalize the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending the case. 131 The Plaintiff herein, having been inconvenienced by the transfer of a share of the suit property to the 1st Defendant, was forced to take steps to protect her interests in the land. Having succeeded in that regard, I find that she is entitled to costs of the suit and interest as sought in the Plaint. The 1st Defendant shall therefore be condemned to pay the Plaintiff’s costs. **CONCLUSION** 132 In view of the forgoing deliberations, the court hereby issues the following orders in determination of the present suit and counterclaims: - 1. The 1st Defendant’s Counterclaim dated 10th July, 2017 is hereby dismissed with no orders as to costs. 2. The Interested Party’s Counterclaim dated 19th June, 2023 is hereby dismissed with no orders as to costs. 3. A permanent injunction be and is hereby issued restraining the 1st Defendant and Interested party acting by themselves or agents, servants and or employees from encroaching into, trespassing, alienating, occupying, selling, erecting buildings and/or other structures, or in any way dealing with or interfering with LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385, at Diani, Kwale County. 4. A declaration does hereby issue that the Plaintiff is the absolute owner of land known as LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385, through right of survivorship (or *jus accrescendi*). 5. The 2nd Defendant be and is hereby directed to revoke the Title Certificates in respect to LR MOMBASA/MAINLAND SOUTH/DIANI BEACH BLOCK/376, 380, 381, 384 and 385 and issue them in the name of the Plaintiff. 6. The 1st Defendant shall pay the Plaintiffs costs of the main suit and interest. Judgement dated signed and delivered this 22nd Day of May 2026 **HON. LADY JUSTICE A.E DENA** **JUDGE** Judgement delivered virtually through Microsoft teams Video Conferencing Platform; - **In the presence of:** Mr. Mogikoyo appearing alongside Mr. Magiya for the Plaintiff Mr Kimani for the 1st Defendant No appearance for the 2nd and 3rd Defendant No appearance for the Interested Party Mr. Daniel Disii– Court Assistant.