https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2969

Ngossor v Kuku & 8 others (Environment and Land Case 828 of 2017) [2026] KEELC 2969 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEELC 2969 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case 828 of 2017 MD Mwangi, J May 13, 2026 (Formerly Nairobi High Court ELC Suit No.234 of 2016) Between Florence Soila Ngossor Plaintiff and Riyokan Ole Kuku 1st Defendant Geoffrey Ndungu Gathii 2nd Defendant Roots Investments Company Limited 3rd Defendant Dcf Engineering Company Limited 4th Defendant Jeffery Robin Mein 5th Defendant Desterio Oyatsi 6th Defendant Kiriinya Mukiira 7th Defendant The Land Registrar, Kajiado County 8th Defendant The Honourable Attorney General 9th Defendant Judgment 1.The Plaintiff initiated this lawsuit against the Defendants via a Plaint dated March 8, 2016. It was initially filed in the Environment and Land Court Division of the Nairobi High Court as ELC Suit No. 234 of 2016. Following its transfer to this court, the case was re-registered as Kajiado ELC 828 of 2017. In her claim, the Plaintiff seeks judgment against all nine Defendants jointly and severally for the following orders:i.A declaration that the Plaintiff is the absolute registered owner of all that parcel of land known as Kajiado/Kaputei North/2966 measuring eighteen (18) acres or thereabouts, with indefeasible rights, title and interest pursuant to a title deed issued by the Kajiado Land Registry under the Repealed Registered Lands Actii.A permanent injunction restraining the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th Defendants themselves, their agents and or servants from trespassing, evicting, wasting and/or in any other way interfering with the Plaintiffs’ absolute title in Kajiado/Kaputei North/2966.iii.An order for annulment and/or revocation of the certificates of titles for all those parcels of land known as Kajiado/Kaputei North/45336 and 45337 for being illegal, irregular, null and void.iv.Cost of the suit. 2.The Plaintiff avers that she purchased Title No. 500 (107 acres of the Olkenos Group Ranch) from the 1st Defendant and, following subdivision, obtained absolute and indefeasible ownership of the 18-acre suit property (Kajiado/Kaputei North/2966) under the repealed Registered Land Act. 3.While the 1st, 3rd, and 7th Defendants were actively disputing the property's ownership, the Plaintiff's lawyers, Messrs. Shapley Barret & Company Advocates, informed her that her original title deed—which they had previously received—was lost and reported to the police. During this same period, the Plaintiff discovered a fraudulent attempt to transfer the property to the 5th Defendant. This transfer was according to the Plaintiff, facilitated through documents prepared by the 6th Defendant, a senior partner at Messrs. Shapley Barret & Company Advocates, alongside his partner, Louise D’Souza. 4.Subsequently, on March 15, 2013, the Kajiado Land Registry issued a Gazette Notice inviting objections before issuing the Plaintiff a new title. The 3rd Defendant objected on May 6, 2013, asserting that Kajiado/Kaputei North/2966 no longer existed due to its subdivision into two new parcels: Kajiado/Kaputei North/45336 (held by the 3rd Defendant) and Kajiado/Kaputei North/45337 (sold first to Johari Ventures Limited, then to the 4th Defendant). In response to these actions, the Plaintiff brings the following specific claims of fraud, illegality, and unlawfulness against the 2nd, 5th, 6th, and 8th Defendants:a.Illegal and unlawful causation of original green card of Kajiado/Kaputei North/2966 by the 2nd Defendant to be replaced with fake one depicting him as the registered owner of the first title as opposed to the Plaintiff.b.Falsification of the 7th Defendant signature by the 2nd Defendant occasioning illegal subdivision of Kajiado/Kaputei North/2966 into Kajiado/Kaputei North/45336 and 45337 which he illegally and irregularly sold off to the 3rd and 2nd Defendants as second and third purchasers respectively.c.Forgery of the Plaintiff’s signature in the transfer forms by the 6th Defendant to fraudulently cause transfer of Kajiado/Kaputei North/2966 to himself and sell it off to the 7th Defendant in 1998 who presently claims its ownership.d.Purported false transfer of the suit land by the 6th Defendant to the 5th Defendant through execution of the transfer forms and making of representation to appear as if it was done in presence of the Plaintiff.e.Purported submission of an application for transfer of the plaintiff’s land by the 6th Defendant to the 5th Defendant leading to issuance of letter of consent by Purko Land Control Board in a meeting held in October, 1993 yet the Plaintiff has never appeared before the Board.f.The Plaintiff queries why the 6th Defendant certified this present transaction yet all his land transaction was certified by D’Souza or Mr. Dagama Rose. 5.As a result of the aforementioned illegalities, the Plaintiff filed a police report, leading to the ongoing prosecution of the 2nd Defendant in Criminal Case No. 2657/2013. Despite serving the Defendants with demand letters and notices of intention to sue, they have persistently hindered the Plaintiff's efforts to replace her lost title and secure the property. Ultimately, the Plaintiff avers that the current Land Registry records for the suit property are entirely fraudulent, stemming from unlawful acts perpetrated by the 2nd and 5th Defendants from the onset. 6.The Plaintiff avers that, with the exception of High Court Judicial Review Miscellaneous Civil Application No. 193 of 2013, which solely sought to quash the Kajiado Principal Magistrate’s decision in PMCC No. 16 of 2012 and did not determine the issue of ownership, there is no other pending litigation between the parties regarding the suit property. Furthermore, this suit was instituted by the firm of Naikuni, Ngaah & Miencha Co. Advocates, who have continuously represented the Plaintiff throughout these proceedings. Defendants case 7.In his Statement of Defence and Counterclaim dated September 2, 2016, the 6th Defendant vehemently denies the allegations leveled against him. He characterizes the claims as false, fictitious, legally unsustainable, and an abuse of the court process, further asserting that they amount to perjury and a serious offense against the administration of justice. In his capacity as a partner at Shapley Barret & Company Advocates, the 6th Defendant contends that, contrary to the Plaintiff's assertion that he did not handle any of her legal matters, he in fact signed several transfer documents executed by the Plaintiff, as listed below: Year of transfer and details of the drawer Title No. L. R Parties to the transfer and consideration 16/06/1997DrawerShapley Barret Company Advocates Kajiado/Kaputei North/2971 Florence Soila Ngossor (vendor) & Joseph Kahugu Njoroge(purchaser) at Ksh. 270,000/= 16/06/1997DrawerShapley Barret Company Advocates Kajiado/Kaputei North/2972 Florence Soila Ngossor (vendor) & Joseph Kahugu Njoroge (purchaser) at Ksh. 270,000/= 16/06/1997DrawerShapley Barret Company Advocates Kajiado/Kaputei North/2981 Florence Soila Ngossor (vendor) & George Mugua Njonjo & Esther Waithira Njono (purchasers) at Ksh. 270,000/= 22/06/1994DrawerShapley Barret Company Advocates Kajiado/Kaputei North/2982N/B Letter of consent and application for consent of Land Control Board Florence Soila Ngossor (vendor) & George Mugua Njonjo & Robinson Gakenge Karienye (purchasers) at Ksh. 190,000/= (1) Transfer executed in 1994 and forwarded to transferee’s Advocates for execution by transferee and registrationDrawerNyachae & Co. Advocates(ii) Application for land registration (13/9/1995)(iii)Agreement for sale(04/08/1994) Kajiado/Kaputei North/2977N/B Letter of consent and Application for consent of Land Control Board Florence Soila Ngossor (vendor) & George Kibagendi Angweny (purchaser) at Ksh. Ksh.200,000/= (i) Transfer executed in 1994 and forwarded to transferee’s Advocates for execution by transferee and registrationDrawerNyachae & Co. Advocates(ii)Agreement for sale (04/08/1994) Kajiado/Kaputei North/2981N/B Letter of consent and Application for consent of Land Control Board Florence Soila Ngossor (vendor) & Samwel Ondieki (purchaser) at Kshs. Ksh.200,000/= (i) Transfer executed in 1994 and forwarded to transferee’s Advocates for execution by transferee and registrationDrawerNyachae & Co. Advocates(ii)Agreement for sale (04/08/1994) Kajiado/Kaputei North/2978N/B Letter of consent and Application for consent of Land Control Board Florence Soila Ngossor (vendor) & Elkana Orare Otundo (purchaser) at Ksh. Ksh.200,000/= (i) Transfer executed in 1994 and forwarded to transferee’s Advocates for execution by transferee and registrationDrawerNyachae & Co. Advocates(ii) Application for registration (13/9/1995)(iii) Agreement for sale dated 04/08/1994 Kajiado/Kaputei North/2974N/B Letter of consent and Application for consent of Land Control Board Florence Soila Ngossor (vendor) & Elkana Orare Otundo (purchaser) at Ksh. Ksh.200,000/= 8.The 6th Defendant contends that throughout the period Shapley Barret & Company Advocates represented the Plaintiff, her files were primarily handled by the firm's late senior partner, Mr. Mirabeau Da Gama Rose, assisted by paralegal Mr. Luis De Souza. The 6th Defendant avers that the Plaintiff deliberately concealed a key fact from the court: during her transactions, she signed all transfer forms in the presence of Mr. De Souza, who filled them out by hand and verified her identity using her national identification number. Subsequently, these forms were presented to Mr. Da Gama Rose for his signature and official advocate's stamp. If Mr. Da Gama Rose was unavailable, the 6th Defendant would sign and stamp them in his stead. This procedure was strictly carried out to comply with Section 110 of the repealed Registered Land Act and Rule 7 of the Registered Land Rules, which required that the signature of any person executing an instrument of transfer be formally verified by a designated official, such as an advocate, land registrar, judge, or magistrate. 9.The 6th Defendant contends that the incomplete transfer document relied upon by the Plaintiff, although purportedly bearing his signature, is legally invalid as it lacks his official advocate's stamp. Without prejudice to this argument, he asserts that if the signature is indeed genuine, he merely signed the documents exactly as presented to him by Mr. Luis De Souza, relying on the established course of dealing which the law firm had maintained with the Plaintiff over many years. Furthermore, the Plaintiff has neither pleaded nor adduced any documentary evidence demonstrating that the 6th Defendant actually prepared or drew the transfer instrument. Finally, he outrightly dismisses the Plaintiff's allegation that he operates as a sole proprietor, affirming instead his continuous practice within the firm of Shapley Barret & Company Advocates. 10.Through a counterclaim filed against the Plaintiff and her advocates, Naikuni Ngaah & Miencha Advocates (as the 1st and 2nd Defendants to the counterclaim, respectively), the 6th Defendant alleges professional misconduct. He accuses the law firm of Naikuni Ngaah & Miencha Advocates of breaching their statutory obligations by aiding the Plaintiff in bringing a fraudulent and fictitious claim that severely damages his reputation. Specifically, he asserts that the advocates failed to investigate the true facts to ensure the claims met the necessary legal threshold. These accusations include:a.endorsing a claim or allegation that the 6th Defendant drew the transfer that forms the subject matter of the Plaintiff’s suit when they knew that the allegation was false.b.endorsing a false claim or allegation that the 6th Defendant drew the transfer that forms the subject of this suit in the face of the Plaintiff’s documentary evidence to the contrary.c.endorsing a false claim or allegations that the 6th Defendant drew the transfer that forms the subject matter of this suit without ascertaining the drawer of the said transfer and/or by concealing the correct page of the transfer relied on which ought to give the true details or facts of the drawer thereof.d.endorsing and/or making false misrepresentation that a notice of intention to sue had been served upon the 6th Defendant and he had refused or ignored the same and continued to interfere with the Plaintiff’s rights in the said property.e.endorsing a false claim of fraud against the 6th Defendant with full knowledge that a charge of fraud is such a terrible thing to bring against any person and more so an advocate, that it cannot be maintained or sustained in any court unless it is shown that the 6th Defendant had a wicked mind.f.drawing and aiding the Plaintiff to swear a false verifying affidavit in order to verify false and fictitious claims against the 6th Defendant.g.committing the criminal offence in the said proceedings of aiding, abetting, concealing and procuring the Plaintiff to commit perjury contrary to the provisions of Section 108(2) of the Penal Code.h.committing the additional criminal offence in the said proceedings of fabricating evidence with intent to mislead this honourable court in the proceedings contrary to the provision of Section 113 of the Penal Code. 11.Contending that this lawsuit has damaged his constitutionally protected reputation and integrity, the 6th Defendant petitions the court to invoke Section 56 of the Advocates Act (Cap. 16) and take disciplinary action against the Plaintiff's counsel. 12.In his counterclaim, the 6th Defendant prays for judgment against the Defendants, jointly and severally, for the following relief:a.Dismissal of the original suit with costs on the higher scale and on full indemnity basis.b.A declaration that the proceedings commenced by the 1st Defendant with the aid of the 2nd Defendant in the original suit are abuse of the court process.c.A declaration that the 2nd Defendant as a firm of Advocates have misconducted themselves and committed offences against the administration of justice in the proceedings commenced against the Plaintiff in the original suit.d.General damages. 13.In his Statement of Defence dated September 17, 2017, the 7th Defendant denies all allegations leveled against him. He asserts absolute ownership of the suit property, having purchased it from the 5th Defendant, Jeffery Robin Mein, via an agreement dated July 17, 1998, for a total consideration of Ksh. 950,000 (inclusive of the purchase price and statutory fees). The 7th Defendant maintains that he acquired good title, noting that pre-purchase due diligence at the Land Registry confirmed the 5th Defendant had been the registered proprietor since November 1993, following a purported purchase from the Plaintiff. Pleading the defence of a bona fide purchaser for value without notice, and maintaining that his title is absolute, indefeasible, and free from encumbrances, the 7th Defendant prays that the Plaintiff's suit against him be dismissed with costs. 14.In their Defence dated January 26, 2023, the 8th and 9th Defendants, represented by the Chief State Counsel for the Attorney General, categorically deny the Plaintiff's allegations of fraud and illegality, putting her to strict proof. They assert they had no knowledge of the Plaintiff losing her title deed, pointing out that the Kajiado Land Registry never issued the purported replacement title. Consequently, they maintain that the Plaintiff is not entitled to the requested prayers and urge the court to dismiss the suit with costs. Reply to 6th Defendant Counterclaim 15.In a Reply and Defence to Counterclaim dated October 4, 2016, the Plaintiff and the law firm of Naikuni Ngaah & Miencha Advocates respond to the 6th Defendant’s counterclaim by categorically denying the allegations leveled against them. They pray that the Court strikes out and dismiss the counterclaim with costs, and instead proceed to enter judgment in favour of the Plaintiff as originally prayed. Furthermore, the Plaintiff reiterates her primary assertions against the 6th Defendant, maintaining that she never appeared before him to execute the purported transfer forms, nor was her signature on those documents ever legally verified or certified. 16.The Plaintiff argues that the 6th Defendant’s assertions are inherently contradictory; he attempts to distance himself from the suit property while simultaneously admitting to handling her transactions, which included the property in question. Furthermore, the Plaintiff contends that the 6th Defendant is personally liable, his affiliation with Shapley Barret & Company Advocates notwithstanding. This personal liability stems directly from his active role in executing the transfer to the 5th Defendant. Specifically, the Plaintiff alleges that he irregularly verified her signature on the transfer forms in her absence, without reviewing any requisite supporting documentation, such as an instruction note from Mr. De Souza or a valid sale agreement. 17.In their defence against the counterclaim, the Plaintiff's counsel indicate their intention to raise a preliminary objection on the grounds that this Court lacks jurisdiction to entertain the counterclaim. The firm maintains that it lawfully discharged its professional duties and upheld the administration of justice by instituting the present suit upon receiving the Plaintiff's instructions. 18.Furthermore, given the substantial documentary evidence provided by the Plaintiff, including the contested transfer forms, the absence of a sale agreement, and rulings from both judicial review and criminal proceedings, counsel was under no obligation to conduct the independent investigation demanded by the 6th Defendant. Counsel submits that the 6th Defendant ought to focus on defending the main suit on its merits, rather than attacking opposing advocates under the guise of reputational damage. Finally, the firm asserts that advocates cannot be sued civilly merely for representing a client. If the 6th Defendant has a legitimate grievance regarding professional misconduct, the proper forum to lodge such a complaint is the Law Society of Kenya's Advocates Disciplinary Committee, established under Section 60 of the Advocates Act (Chapter 16, Laws of Kenya). 19.The 1st, 2nd, 3rd, 4th and 5th Defendants did not file their statements of defence against the Plaintiff’s claims. Analysis of Evidence 20.The testimony of PW1, Florence Soila Ngossor, commenced with the formal adoption of her Plaint, Witness Statement, and List of Documents dated March 8, 2016, alongside a prayer that the Court grant the reliefs sought. Testifying under oath, she affirmed her absolute ownership of the suit property, Kajiado/Kaputei North/2966, which she identified as a subdivision of a 107-acre parcel she had purchased from the 1st Defendant in 1992. PW1 categorically denied ever transferring the land to any third party. Furthermore, she denied engaging in any transactions with the 6th Defendant, an employee of Shapley Barret & Company Advocates, the law firm that handled her conveyancing matters. 21.During cross-examination, PW1 explained that she joined the 5th Defendant in this suit because the 7th Defendant claimed to have purchased the suit property from him. She conceded, however, that she did not anticipate a response to her claim from the 5th Defendant, as he was already deceased at the time she instituted the lawsuit. Furthermore, PW1 admitted that she had no evidentiary proof that the 7th Defendant, who is currently in possession of the suit property, had ever lodged a formal complaint alleging interference with the land. 22.When questioned as to why she sued the 6th Defendant, PW1 testified that he prepared the transfer form purportedly conveying the property to the 5th Defendant, and that he had acknowledged his signature on that document. Upon being referred to the 6th Defendant’s list of documents; specifically, a transfer form drawn by Walker Kontos Advocates indicating a transfer from herself to the 5th Defendant, she insisted it was actually prepared by the 6th Defendant. She categorically disowned the signature attributed to her on the form, stating that she did not know who signed it and could offer no explanation. She further admitted lacking any evidence to prove that her signature was forged, that the 6th Defendant had submitted the application for Land Control Board consent, or that she had lodged a formal complaint with the Board. She concluded by testifying that the incomplete transfer form she filed in support of her own claim was issued to her by the 6th Defendant. 23.PW1 informed the Court that by the time she instituted this suit in 2016, Mr. De Souza and Mr. Da Gama Rose, the two advocates who had handled all her transactions, had already passed away around 2011. She testified that during the 23-year period between the purported transfer in 1993 and the filing of this suit, she was completely unaware of any interference with the suit property, as it lay vacant. According to her testimony, it was not until October 2013 that she realized the 6th Defendant was allegedly responsible for the fraudulent transfer of the property, and that her late former husband, Mr. Chege, was also implicated in these fraudulent dealings. Regarding the replacement of the property's green card, she stated that, based on a report from the Land Registrar, she did not know the whereabouts of the original card prior to its replacement. Finally, upon comparing her signature on the contested transfer form with the one on her verifying affidavit, she expressed astonishment at their striking similarity. 24.PW1 testified that she possessed all the transfer forms demonstrating that the original title was subdivided into 11 distinct parcels, which included the suit property. She further attested that between 1994 and 2000, she sold 10 of these subdivided portions, retaining only the suit property for herself. 25.Under cross-examination by Ms. Kerubo, counsel for the 8th and 9th Defendants, PW1 acknowledged that the Land Registrar transferred the property to the 5th Defendant based entirely on the submitted paperwork. This documentation included the Land Control Board consent application, a copy of the consent itself, and a transfer form drawn by Walker Kontos Advocates, registered on January 12, 1994, which purported to bear the signatures of all parties. 26.During re-examination, PW1 reiterated that she had never sold or transferred the suit property to anyone, nor had she ever appeared before the 6th Defendant for attestation of such a transfer. She additionally swore that she did not know the 5th Defendant. PW1 testified that upon learning of an adverse claim to her land in 2013, she visited Shapley Barret & Company Advocates, who held custody of her original title deed. There, she discovered the firm had reported the document missing to the police after it allegedly vanished from their strong room. Finally, regarding Criminal Case No. 2657 of 2013, she informed the Court that neither the 6th Defendant nor representatives from Walker Kontos Advocates testified in those proceedings. 27.DW1, Desterio Oyatsi, commenced his testimony by adopting his witness statements (dated September 8, 2016, and June 28, 2022) and his lists of documents (dated September 9, 2016, and June 28, 2022) as his evidence-in-chief. He testified that the incomplete transfer form relied upon by the Plaintiff, which purported to convey the suit property to the 5th Defendant, was neither prepared by his firm, Shapley Barret & Company Advocates, nor did it indicate the name of the drawing advocate. 28.Explaining the conveyancing practice of the time, DW1 noted that his firm represented the Plaintiff (the vendor), while Walker Kontos Advocates represented the 5th Defendant (the purchaser). Under standard practice, the purchaser's advocate prepares the transfer instrument and forwards it to the vendor's counsel for execution, after which it is returned alongside other completion documents. DW1 asserted that this exact procedure was adhered to. As proof, he cited a letter dated November 4, 1993, from Shapley Barret to Walker Kontos, which forwarded the duly executed (albeit undated) transfer forms, the application for Land Control Board consent, and the original consent letter. He concluded his testimony by confirming that the 5th Defendant signed the transfer forms before his own counsel at Walker Kontos, after which stamp duty was duly paid. 29.DW1 testified that his counterclaim is grounded on the aforementioned events, specifically arising after he was reported to both the Law Society of Kenya and the police for the alleged fraudulent procurement of a transfer registration. Furthermore, these accusations attracted adverse media coverage, which falsely insinuated his involvement in the fraudulent acquisition of land valued at Ksh. 500,000,000 despite the actual purchase price being merely Ksh. 510,000, as reflected on the transfer form. Citing Section 103 of the Land Registration Act (Cap. 300), he emphasized the gravity of the allegations, noting that the offense of fraudulent procurement of title registration attracts a fine of Ksh. 5,000,000, imprisonment for up to five years, or both. Consequently, DW1 maintained that he is entitled to the damages sought in his counterclaim. He asserted that the Plaintiff's counsel aided and abetted this breach of his rights by filing the lawsuit based on an incomplete transfer document, thereby violating their professional and statutory duties. 30.Upon cross-examination, he testified that Da Gama Rose and D’Souza handled all conveyancing transactions for the Plaintiff, who was a long-standing client of Shapley Barret & Company Advocates. He insisted that he never handled her transactions personally, adding that she never deposited the original suit property title with the law firm. 31.He informed the court that while he did not know that Fauzia Bpashi had reported the original title missing, he independently verified its loss from their office with the police. Addressing Criminal Case No. 2657 of 2013 against the 2nd Defendant, Geoffrey Ndungu Gathii, he testified that he did not take the stand and was unaware of Fauzia Bpashi's testimony. Finally, he noted the court's conclusion in that case, which established that fraud was committed via document tampering. 32.Upon reference to the correspondence dated August 25, 1993, from Walker Kontos to Shapley Barret Company Advocates, which forwarded a sale agreement signed by the 5th Defendant, the 6th defendant admitted that this specific document did not actually pertain to the property currently under dispute. Furthermore, he was unable to produce any sale agreement to substantiate his counterclaim regarding the disposal of the suit property, despite his own acknowledgment that such an agreement had been drafted by the legal counsel for the vendors. He testified that his awareness of the suit property being sold only occurred after he obtained relevant documentation from Walker Kontos. Additionally, he confessed that at the time he witnessed the signature of the transferee on the transfer form, the transferor had not actually appeared before him. In regard to the complaints filed against him by the plaintiff at the commission/tribunal, he expressed uncertainty about their current status, even though he admitted to having filed a complaint himself against the Plaintiff’s lawyer for allegedly aiding and abetting a breach of contract against him. 33.During the cross-examination of DW1 by Mr. Mugambi, counsel for the 7th Defendant, it was explained that the firm had conducted the subdivision of parcel Kajiado/Kaputei North/2322 into various portions, including the suit property, on behalf of the Plaintiff. By the time Shapley Barret Company Advocates wrote to Messrs Walker Kontos on November 4, 1993, this subdivision had already been finalized. Following the completion of the subdivision, the suit property was transferred directly to the 5th Defendant and a title was issued in his name. The remaining balance of the purchase funds, after the deduction of advocates' fees, was subsequently dispatched and paid into the Plaintiff’s Barclays Bank account, as evidenced by a payment voucher dated February 17, 1994. According to the testimony of DW1, the 5th Defendant obtained a clean title the moment the property was procedurally sold to him, and the Plaintiff received the full value for her land during the period of 1993 to 1994. The court was further informed that the individuals who had handled these transactions, Mr. Dagama Rose and Mr. De Souza, had both passed away around the year 2012. 34.The second witness, Kiriinya Mukiira (DW2), a former Permanent Secretary for Land, began his evidence-in-chief by adopting his statement of defence, witness statement, and list of documents dated August 31, 2021. He testified that he became the registered owner of the suit property after purchasing it from the 5th Defendant for the sum of Ksh 950,000 under an agreement dated July 17, 1998. He stated that Kshs. 95,000 was paid prior to the execution of the contract, while the remaining balance of Kshs. 855,000 was settled following the issuance of the consent from the Land Control Board. DW2 noted that the 5th Defendant’s son had shown him the property and that due diligence was carried out on his behalf by Peter Walker of Walker Kontos, who represented both parties in the transaction. After the transfer documents were signed, he received a certificate of title in his name and remained in possession and occupation of the property until 2013. At that time, an investigator requested a statement from him and his title documents due to an ongoing investigation into potential fraud, following a complaint by the Plaintiff alleging that her signature had been forged to facilitate the sale. DW2 informed the court that after the criminal case against the 5th Defendant regarding the forgery was concluded—in which both he and the Plaintiff testified—the 5th Defendant was found guilty and convicted. DW2 claimed that he later learnt that the Plaintiff was the original owner of the primary land from which his property was subdivided. He maintained that the police findings established he had become the owner through a procedural purchase. 35.Under cross-examination, DW2 noted that during his tenure as Permanent Secretary in the Ministry of Lands, he was responsible for overseeing land registries nationwide. He reiterated that the 5th Defendant faced charges in criminal case No. 2657/2013 for forgery-related offenses after the Plaintiff claimed she had never sold the property. He acknowledged being aware that when he purchased the land from the 5th Defendant, the original title (Kajiado/Kaputei North/2966) had previously been owned by the Plaintiff, though he was not certain of the details regarding if or when she sold it to the 5th Defendant. Relying on official search certificates dated November 16, 2011, and January 25, 1994, he insisted that the property was registered in the 5th Defendant’s name. Furthermore, he stated that the due diligence conducted before his purchase confirmed this registration. 36.When presented with a witness statement from an individual named Fauzi from the criminal case, which indicated the suit property had never been sold because it did not appear in the registry's file cards, DW2 testified that he did not know Fauzi. He maintained that the DCI office had confirmed his acquisition was procedural, as evidenced by the obtained transfer consent and the transfer documents executed by himself and the 5th Defendant, followed by the eventual transfer after payment of stamp duty. He highlighted that he was not charged alongside the 5th Defendant but instead served as a prosecution witness. During re-examination, DW2 repeated that he had no knowledge of Fauzi or the basis of her statement. He confirmed that the documents produced by the 6th Defendant showing ownership did not demonstrate that the Plaintiff had sold the property to the 5th Defendant. Finally, he mentioned that it was only later that he became aware the property for which he held a title had been subdivided. 37.Upon the conclusion of the hearing, parties filed their respective submissions which form part of the record of this court. The court has considered the said submissions in the writing of this judgement. Issues for determination 38.Upon careful analysis the pleadings, documentary evidence, parties’ testimonies and submission by learned counsel, the following are the key issues for determination:a.Whether the Plaintiff holds an indefeasible title to Kajiado/Kaputei North/2966 and whether its subsequent transfer to the 5th Defendant and the resulting subdivision were procured through fraud, forgery, or procedural illegality.b.Whether the 7th Defendant acquired the suit property as a bona fide purchaser for value without notice and the legal effect of this status on the Plaintiff’s claim for the revocation of certificates of title.c.Whether the 6th Defendant’s counterclaim regarding the abuse of court process and professional misconduct is sustainable, and whether this Court has the requisite jurisdiction to determine disciplinary matters against advocates.d.What final reliefs, declarations, and orders as to costs should be granted to the respective parties in view of the evidence and the Court's findings. Analysis and Determination 39.Before commencing by determination on the issues I have identified for determination, I will first address myself on a procedural issue which stemmed from the party's testimony during the hearing. This issue concerns the joinder of the 5th Defendant in these proceedings yet he was already dead when this suit was filed. When the Plaintiff was questioned on this issue during cross examination, she responded as follows,“The 7th Defendant said he bought the land from a dead mzungu. The dead mzungu is the 5th Defendant. I sued the dead mzungu for record purposes. I did not expect the dead mzungu to defend himself.” 40.Wherever a party is wrongly enjoined in a lawsuit, Order 10(2) of the Civil Procedure Rules gives courts the discretionary power to strike them out from the proceedings. The issue of suing dead persons as Defendants was considered by A. Mbogholi Msagha J (as he then was) in Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] KEHC 1972 (KLR) while citing judicial pronouncement in Pratap Chand Mehta vs Chrisna Devi Meuta AIR 1988 Delhi 267 where the court made the following remarks;“…..if a suit is filed against a dead person then it is a nullity and we cannot join any legal representative; you cannot even join any other party, because, it is just as if no suit had been filed. On the other hand, if a suit has been filed against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void but the court has to strike out the name of the party who has been wrongly joined. If the case has been instituted against a dead person and that person happened to be the only person then the proceedings are a nullity and even Order 1 Rule 10 or Order 6 Rule 17 cannot be availed of to bring about amendment.” 41.This court finds that whereas the 5th defendant would have been an important, actually necessary party in these proceedings because he was adversely been mentioned by all parties he was already dead by the time of the filing of this suit. The suit against him is a nullity. The court makes a finding that the claim against him is legally unsustainable and proceeds to strike his name from the proceedings. a. Whether the Plaintiff holds an indefeasible title to Kajiado/Kaputei North/2966 and whether its subsequent transfer to the 5th Defendant and the resulting subdivision were procured through fraud, forgery, or procedural illegality. 42.The starting point in determining the sanctity of a title is Section 26 (1) of the Land Registration Act, No. 3 of 2012, which provides as follows:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 43.In this case, the Plaintiff (PW1) asserts that her title to the suit property was absolute and that she never executed any transfer in favour of the 5th Defendant. She has pleaded fraud and forgery with specificity. The law on the standard of proof where fraud is alleged is well-settled. In Vijay Madhubhai Patel v Tahir Sheikh Said & others [2015] eKLR, the Court of Appeal observed that:“It is now settled by a long line of authorities that any allegation of fraud must be pleaded and strictly proved. See Ndolo v. Ndolo (1995) LLR 390 (CAK). Although the standard of proof is on a balance of probabilities, the nature of the proof required is higher than in an ordinary civil case.” 44.From the evidence, the 5th Defendant was convicted in Criminal Case No. 2657/2013 for forgery of the suit property documents. Furthermore, the 6th Defendant (DW1) admitted that at the time he witnessed the signature on the transfer form, the transferor—the Plaintiff—did not appear before him. This admission is a direct contravention of the mandatory verification requirements. Section 45 (1) of the Land Registration Act (equivalent to Section 110 of the repealed RLA) stipulates:“A person executing an instrument shall appear before the Registrar or such other person as may be prescribed and, unless he is known to the Registrar or such other person, shall be accompanied by a credible witness for the purpose of establishing his identity.” 45.The failure of the Plaintiff to appear before the 6th Defendant to execute the transfer documents, coupled with the proven forgery in the criminal court, renders the initial transfer to the 5th Defendant an "illegal and unprocedural scheme" under Section 26(1)(b) of the Act. Consequently, the subdivision of the property into parcels 45336 and 45337, which flowed from this tainted title, is equally vitiated. Whether the 7th Defendant acquired the suit property as a bona fide purchaser for value without notice and the legal effect of this status on the Plaintiff’s claim for the revocation of certificates of title. 46.The 7th Defendant (DW2) seeks the protection of the court as an innocent purchaser. Parties relying on the defence of a bona fide purchaser are always quick to cite the decision in the case of Katende vs Haridar & Co Ltd (2008) 2 EA 173 by the Court of Appeal of Uganda which defined a bona fide purchaser for value without notice as follows;“For purposes of this appeal it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine he must prove that; 1.He holds a certificate of title; 2.He purchased the property in good faith; 3.He had no knowledge of the fraud; 4.He purchased for valuable consideration; 5.The vendors had apparent valid title; 6.He purchased without any notice of fraud; and 7.He was not a party to the fraud. 47.The Court of Appeal in the case of Mwangi James Njihia vs Janetta Wanjiku Mwangi & another (2021) EKLR, however, critically relooked into the Katende case in view of increased incidences of land fraud in Kenya and held that while the Katende case (supra), remains good law it needed to be revisited. The court stated that;“We nonetheless wish to state that the law, including case law is not static, and the above requirements which were crafted over 10 years ago cannot be said to have been cast in stone. We hold the view that (5) above will need to revisited and the word “apparent” be done away with altogether.We say so because in the recent past and even presently, fraudsters have upped their game and we have come across several cases where title deeds manufactured in the backstreets have, with collusion of officers in land registries, been transplanted at the lands office and intending buyers have been duped to believe that such documents are genuine and on that basis they have “purchased” properties which turn out to belong to other people when the correct documents mysteriously reappear on the register or the genuine owner shows up after seeing strangers on their properties waving other instruments of title. It is the prevalence of these incidents that have necessitated the current overhaul and computerization of the registration systems at the Land Registry in Nairobi.The elephant in the room is whether genuine, legitimate owners of property should be dispossessed of their hard-earned property, because a party has “purchased” land on the basis of an apparent title at the Land Registry which has been transplanted in place of the genuine one to re-emerge after the transaction.In our view no legitimate owner of property should be divested of their property unlawfully under the guise that the “purchaser” was duped to buy land which he/she believed to be genuinely owned by the person holding himself as the vendor.” 48.The 7th Defendant testified that he conducted searches in 1994 and 2011 which showed the 5th Defendant as the owner. He paid a consideration of Ksh 950,000. However, the Plaintiff argues that since the root of the title was a forgery, no valid interest could pass to the 7th Defendant. In Lawrence P. Mukiri Mungai, Attorney of Elizabeth Margaret Mungai v. Wangari [2011] eKLR, the court held that;“A certificate of title is not a mere piece of paper. It is a symbol of ownership. But that ownership is not absolute if it was obtained through a fraudulent process. If the title is born out of fraud, it remains a nullity and a subsequent purchaser, however innocent, cannot acquire a better title than the person who sold it to him.” 49.The above position aligns with the Supreme Court decision in Dina Management vs The County Government of Mombasa & 5 others (2023) eKLR, where the Court was emphatic that;“Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.” 50.While the 7th Defendant appears to have followed the procedural steps of a search and payment, the underlying transaction between the Plaintiff and the 5th Defendant was non-existent due to forgery. A forged document is a nullity and cannot form the basis of a valid transfer of interest in land. The 7th Defendant’s title is therefore susceptible to cancellation because the initial registration of the 5th Defendant was procured through a "corrupt scheme" as envisioned under Section 26(1)(b) of the Land Registration Act. c. Whether the 6th Defendant’s counterclaim regarding the abuse of court process and professional misconduct is sustainable, and whether this Court has the requisite jurisdiction to determine disciplinary matters against advocates. 51.The 6th Defendant alleges that the Plaintiff’s advocates committed professional misconduct by filing this suit. The jurisdiction to discipline advocates is primarily vested in the Advocates Disciplinary Committee under Section 60 (1) of the Advocates Act (Cap 16), which provides:“There is established a committee to be known as the Disciplinary Committee which shall consist of— (a) the Attorney-General; (b) the Solicitor-General or a person deputed by the Attorney-General; and (c) six members of the Society...” 52.Regarding the court's role in such matters, the court in Ombati v Law Society of Kenya [2014] eKLR stated:“The High Court and the Disciplinary Committee have concurrent jurisdiction in matters of discipline of advocates. However, where a statutory body has been established to deal with specific grievances, it is only prudent that the parties exhaust that machinery before approaching the court.” 53.The 6th Defendant’s counterclaim seeks general damages for reputational injury and a declaration of professional misconduct. For starters, this Court’s jurisdiction is limited to land and environmental matters as stipulated in article 162(2)(b) of the Constitution. This court finds and holds that the appropriate forum for allegations of professional misconduct is the Disciplinary Committee. Furthermore, as the Plaintiff has successfully demonstrated that her signature was verified in her absence—a fact admitted by the 6th Defendant—the suit against him cannot be termed an abuse of the court process. The 6th Defendant’s admission that the transferor did not appear before him provides a sufficient basis for the Plaintiff to join him in the suit to explain the circumstances of the verification. d. What final reliefs, declarations, and orders as to costs should be granted to the respective parties in view of the evidence and the Court's findings. 54.Having found that the transfer to the 5th Defendant was fraudulent and based on a forged signature, the Plaintiff is entitled to the recovery of her land. Under Section 75 of the Land Registration Act:“The Registrar shall rectify the register... (b) on the order of any court... (c) where the Registrar is satisfied that any entry in the register has been obtained by fraud.” 55.Consequently, the court makes the following orders:A.A declaration be and is hereby issued that the Plaintiff is the lawful and indefeasible proprietor of land parcel number Kajiado/Kaputei-North/2966 and that the purported transfer of the said property to the 5th Defendant was fraudulent, illegal, null and void ab initio.B.A declaration be and is hereby issued that the subdivision of Kajiado/Kaputei-North/2966 into parcels Kajiado/Kaputei-North/45336 and Kajiado/Kaputei-North/45337 was unlawful, unprocedural, and founded on a fraudulent transfer, and is therefore null and void.C.An order be and is hereby issued directing the Land Registrar, Kajiado, to rectify the land register by cancelling all entries relating to the transfer of Kajiado/Kaputei-North/2966 to the 5th Defendant and all subsequent subdivisions and registrations arising therefrom, including titles Kajiado/Kaputei-North/45336 and Kajiado/Kaputei-North/45337.D.An order be and is hereby issued directing the Land Registrar, Kajiado, to restore land parcel number Kajiado/Kaputei-North/2966 in the name of the Plaintiff.E.A permanent injunction be and is hereby issued restraining the 7th Defendant, whether by himself, his servants, agents, assigns or any person claiming through him, from entering upon, alienating, transferring, charging, selling, disposing of, or in any manner whatsoever interfering with the Plaintiff’s quiet possession, occupation, and ownership of land parcel number Kajiado/Kaputei-North/2966.F.The 6th Defendant’s counterclaim is hereby dismissed for want of merit with costs to the Plaintiff.G.The name of the 5th Defendant having been improperly joined after his demise is hereby struck out from these proceedings.H.The Costs of the suit are awarded to the Plaintiff as against the 1st, 2nd, 3rd, 4th, 6th and 7th Defendants jointly and severally.I.For avoidance of doubt, any titles, instruments, entries, transfers, mutations, or encumbrances arising from or connected to the impugned transfer to the 5th Defendant shall stand cancelled upon implementation of this judgment. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 13TH DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. James Owino h/b for Mrs. Eunice Akello for the 6th DefendantMr. Laciena for the 7th DefendantMs. Chesire h/b for Mr. Kipkirui for the PlaintiffCourt Assistant: AlexM.D. MWANGIJUDGE