[2025] KEELC 12 (KLR)

Gremmo & 4 others v Bora & 14 others (Environment & Land Petition E012 of 2012 & Environment & Land Case 56 of 2011 (Consolidated)) [2025] KEELC 12 (KLR) (16 January 2025) (Judgment)

Neutral citation: [2025] KEELC 12 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Petition E012 of 2012 & Environment & Land Case 56 of 2011 (Consolidated)

FM Njoroge, J

January 16, 2025

Between

David Gremmo & 3 others & 3 others

Plaintiff

and

Milena Bora & 6 others & 6 others

Defendant

As consolidated with

Environment & Land Case 56 of 2011

Between

Liana Tamburelli

Plaintiff

Suing in Her Capacity As The Administrator Of The Estate Of Giovanni Gremmo, Deceased As Well As In Her Own Capacity As Widow Of The Deceased

and

Milena Bora & 8 others & 8 others

Defendant

Judgment

Introduction. 1. The petition and the ordinary suit herein have been filed by a mother and her children respectively. In both the 1st respondent, who is also the 1st defendant in the suit, features prominently. Liana Tamburelli was married to Giovanni Gremmo and filed the suit on 30/5/2011 on her own behalf and on behalf of the estate of her late, lawfully wedded husband, Giovanni. Their children lodged the petition on 9/10/2012 on their own behalf as beneficiaries of Giovanni’s estate. It is alleged by all the claimants that Milena Bora had a long relationship with Giovanni which could not and which did not translate into a marriage but Milena insists she was a common law wife of Giovanni for 16 years. There is no doubt that Giovanni and Liana lived in separate residences, and also that the issues of their marriage used to visit Giovanni regularly in a house referred to as the matrimonial home by Liana. This is also the house in which Giovanni cohabited with Milena for many years before his demise.

2. On 8/9/14 Hon Angote J ordered that the petition be heard by way of viva voce evidence. Judgment for the petitioners was granted on 23/10/2015 but later set aside on 6/12/2017. On 25/4/2022 it was ordered inter alia as follows:a.That the suit and the petition be heard on the same date;b.The evidence in the suit be applied or used and adopted in the petition.

Pleadings in Petition 12 Of 2012 The Petition. 3. In Petition 12 Of 2012, the petitioners claimed that at all times they were the children of Giovanni Gremmo (deceased) who dies at Malindi on 18/12/2009, having been registered as proprietor of lands referred to as Gede Mijomboni/162 and Portion No 1757-malindi. Liana Tamburelli, his widow and mother to the petitioners, was appointed administrator of his estate in HC Succession Cause 23 of 2010. By the date of Giovanni’s demise he and Liana had separated and were yet to divorce or remarry. Their matrimonial home was on Portion No 1757-Malindi. The petitioners aver that the 1st respondent was only a friend to Giovanni and she was a wife to one Giancarlo d’ Alessi who is domiciled in Italy.

4. By the time of his demise Giovanni had made an inter vivos grant of half a share of the suit properties herein above to the 1st respondent. It emerged that a transfer dated 19/5/2009 had come into being. The said transfer was attested to by Mr Wameyo advocate. The 1st respondent also had applied for a land control board consent for transfer of the half undivided share vide an LCB application dated 16/2/2010 and consent was subsequently issued; that application was signed by a Ms Musinga, an advocate in the 6th respondent’s firm of advocates; a letter of consent was issued giving the 1st respondent a half share in Gede /Mijomboni /162. The transfer was registered on 1/3/2010. Also by an indenture dated 19/5/2009 drawn and witnessed by Mr Wameyo a half undivided share of Portion No 1757 –Malindi was transferred to the 1st respondent.

5. The petitioners aver that the transfer and the conveyance were fraudulent since the deceased had visited the 6th respondent’s offices only for the execution of a sale agreement in respect of Chembe/ Kibabamshe /366, and he paid legal fees only for that transaction while legal fees for the impugned transfer and indenture were paid after the demise of Giovanni. It is alleged that in his lifetime Giovanni never gave instructions regarding such transfer and indenture.

6. It is alleged that the LCB consent was obtained after the demise of Giovanni on the unproven allegation that he was abroad, and thus the execution of the LCB application on 16/2/2010 was fraudulent as the deceased died on 18/12/2009.

7. It is alleged that the indenture is also fraudulent. Another indenture dated 16/11/2010 conveyed the entire parcel no Portion No 1757 –Malindi to the 5th respondent.

8. Upon investigations the police found that the signatures of the deceased were forged and a foreign document examiner reinforced the said police findings. The 1st respondent was charged with forgery and later acquitted in Malindi Criminal Case No 59 of 2011 on the basis that the advocate who witnessed the documents could not be found.

9. It is also alleged that the 1st 2nd and 3rd respondents meddled with the estate to deprive the petitioner of their inheritance contrary to Article 40, that the 2nd and 3rd respondents facilitated the fraudulent scheme by registering the alleged fraudulent transfer to the 5th respondent by the 1st respondent of the entire of Portion No 1757 –Malindi. The 2nd respondent registered the transfer of the entire share to the 5th respondent despite knowledge that the 1st respondent only had a half share if any. The plot, being developed was also sold for a paltry 5 million shillings. The petitioners seek the following orders:a.A declaration that the letter of consent serial number 393950 dated 11th February 2010 is null and void ab initio;b.A declaration that the transfer giving one half share in Gede/Mijomboni /162 to the 1st respondent and registered on 1st march 2010 at Kilifi land registry by the 3rd respondent is null and void ab initio;c.An order that the 3rd respondent do forthwith rectify the register for Gede Mijomboni /162 to the 1st respondent and reinstate the name of Giovanni Gremmo;d.A declaration that the indenture of conveyance dated 19th march 2010 giving a half share in Malindi portion 1757 of the freehold interest therein to the 1st respondent and registered on 1st march 2010 at Mombasa land registry by the 2nd respondent is null and void for fraud;e.A declaration that the indenture of conveyance dated 19th march 2010 giving one half share in Malindi portion no 1757 of the freehold interest therein to the 1st respondent and registered on 1st march 2010 at Mombasa land registry by the 2nd respondent is null and void for fraud;f.A declaration that the indenture of conveyance that gave rise to the subject matter of the search issued by the 2nd respondent dated 16th November 2010 which certifies that the 5th respondent is the registered proprietor of the entire freehold interest in Malindi portion no 1757 at Mombasa land registry is null and void for fraud;g.An order that the 3rd respondent do forthwith rectify the register for Malindi Portion No 1757 and reinstate the name of Giovanni Gremmo;h.Any other relief that this honourable court may deem fit to grant;i.Costs.

10. The petition is supported by the affidavit of the 1st petitioner sworn for himself and the others with their authority. It reiterates the matters in the petition. It reveals that the petitioner’s father cohabited with the 1st respondent on Portion No 1757 in what is described as a mere adulterous union. Exhibited in that affidavit is a copy of the 1st respondent’s marriage certificate naming D’Alessi as her husband, the certificate of confirmation of grant naming Liana as the administrator of the deceased’s estate, criminal case proceedings in Malindi Criminal Case No 59 Of 2011 and various certificates of search regarding land and other documents.

1st Respondent’s Response 11. Milena Bora, the 1st respondent filed her replying affidavit dated 10/4/2018. She deponed as follows: she met Giovanni in 1995; they courted and she moved into his house on portion 1757 Malindi and lived there as husband and wife from 1996 till Giovanni died in 2009; she was aware Giovanni was separated from Liana, just as she was separated from her husband De Alessi; that both couples had not undergone divorce despite separation; in May 2009 Milena left for Italy and while there Giovanni told her she was to sign some documents at the 6th respondent’s offices. She executed the documents on 22/7/2009 at the 6th respondents offices; she saw that Giovanni had signed his part in those documents; Giovanni later fell ill; she took care of him while he was in hospital and at home; he referred to her as wife and next of kin in hospital documents; in August 2009 he was discharged to recuperate at home; in 2009 also he summoned his sons to see them; he later passed away on 18/12/2009 and Milena organized for his cremation which was done in the presence of his sons and then, overwhelmed by grief at her loss, she went to Italy. In 2010 upon returning to Kenya she was reminded of the need to pay funds to enable registration of transfers; she instructed Shariff, her friend to go pay the funds and the transfers were registered on 2/3/2010. She only came to know later that Giovanni had transferred the two plots to her out of his love and affection. Later on in 2010 she received a letter from an advocate demanding that she vacates the house, and soon thereafter she was arrested and charged with forgery; she was later acquitted on the basis of having no case to answer, and as she was low on funds she sold Plot No 1702 –Malindi to the 5th respondent. Malindi HCC Case No 56 of 2011 based on alleged fraud was commenced against her after acquittal, and the present litigation amounts to a second trial for the same alleged offence; also she opines that the present suit coming after the criminal trial, amounts to an appeal by the back door. She averred that interest in the suit properties passed to her upon execution of the transfers and they ceased being part of Giovanni’s estate.

Land Registrar’s Response 12. John Wanjohi Gichuki, the Land Registrar Mombasa land registry filed an affidavit dated 17/3/2015 in reply to the petition. He stated that Portion No 1757 was transferred to Giovanni Gremmo on 12/3/1997; that on 3/3/2010 Giovanni transferred his half undivided share to the 1st respondent; on 21/7/2010 Giovanni’s certificate of death was registered; on 16/11/2010 an indenture dated 15/11/2010 transferring the land to the 5th respondent was registered; the then Land Registrar one Mr Ingonga gave evidence in the criminal case against the 1st respondent; that on 23/12/2011 a High Court order of the same date was registered halting all dealings with the suit title; he denies the claims dragging him into an alleged conspiracy and he believes that it is for the 1st and 6th respondents to defend the claims of forgery; the documents mentioned in the petition were presented for registration at the lands office by the 6th respondent’s law firm and conspiracy, if any, any can not be attributed to the land registry which was diligent in its performance of its mandate.

Assistant District Land Registrar’s Response 13. Anthony Tune Karani, the Assistant District Land Registrar Kilifi also filed a replying affidavit dated 17/3/2015. He deponed that Gede/Mijomboni/162 was transferred to Giovanni on 15/9/2006, and on 2/3/2010 Giovanni transferred his half undivided share to Milena. A restriction was registered on 10/1/2011 under Section 136 of the RLA following a letter from the police department. The deponent avers that he gave evidence in the criminal case against Milena, and adopted his evidence given therein verbatim. He stated that he learnt of Giovanni’s demise from the Criminal Investigation Directorate officers. He also denied that the land registry was involved in any conspiracy.

5th Respondent’s Response. 14. Omar Salim Abdalla, the 5th respondent, swore a replying affidavit dated 29/1/2018 on his own behalf in opposition to the petition in which he deponed as follows: he knew that Milena was a common law wife to Giovanni for 19 years; Milena has challenged the grant to Liana; at the time of Giovanni’s death interest in the suit property had passed to Milena and did not form part of his estate; he never participated in the transaction relating to Portion No 1757; transfer of interest passes on execution of transfer by the transferor; he purchased Portion No 1757 from Milena as a bona fide purchaser for value without notice and that the court lacks power to deprive him of his acquired property in the suit land.

6th Respondent’s Response 15. Musinga & Co Advocates the 6th respondent filed a reply to the petition, dated 4/5/2018. They averred that Giovanni appeared before Mr Wameyo, an advocate in the law firm, on 19/5/2009 and voluntarily executed conveyances that transferred a half share of the suit properties to Milena, and also executed the application for the Kilifi Land Control Board consent in respect of Gede/Mijomboni/162, which was lodged with the board posthumously in February 2010. The land board consent was therefore issued upon instructions of Giovanni. The indenture for Plot No 1757 was also prepared as per Giovanni’s instructions. Milena executed the transfers after the demise of Giovanni and also delayed in depositing stamp duty funds and other fees hence the delay in registration; penalties for late payment were made to the tax authority; the firm thus denied involvement in any fraud or any intention to deprive the petitioners of property as it had instructions, and further, the petitioners being mere third parties are estopped from laying any claim against the advocates firm since there was a client/advocate relationship between it and Giovanni. The 6th respondent became aware of Giovanni’s demise in 2010 during criminal investigations into the transactions which led to a criminal case in which Milena was acquitted; that it is disingenuous for the petitioners to selectively agree that the two sale agreements were signed by their late father while rejecting his alleged execution of the transfers on the same date. It is averred that the petition against the legal firm is bad in law for the reason that the principal has been disclosed and the firm being the agent need not be dragged into this litigation. The 6th respondent also questioned why a family dispute has overflowed into the court as a constitutional petition and avers that it does not meet the jurisprudential threshold for a constitutional matter and raises mere academic issues. It is averred that the petitioners lack locus standi for allegedly presenting themselves as sole beneficiaries of the Giovanni estate while High Court Succession Case No 78 of 2010 is still pending; that on 16/2/2016 the High Court recognized Milena as the common law wife of Giovanni, which fact the petitioners have deliberately refused to disclose to this court thus giving them unclean hands.

16. Lily K. Musinga an advocate and managing partner and proprietor of the 6th respondent law firm filed a replying affidavit dated 3rd May 2018 which reiterated the matters in the 6th respondent’s reply to the petition which has been analyzed above. She was kept abreast of the developments in the subject transactions by Mr. Wameyo. She stated expressly that Giovanni, a longtime client with her law firm, came to the office of the law firm and she was informed that he was buying plot numbers Chembe Kibabamshe 250 and 366 from Robert Kenga Mranzi and Johnson Mutana Kalama respectively. She was also unaware of Giovanni’s demise until police began investigating the transfers to Milena. She denied that her legal firm was involved in any fraud.

William Wameyo’s Response. 17. Besides the above responses from the 6th respondent, it is noteworthy that William Wameyo of the 6th respondent also filed an “affidavit of fact” dated 19/4/2017. He deponed as follows: he worked with Musinga & Co Advocates between 2006 –march 2013; while there he met Giovanni who was brought by one Shariff Al Muftah who acted as interpreter since Giovanni could not speak English; Shariff informed him that Giovanni intended to transfer a half share of his properties to Milena who was supposedly his wife; that Wameyo went through the documents Shariff gave him and prepared the transfers; two old men who were selling Giovanni plots in Kilifi were also present; Milena was absent; Giovanni signed the transfers in Wameyo’s presence saying that Milena would come later to sign and pay fees; Giovanni also signed two sale agreements on the same day. A few months later Milena came to the office and signed her part but paid nothing saying she was not aware of payments whereupon Wameyo sent her to inform Giovanni of the need for funds for registration and other charges. In March 2010 Shariff came to the office and deposited stamp duty and late registration penalty fees for Milena without informing Wameyo of the demise of Giovanni. Transfer was effected and Wameyo called Milena to collect the original title. Later in December 2010, police came looking for Wameyo and that is when he learnt that Giovanni had died in 2009. He was not summoned to testify in the case against Milena. Later he was served with summons to enter appearance in HCCC 56 Of 2011.

Pleadings in ELC 56 of 2011. Amended Plaint 18. In the amended plaint dated 21/12/2011 in HCCC NO 56 of 2011, Liana Tamburelli sued Milena Bora and Hashim Sat, Chief Land Registrar, Land Registrar Kilifi, Registrar of Coast Land Titles, Principal Registrar of Titles, Commissioner of Lands, the Attorney General and Omar Salim Abdalla. Her claim is that at all material times she was married to Giovanni and they were blessed with three children who are beneficiaries of the estate of their late father; during their visits to Kenya they used to stay with Giovanni on land parcel known as Portion Number 1757 (Original NO 1702/1) which was the couple’s matrimonial home. Liana used to live, with the consent of Giovanni, away from that plot in what is called the “Shella Residence”. According to the plaint Milena had an extramarital relationship with Giovanni and she lived in various residences including the Melina Residence which the deceased had contributed to the construction of, but which contribution Milena has concealed.

19. It is pleaded that Giovanni loved art and adorned his house with many art pieces he had collected and had accumulated a considerable amount of imported furniture and household accessories acquired for the use of the family, and which Milena continued to hold onto after Giovanni’s demise. Liana maintains that Milena held them for the benefit of Giovanni’s estate. However, she removed them dishonestly and disposed of them. Milena was married to De Alessi and no transfer of property could occur between her and Giovanni save by way of sale since their relationship was illicit.

20. On 19/5/2009 Giovanni went to Wameyo advocate in the company of Johnston Mutana Kalama and Robert Kenga Mranzi from whom he was to purchase a parcel of land, Chembe/ Kibabamshe /366. It was later alleged that on the same day Milena went to the same advocate and she and Giovanni executed transfer of an undivided share in each of the following plots: Portion No 1757 and Gede /Mijomboni/ 162. The plaintiff claims that those transfers, and the subsequent registration of Milena and Giovanni as joint owners of those properties are fraudulent and that alternatively, the transfer of the half shares of both properties was calculated to deprive the estate the right to the said property for the following reason:a.At the time of execution Milena was in Italy though the documents misrepresent that she was in Kenya;b.Registration of joint proprietorship entitled her to own the entire property upon Giovanni’s demise;c.The signatures on the transfer instrument do not belong to the deceased;d.None of the transfers indicated the property value;e.The government was cheated out of stamp duty.

21. It is claimed that the transfer of Portion No 1757 was done with the connivance of the 2nd defendant who was the Registrar of Lands Mombasa then and who acted without or in excess of jurisdiction as he had not been appointed under Section 56(2) of the RTA Cap 282 to register properties under that Act. It is also alleged that the 2nd defendant registered a document that did not disclose its value.

22. Further alleged particulars of fraud and concealment are that by the time Milena lodged the transfer for Portion No 1757 for registration, Giovanni was deceased; that her only claim to the house on Portion No 1757 was limited to a claim of 46,629. 53 pounds allegedly owed her by the deceased, and the deceased had a wife and children who were the true beneficiaries of his estate. The plaintiff further pleaded that the transfer of the Portion No 1757 was effected with the connivance of the 1st, 2nd and 5th defendants for the reasons inter alia, that the original indentures and other documents evidencing ownership are still in the possession of the plaintiff, and the 2nd defendant failed to demand their production at the time of registration; the 2nd defendant exercised jurisdiction over Portion No 1757 situate in Malindi while his jurisdiction is confined to Mombasa and so exceeded his territorial jurisdiction while he still lacked rank jurisdiction to handle registrations under the RTA as earlier stated. It is alleged that the 2nd defendant succumbed to the influence of the 1st defendant and so acted unlawfully. The Registrar of Coast Land Titles is alleged to have failed to act when the above irregularities were brought to his notice in May 2010 vide a letter.

23. The plaintiff claims that the 1st defendant’s claim to ownership of the parcel Portion No 1757 is an afterthought and her conduct portrayed that fact because in March 2010 after demand to vacate was made the 1st defendant indicated she was waiting for authority of the estate to remove the items she was to carry away to her house. She had claimed to be the common law wife of Giovanni while the latter was married to the plaintiff; she had also been reluctant to enter the house suggesting she had no right.

24. It is also alleged that the transfer of a half share of Gede Mijomboni /162 to the 1st defendant was also fraudulent for the reasons, inter alia, that no consent was applied for and none was issued under Section 6 of the Land Control Act within 6 months of 19/5/2009. Upon the demise of Giovanni, even Lily Musinga, his advocate could not sign the LCB application forms on the estate’s behalf; further the consent ought to have been refused according to the plaintiff, under Section 9(1) (c) (i) of the LCA Cap 302 it is stated that the Bahari Land Control Board lacked jurisdiction over the land. Also, discrepancies in the dates on the application and the consent, such that the consent appears to have been issued before the application was made, are also singled out as further evidence of fraud. It is also alleged that there was no land control board meeting on 16/2/2010. The transfer was alleged to have been effected with the connivance of the 1st and 4th defendants who glossed over the alleged fundamental defects in the documents presented for registration as outlined herein above and effected the transfers.

25. The plaintiff avers that the 1st defendant leased out the house on Portion No 1757 and that moneys received as rent were part of the estate for which she is liable and for which it is unconscionable for her to retain. It is said that the actions of the 1st defendant were aimed at unjustly enriching her and she deliberately concealed the plaintiff’s interest in the suit properties.

26. It is also pleaded that on 15/11/2010 the 1st defendant fraudulently sold the Portion Number 1757 valued at approximately Kshs 20, 000,000/= to the 9th defendant for a gross undervalue of Kshs 5,000,000/=.

27. The following prayers are sought:i.A declaration that the 3rd -7th defendants inclusive owe the plaintiff a duty of care and a duty to maintain proper records and adhere to strict established legal procedures in execution of their duties as custodians of records relating to the plaintiff’s land;ii.A declaration that the 1st defendant is not a wife to the deceased and is not entitled to inherit from the estate;iii.A declaration that the house erected on portion no 1757 Malindi was the matrimonial home of the plaintiff and her deceased husband;iv.That the 1st defendant accounts for and returns to the plaintiff all and any property of the estate removed by the 1st defendant from the house erected on portion 1757 Malindi;v.A declaration that the purported transfer of the undivided share of portion no 1757 from the deceased to the 1st defendant is void;vi.An order directed to the defendants jointly and severally to take all necessary steps to rectify the records held in relation to portion 1757 by expunging or cancelling the purported registration of the 1st defendant as the proprietor of the said parcel;vii.A declaration that the purported transfer of the undivided share of title number Gede/Mijomboni/62 from the deceased to the 1st defendant is void;viii.An order directed to the defendants jointly and severally to take all necessary steps to rectify the records held in relation to title number Gede/Mijomboni/162 by expunging or cancelling the purported registration of the 1st defendant as the proprietor of the said parcel;ix.An order directed to the 1st defendant to disclose the extent of the estate’s contribution to the development of the Melina Residence and in a portion known as Chembe/Kibabamshe/402 and payment to the estate of the sum due and in the alternative this court do determine the fair value of the estate’s contribution and order the payment to the estate of the sum due to it;x.An order that the defendant accounts for any money held and or received by her in the joint account aforesaid and or in any other account set up by both the deceased and the 1st defendant and an account of the rent received in consequence of the lease of the house on portion 1757 and a consequential order for the payment to the estate of the sum found to be due to it;xi.An order that the plaintiff is entitled to trace any money received by the 1st defendant upon disposal of any of the properties of the deceased and the delivery up to the plaintiff of paintings sculptures and works of art held by the 1st defendant in trust for the estate;xii.General damages;xiii.Punitive and exemplary damages;xiv.Costs;xv.Interest as pleaded in the body of the plaint.xvi.A declaration that the purported transfer of the portion no 1757 to the 9th defendant is void;xvii.An order that the 9th defendant be injuncted from dealing with portion no 1757 and all improvements thereon;xviii.An order for inspection of portion no 1757 Malindi and all the developments thereon for the purpose of ascertaining their state and value.

1st Defendant’s Amended Defence and counterclaim 28. Milena Bora, the 1st defendant, filed the above pleading dated 1/3/2022 and denied the claim. She denied that the plaintiff is the proper administrator of the deceased’s estate. She stated further as follows: the deceased had since separated from the plaintiff for 16 years hence the plaintiff was living in the Shella residence; her relationship with Giovanni was not secret and was with the plaintiff’s consent and they lived as man and wife for 16 years at the Melina Residence as their matrimonial home and on other properties jointly owned by her and the deceased; that the deceased’s contribution if any, to the construction of the Melina Residence which she owns was voluntary and charitable and so the plaintiff cannot claim any right to it; that the items in the house on portion 1757 were purchased during the pendency of her relationship with Giovanni and she has a right to them; that the account with Kenya Commercial Bank was in her name but the deceased had a signatory access to it. In her counterclaim, she posited that the transfers dated 19/5/2010 are valid and prayed that Portion No 1757 Malindi and Gede/Mijomboni/162 be declared to be validly registered in her name and that she had legal and proprietary interest in the said properties.

Reply to 1{{^st}} Defendant’s Defence 29. The plaintiff filed a reply to this defence on 9/8/2011 denying that she had separated from her husband and re-asserting that Milena’s relationship with Giovanni was merely extramarital as neither had capacity to contract a marriage during coverture; that the only jointly owned property Milena had with the deceased was the Melina Residence. She denied that Milena was either a wife or a dependant of the deceased or that she was a beneficiary of his estate.

3rd -8th Defendants’ Defence 30. The 3rd -8th defendants filed a defence dated 13/1/2012. They denied the claim entirely and pleaded that no notice of intention to sue had been issued under Section 13 A of the Government Proceedings Act.

9th Defendant’s Defence. 31. The 9th defendant filed his defence on 17/2/2012 and denied the claim. He stated that he followed all laid down procedures while purchasing the Portion No 1757 Malindi from the 1st defendant and is thus an innocent purchaser for value without notice. He terms the claim as scandalous and vexatious.

32. The plaintiffs filed a reply to amended defence and defence to counterclaim on 14/6/2022 in which they joined issue with the 1st defendant’s defence and maintained that there was fraud.

EVIDENCE. Evidence for The Claimants. 33. During the hearing the 1st petitioner (testifying on behalf of all the petitioners), and the plaintiff gave evidence as PW1 and PW2 respectively briefly adopting the matters set out in their filed documents and producing various exhibits. They were also cross-examined. They maintained that Giovanni never sold or gifted the suit properties to any person, that he could not have executed a letter of consent and the indenture long after his demise; that the photograph on the indenture is not a true passport photograph but a scanned and modified copy of an ordinary photograph. Liana maintained that she is the administrator of the estate of Giovanni. She stated that the house belongs to her children. Upon cross-examination, both witnesses said they were not aware that the grant to Liana had been nullified.

Evidence for The Defence. 34. The 1st defendant, also the 1st respondent, testified and adopted her witness statement dated 2/3/2022 as her evidence-in-chief and produced documents. She admitted that the petitioners are Giovanni’s children and the plaintiff is the widow. She claimed to have been the one attending to Giovanni as at the time of his death and that she was his next of kin. She admitted that the transfers were registered after Giovanni’s demise. She maintained that the suit property is not an inheritance of the petitioners and plaintiff. On cross-examination she admitted that by the time of Giovanni’s demise, she was married to and Giovanni’s was married to Liana. She denied having taken the suit properties fraudulently and reiterated that they were gifted to her by Giovanni on 29/7/2009 before he died. She did not recall if she appeared before the Land Control Board to obtain a consent. She claimed that she left the house on Portion No 1757 Malindi due to death threats and that she sold it during the pendency of the present litigation. She admitted that Giovanni had been given 2 shares in Melina Investments Ltd owing to his help. On re-examination she stated that she did not know who dated the transfer but she signed it on 29/7/2009, and deviated from her earlier statement regarding death threats and averred that she left the house upon receiving a demand letter from the petitioners’ advocate.

34. DW2 John Wanjohi Muchoki, a former Principal Land Registrar, gave evidence and adopted his affidavit dated 17/3/2015 filed in the petition and the annextures thereto attached.

36. On cross-examination he stated that registration of a transfer requires production of evidence of stamp duty payment, consent to transfer and the original title. He added that if the original title is lost the owner reports to the police and gets a police abstract after which the Land Registrar advertises the loss. If there is no objection, then a provisional title is issued. He was not the one who registered the transfer. He stated that according to land records from the parcel file Giovanni transferred a half undivided share to Milena; that if by the time of the transfer Giovanni was deceased the process should have been effected through succession and transmission. According to him the fact of Giovanni’s demise was concealed and was not recorded in the land registry and the transaction was void. According to him there is a transaction between Milena and Omar Salim Abdalla in which consideration was marked as Kshs 5,000,000/. According to him, this was a gross undervaluation and Kshs 23,000,000/- upon a forced sale would have been more apt for the plot measuring 0. 80 of an acre.

37. DW3 Anthony Karani, Assistant Land Registrar, testified and adopted his replying affidavit dated 17/3/2015 as his evidence-in-chief. According to him the transaction required a Land Control Board consent, KRA PIN, IDs, proof of payment of stamp duty and registration fees and an executed transfer. The transfer was presented for registration on 2/3/2010 and DW3 registered it. Penalty for late stamp duty payment was paid on 1/3/2010. KRA PIN for Giovanni and Milena were produced, as was a LCB application for consent. The meeting for the LCB Consent was according to him held on 11/2/2010 for transfer of a half undivided share. The date of the transfer given in the valuation form is 15/2/2010 yet he registered the transfer on 2/2/2010. He stated that he was not aware of Giovanni’s demise as at the time of the registration of the transfer. He stated that the real purpose of requiring the supporting documents in transactions is to ascertain that the actual persons were transferring the parcels in the transaction. Milena’s ID card copy was not however attached. Where a registered owner is deceased there has to be succession proceedings, but there was no evidence of succession proceedings in the land registry and no disclosure that Giovanni had died. He agreed with proposition by counsel that the transfer was void.

38. DW5 William Wameyo testified on behalf of the 6th respondent and adopted his witness statement dated 25/5/2022 as his evidence-in-chief. He confirmed that Giovanni executed the transfer in his presence.

39. Upon cross-examination he admitted that Milena was abroad when the transfer was executed by Giovanni; he was uncertain of the date on which she returned to Kenya. He admitted that the date on the transfer does not reflect the actual date she signed it. He admitted that the application for LCB Consent was signed by Lily Musinga on 16/2/2010. He admitted that advocate/client relationship is not a purely agency relationship but professional, and that it terminates upon the demise of the client. Though he was of the view that Lily Musinga would not have executed the LCB application for consent form, nevertheless, he insisted, in a rather contradictory fashion, that she had authority to execute the application for LCB consent. He also could not recollect whether a representative of the firm appeared before the Land Control Board for the consent. His attention was drawn to the criminal case proceedings which indicated that he had attended the Land Control Board meeting on behalf of both parties and where Kazungu, a witness had said that DW4 therein had told the LCB meeting that Giovanni was abroad, and he dismissed that as Kazungu’s evidence and not his. When questioned regarding the apparent gross undervalue of the Portion No 1757, he stated that selling at a fraction of the real value is not necessarily evidence of fraud and that in any event he did not know that there was a claim pending in court then. However, he admitted, without further elaboration, that by the time of the sale, his law firm had received some correspondence over the suit property. In re-examination he also defended the consideration saying that the valuation availed by the plaintiff occurred some 4 years later and there was bound be some difference in value, and that in any event only a portion of the property was being transferred. He further stated that he was never summoned to testify in the criminal case. He confirmed that he never attended the Land Control Board, but consent was nevertheless issued.

Evidence for The 9th Defendant. 40. The 9th defendant did not testify. Mr Matheka appearing for him drew the attention of the court to the fact that he had not filed any witness statement and applied to have his case closed.

41. Parties were ordered to file submissions. The petitioner filed submissions dated 30/4/2024. The 2nd 3rd and 4th respondents filed their submissions dated 29/9/24. The 1st respondent filed submissions dated 30/9/24. I have read and considered those submissions while preparing the present judgment.

Determination. 42. It is not in dispute that:a.Giovanni Gremmo owned the suit properties Portion No 1757 Malindi and Gede/Mijomboni /162, died on 18/12/2009 and was survived by three children and a widow who are the petitioners herein and the plaintiff respectively;b.That as at the time of his demise Milena Bora had not divorced her husband D’ Alessi of Italy, but lived with Giovanni for many years prior to his demise;c.That as at the time of Giovanni’s demise he was separated from Liana and they lived in separate residences in Malindi;d.That Giovanni’s children used to stay with Giovanni in Portion No 1757 Malindi upon visiting Malindi from Italy;e.That a grant of letters of administration to Giovanni’s estate was issued to Liana Tamburelli and later confirmed on 17/12/2010;f.That Giovanni helped in the construction of the Melina Residence in Watamu occupied by Milena Bora;g.As at the date Giovanni is said to have executed the transfers over the two suit properties Milena was abroad:h.That transfers in respect of the two suit properties were registered after Giovanni’s demise;i.That neither Giovanni nor his advocate William Wameyo never attended the land Control Board Meeting that is said to have issued the letter of consent to transfer a half share of one of the suit properties;j.That Milena also never attended the Land Control Board meeting that purportedly issued the LCB consent to transfer;k.That during Milena Bora sold and transferred Portion No 1757 to Omar Salim Abdalla, the 5th respondent for Kshs 5,000,000/= which was a gross undervaluation; that the transfer to Omar was registered on 16/11/2010 while the plaint had been filed on 30/5/2011;l.That the 6th respondent law firm drew the legal documents and handled the transfers of the suit properties, including the transfer to Omar, to the last conclusion;m.That Ms Lily Musinga of the 6th respondent law firm executed the application for the Land Control Board;n.That Milena Bora was arraigned in court on charges of forgery of transfer in respect of parcel no Gede/Mijomboni /162 and acquitted on the basis of no case to answer (Section 210) on 7/6/2012;

43. Some matters pleaded, e.g. at para 32 of the plaint are not within the mandate of this court as conferred by Article 162(2) (b) and Section 13 (2) of the Environment and Land Court Act and thus ought to be taken to the right forum, and will not be addressed in this litigation.

44. The issues arising for determination in both the suit and the petition as heard together are as follows:a.Were the transfers registered against Portion No 1757- Malindi and title No Gede/Mijomboni/162 in favour of Milena Bora and the subsequent transfer of Portion No 1757- Malindi from Milena Bora to Omar Salim Abdalla fraudulent and if so, which of the defendants/respondents were complicit in the fraud?b.Should the 1st respondent/defendant be compelled to account for any funds held and received by her in respect of rent received from Portion No 1757- Malindi?c.Should the court compel the 1st defendant/respondent to disclose the extent of the deceased’s contribution to the developments on Chembe/Kibabamshe /402 also known as the Melina Residence?d.Whether the rights of the petitioners under article 40 of the constitution have been violated;e.Whether the plaintiff in Malindi ELC 56 of 2011 entitled to general, punitive and exemplary damages?f.What orders should issue on the plaint, petition and counterclaim?

45. Regarding issue, no (a) it was stated as follows regarding fraud in the case of Kinyanjui Kamau –v- George Kamau [2015] eKLR: -…it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in Criminal Cases…” In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”

46. Similarly, in Koinange & 13 others vs Charles Karuga Koinange 1986 KLR the court held that:"When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”

47. Section 26 (1) of the Land Registration Act provides as follows:The Certificate of Title issued by the Registrar upon registration … 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… 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; orb.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

48. This court is satisfied that the particulars of fraud have been specifically pleaded in the plaint. The task now before court is to assess whether the particulars have been proved by way of evidence.

49. As to whether signatures that were on the transfer and indenture respectively were forged the claimants say, which is not denied, that Milena was away in Italy on the date those documents are alleged to have been executed; thus she was not available in Kenya to execute the same. On cross-examination Milena stated that she could not remember when she executed the documents; on re-examination she averred that she executed the same on 29/7/2009 which latter answer this court finds, on an examination of the circumstances of the case, was an afterthought. This court holds on to the first response, that she did not know the date on which she executed the documents, and therefore the most certain thing is that she never signed them on 29/7/2009 which is irregular. The document having been dated 19/5/2009, any contradictory evidence is improper. Documents ought to be executed on the dates appearing on them and any other date is a misrepresentation, and in this case, the correct dates of execution matter a great deal because the transfers were allegedly between two persons and one is already deceased and is not a witness to this case. To make it worse, he is the alleged transferor, which bequeaths the alleged transferee with the burden of proving the authenticity of the transfers. To her detriment, Milena has failed to establish the date on which she executed the transfer in the midst of fraud accusations. Her own advocate Wameyo testified that he was certain that the date appearing on the transfer is not the date on which she signed it. He was not even certain of when Milena came back to Kenya. Execution of a transfer by not one but both parties, even if the same is not registered, ensures that the transaction is complete and that interest has passed to the transferee; hence in the present proceedings, if at all Giovanni being the transferor had executed the transfers, his demise before completion of the transaction and the uncertainty of the date of execution by the transferee, demands that the transaction should have been continued between Milena and the beneficiaries of the Giovanni’s estate, which never happened.

50. Secondly, the claimants contend that what is purported to be Giovanni’s signature on the transfer documents for Portion 1757 and Chembe/Kibabamshe/162 is a forgery. Much has been made by the respondents of the claim that Giovanni executed two agreements for Chembe Kibabamshe /250 and 366 on 19/5/2009. Unfortunately, those plots are not the subject matter of this suit and this court is not able, and there is no legal authority or even logical justification for the call, to validly draw the implication that because the claimants do not object to those signatures on those agreements, then they have no right to object to the signatures on the conveyances in respect of the suit premises.

51. One of the captivating assertions by the claimants is that even on a casual visual examination by an untrained or layman’s eye the signatures on the two agreements dated 19/5/2009 differ considerably from those on the conveyance documents bearing the same date. On this court’s part, it agrees that even a casual look at the 2 signatures on the transfer of undivided half share in respect of Gede/ Mijomboni/162 not only differ from one another, but also vary greatly with the signatures on the two agreements dated 19/5/2009 to the extent that it is quite doubtful that they were made by one hand and on the same date; besides the claim as to a casual visual examination, the claimants rely on an expert report from a Document Examiner, Mr. E. K. Kenga from the Directorate Of Criminal Investigations dated 7/6/2010 which supported the position that the signatures on the conveyances were forged while the respondents brought no expert report to court as evidence. I have perused the evidence of PW6 (Jeremiah Ndubai) and PW8 (Emmanuel Kenga) in the Malindi Criminal Case No 59 Of 2011 preferred against the 1st respondent for forgery and I find that the proper procedures were followed in the subjecting of the specimen signatures to examination and production of a report, and as said earlier, that report has not been countered by any other expert report from the respondent’s side. It is strong evidence that the claimants have brought before this court of the fact that Milena was arraigned before court of law on a charge of forgery in which the expert report was relied on. It matters not that Milena was acquitted as upon reading the criminal case acquittal ruling it is evident that the acquittal, based on other considerations, did not discredit the expert document examiner’s report. In the circumstances, the expert document examination report by Mr E.K. Kenga supports what the eye can casually see on a casual examination and is of great probative value in this case. In the face of the foregoing, it is not credible when the 1st and 6th respondents in the petition maintain that the signatures on both the transfer and conveyance documents dated 19/5/2009 in respect of Gede/Mijomboni/162 and Portion No 1757 respectively were made on that date and by Giovanni.

52. It has also been alleged that Milena’s conduct, in failing to contest the grant to Liana, was also indicative of fraud. It has been asserted that Milena knew she was not a wife to Giovanni and that the latter had a wife and children. This court has seen a grant to Liana dated 15/12/2010 and a certificate of confirmation dated 17/12/2010. This court is not a succession court but it is alive to the assertion that the said documents were not challenged. The certificate of confirmation of grant lists the suit properties herein and distributes them equally to the three petitioners and it is remarkable that the plaintiff excluded herself therefrom in favour of the petitioners.

53. It was not possible to establish, owing to the nature of the hearing that was undertaken in this case, whether it is true as the claimants assert, that the original indentures evidencing Giovanni’s proprietorship of the suit lands, are still with plaintiff; those originals were not produced; only copies of the same were filed and produced. However, it is relevant that there is at least a letter by Muli & Ole Kina Advocates dated 5/3/2010 whose contents suggest that Milena had taken the title document for the Gede property. I find no basis upon which to hold that the claimants were in possession of the original indentures for Portion No 1757. I therefore find that the claimants have failed to establish that claim.

54. It is important to scrutinize the claim that all what Milena was entitled to was repayment of a debt of 46,629. 53 pounds and not the suit properties. It is stated by PW7 in the criminal case against Milena, that is Alfred Shangia Menza, that in 2010 he was sent by Liana to Milena to collect from her the title deed for the Gede plot but she stated that she would only give information on where that title was upon being paid her debt, and that claim for repayment was reinforced by a letter from her advocate setting the debt amount at 40,000 pounds. I have seen such a letter dated 24/2/2010, but it is not from an advocate but from AAC Kenya Certified Accountants on behalf of Milena, signed by one Mr Aboo, stating that she wished to stay in the house on Portion No 1757 until her debt of 46,629. 53 pounds used for and owed by Giovanni was paid. The same Mr Aboo features in minutes of the meeting of Melina Investments Ltd dated 10/3/2011. There is also a letter from K. A. Kasmani & Co. Advocates dated 10/3/2010 suggesting such credit arrangements and asserting that Milena had already advanced Giovanni 65,000 Euros. However, this court hardly thinks that that correspondence per se would in the absence of any other evidence be conclusive proof that Milena had no claim or did not wish to pursue a claim with regard to the suit properties as at the time the said letters were authored.

55. The next point in this controversy as to validity of the conveyances to Milena relates to a supporting documents involved in their registration, and the execution of these. These are the application for Land Control Board consent and the consent to transfer. According to the claimants, 1) the application for LCB consent was made after 6 months from date of transfer and was invalid; 2) secondly, it was executed by a third party on the false allegation that Giovanni was abroad; 3) thirdly, it is alleged that it is invalid too for not having been executed by Giovanni but by an advocate and thus without instructions; 4) fourthly, the execution is said to have been after the demise of Giovanni such that he could not have given instructions, hence there would have been need for propriety by seeking the execution by the administrator of his estate; 5) fifthly, it was stated that there was neither attendance by Giovanni (he being deceased by the date of the alleged LCB meeting) nor by his advocate or any other person on his behalf when the meeting took place; 6. ); Sixthly, that the land control board that issued the consent lacked territorial jurisdiction to issue the same.

56. Regarding the first point of objection, it is posited that the transfers were allegedly executed on 19/5/2009 and the application is dated 16/2/2010. The latter date must be taken to be the date Lily Musinga is claimed to have executed the document notwithstanding Mr William Wameyo’s contention in cross-examination by Mr Ole Kina that the date is not clear on his copy. Section 8(1) of the Land Control Act provides as follows:8. Application for consent(1)An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto...”

57. Obviously, whatever date the meeting took place then, the application for the consent of the land control board was clearly time barred contrary to Section 8 of the Land Control Act.

58. Regarding the second third and fourth points though, there was no other corroborative evidence adduced to show that Ms Lily Musinga executed the application herself because Giovanni was claimed to be abroad - which was untrue because he was already deceased by 16/2/2010. However, what matters is that by that date and irrespective of whether he had executed a land transfer form for Gede/Mijomboni/162 during his lifetime, Giovanni being deceased, only his administrator could have validly executed any application for a Land Control Board consent on behalf of his estate. The evidence of William Wameyo, PW4 in this case captured that fact when he testified as follows under unrelenting cross-examination from Mr Ole Kina:I subsequently learnt after we had completed the transfer that Mr Gremmo had died. Gremmo is said by that document (P. Exh 2) to have died on 18/12/2009. Advocate/client is not purely agency relationship. It is professional. An advocate client relationship terminates upon demise of client. She (Lily Musinga) would not have signed the document had she known that Giovanni was deceased.”

59. The application for LCB consent was thus executed without instructions from the administrator of the estate and is thus invalid for the foregoing reason. It must be recalled clearly however that it is not really Ms Lily Musinga who was handling the transactions in question in this dispute but Mr Wameyo and any execution of the LCB application form must have been prompted by Mr Wameyo. However, he was working in that firm, he bound it to his acts or omissions in the transactions.

60. The other two points are that there was neither attendance by Giovanni (he being deceased) nor by his advocate or any other person on his behalf when the meeting took place, and that the Land Control Board that issued the consent lacked territorial jurisdiction to issue the same. It would be unusual and quite worrisome in this age of rampant land fraud that a Land Control Board consent that is instrumental in disposal of real property can be issued without the presence of parties applying for the same. The respondents needed to come out strongly and refute such a serious allegation by exhibiting minutes that could have showed that the LCB meeting took place and that Giovanni’s representative attended it, but they never did. Though there is no evidence from the claimants to support the claim that the Board that purportedly issued the consent lacked jurisdiction, there is also no evidence from the respondents to show that the consent is rooted in a genuine approval reflected in LCB minutes at which a representative of the deceased attended. And even perchance that had been done, the very fact that it was not the appointed administrator of the estate of Giovanni who executed the LCB application attended that meeting would still have rendered the consent emanating from that meeting and minutes invalid. The consent of 11/2/2010 is thus null and void; consequently, and by the same reasoning, all posthumous dealings including registration of the transfer for Gede/Mijomboni/162 at the land registry without a prior obtainance of a grant of representation under the Law of Succession Act rendered it invalid.

61. Lastly, knowledge of the impropriety and fraudulent nature of the entire raft of transactions is pleaded. It is claimed that the 9th defendant, out of his dealings with the 6th respondent in the petition, knew or ought to reasonably have known as at the point of purchase that ownership of the land was heavily disputed; that the advocate who handled the transaction for him knew of the dispute from correspondence, knew the value was grossly understated and he ought to have informed the 9th regarding the defect in Milena’s purported title to Portion No 1757.

62. It is noteworthy that the suit herein was lodged on 30/5/2011. The transfer of Portion No 1757 from Milena to Omar is dated 15/11/2010 and it was registered on 16/11/2010, at least 6 months before the suit was lodged. Noteworthy too is the fact that the same law firm that purportedly drew the transfer and conveyance herein above ruled by this court to be invalid also purportedly drew the transfer between Giovanni and Milena on 19/5/2009. In his witness statement dated 25/3/2022, Mr. Wameyo the advocate who dealt the Giovanni transactions at the 6th respondent’s offices, stated that “…later in the year 2010, police were looking for me with regards to the transfer of plot no Gede/Mijomboni/162 that was effected in favour of Milena Bora.” The criminal charges against Milena were commenced on 28/1/2011, about two and a half months after the transfer to Omar was registered, and they were finalized by an acquittal on 7/6/2012. In all this, all that can be said is that Milena was aware of the date of demise of Giovanni since she was close to him as at the time of that occurrence. Also, correspondence reviewed earlier, (that is the letter from K. A. Kasmani & Co Advocates dated 10/3/2010) and also others including Muli & Ole Kina advocates’ letter dated 5/3/2010 to Milena warning her not to intermeddle with Giovanni’s estate, and the latter law firm’s letter of 11/5/2010, (which warns that the transfer of half share of the Portion No 1757 was a forgery) are relevant. In particular, the letter by K.A Kasmani read as follows:Our client has from time to time assisted the deceased in his business and she has already advanced to him about 65,000/- (Sixty-Five Thousand) Euros. Cheque counterfoils are available…

63. Also let us have a copy of any application made to the court for grant of representation. Also advise your clients not to intermeddle with the estate. They do not have any right to make any demands in the absence of proper grant of representation.”

64. If Milena was aware of Giovanni’s demise as from 18/12/2009, and she herself through her advocates warned against intermeddling with the estate by the Giovanni family advocates in writing on 5/3/2010 and 8 months later she transferred to Omar Portion No 1757 Malindi she clearly knew she was defying Muli Ole Kina’s warning yet she could not claim to have a good title to transfer to anyone before the dispute had been resolved in a court of law.

65. In the case of Elijah Makeri Nyang’wara V Stephen Mungai Njuguna & another [2013] eKLR it was held as follows: -"Is the title impeachable by virtue of Section 26(1) (b)? First, it needs to be appreciated that for Section 26 (1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions.”

66. The Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment) considered the issue of bona fide purchaser for value and stated as follows:"92. On the same issue, the Court of Appeal in Samuel Kamere v Lands Registrar, Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR stated as follows:“…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...”93. As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] eKLR, where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.94. To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter.”

67. The letters set out herein above leave this court with the clear impression that Milena knew she was not supposed to deal with the deceased’s estate until the raging ownership dispute was over; as the principal defendant/respondent herein, being aware that she could be intermeddling with the Giovanni estate, she ought to have informed her advocates so that if she was entitled they could apply for a grant of representation under the Law of Succession Act on her behalf. When questioned in cross-examination regarding the apparent gross undervalue of the Portion 1757, William Wameyo, the advocate who handled the transactions, averred that selling at a fraction of the real value is not necessarily evidence of fraud, and that in any event he did not know that there was a claim pending in court then. Later on in his evidence, he admitted, without further elaboration, that by then his firm had received some correspondence over the suit property. I therefore find that the Mr Wameyo was aware of irregularity in the transaction between Milena and the 5th respondent. Since he was also acting for and extending professional services for which he owed great diligence to the 5th respondent, Mr. Wameyo, being aware of the history of the matter and the pending dispute, was obligated to inform the 5th respondent regarding the potential defect in Milena’s purported title to Portion No 1757. I do not find any evidence that the 5th respondent was personally aware of Milena’s fraudulent intent, but I must hold that since his agent was either negligent or complicit to the fraud and illegality in the transaction that yielded his title, he must also be held vicariously liable. Therefore, whether or not he complied with all relevant procedures in the transaction, it is the Milena’s knowledge and fraudulent intent and the illegality of her title and the omission by counsel to inform him or the potential defect in Milena’s title that matters in this case, and which, whether the 9th defendant was aware of it or not, vitiates the transfer of Portion No 1757 Malindi between them.

68. Consequently, his title having been tainted by fraud and illegal procurement originating from Milena’s actions and omissions, and Milena thus not having had any good title to pass to him under the principle of nemo dat quod non habet as expounded in the case of Diamond Trust Bank Kenya Limited vs Said Hamad Shamisi & 2 Others [2015] eKLR, the 5th respondent’s title must be cancelled.

69. The second issue is whether the 1st respondent/defendant ought to be compelled to account for any rent funds held and received by her received from Portion No 1757- Malindi.

70. It must be remembered that Milena and Giovanni lived together and it must be deemed that she had a right to live in the house until the licence was determined by the administrator of Giovanni’s estate. The question arises as to for how long, after Giovanni’s demise, she held onto the property before she sold it, and whether there was evidence of leasing during that period. The period that matters is that between 18/12/2009 and 16/11/2010. This court has not been shown by evidence that she leased out the house during that period and she can not be therefore deemed to have obtained any rents therefrom. An order to compel her to account for rents she has not been proved to have received would be onerous and it can not be issued in this suit.

71. The third issue is whether the court should compel the 1st defendant/respondent to disclose the extent of the deceased’s contribution to the developments on Chembe/Kibabamshe /402 also known as the Melina Residence. Milena admitted in her evidence at the hearing that Giovanni had been given 2 shares in Melina Investments in consideration for “his help”. Regarding this issue also, the court notes that an excerpt from the minutes of the meeting of Melina Investments Ltd held on 10/3/2011 were exhibited by the plaintiff in which the issue of the Giovanni estate’s entitlement in the Melina Investments Ltd was discussed. It is at that meeting that Mr Aboo, an auditor explained to Mr Ole Kina that the 2 shares admitted to by Milena were issued to Giovanni at the time of the formation of the company on a nominee basis as the other shareholders were not in Kenya and that the law required a minimum of 2 shareholders for the formation of a company. It is the view of this court that the information so far disclosed on that issue does not involve matters of title, use and occupation of land and therefore is beyond the jurisdiction of this court. The issue of disclosure and determination of what shares or value Giovanni held in Melina Investments Ltd should therefore be taken to the High Court for determination.

72. The next issue is whether the rights of the petitioners and the plaintiff under Article 40 of the constitution have been violated. It is clear as at now that the 1st respondent’s acts and omissions were geared at illegally and fraudulently assuming the control of some of the properties owned by Giovanni’s estate. This dispute has assumed a public law litigation aspect by drawing into it some government officers. That notwithstanding it has been the finding of courts in the past that the Bill of Rights can be applied both vertically and horizontally, that is, in respect of government-citizen relationship as well as citizen-citizen relationship. My understanding of that concept is that is that it is an appreciation that not only the government’s actions and omissions may threaten or violate the rights of its citizens, but even those actions and omissions on the part of private citizens may have the same effect on their contemporaries.

73. In this case it has been alleged that 1st 2nd 3rd respondents conspired to intermeddle and so Article 40 was breached with respect to the proprietary rights of the estate as well as the rights of the claimants to beneficial interest in the property it owned. It has been claimed that the 3rd -7th defendants owed the claimants a duty of care to maintaining proper records as custodians and to adhere to strict legal procedures in execution of their duties with respect to the claimants but instead they connived with 1st defendant to effect the fraud on the estate; it is claimed that they succumbed to Milena’s influence and/or were negligent in the conduct of their duties. The bottom line here is that the claimants are of the view that had all the respondents all acted with propriety, the rights of the estate would not have been defeated.

74. In support of the above allegations, the claimants draw the attention of the court to the following allegations in the pleadings: 1) That the respondents glossed over the fatal defects in the documents presented for registration and registered them nevertheless including: a) the LCB consent applied outside the statutory within 6 months with no evidence of exemption, b) the consent was issued by the Bahari LCB which had no territorial jurisdiction over the suit property; c) glaring differences in date of consent and date of application which reflected that the consent had been issued before the date of application; d) that the Land Control Board meeting alleged to have issued the consent never sat on 16/2/2010; 2. ) that cheating the government of stamp duty payable in the transaction was allowed 3. ) that the values of the plots was not stated on the transfers plot and consideration sold for differ so much that fraudulent intention should have been automatically detected; 4) that to the claimants’ detriment, they failed to register caveat against the property even when the fraud was brought to their attention vide a letter dated of 21/5/2010; (4); further, they registered a transfer of Portion 1757 while claims of fraud had not been resolved. 5. ) that even assuming that the transfer to Milena was valid, she was only entitled to that half share only and it was improper to allow her to transfer the entire property to the 5th respondent. 6. ) that they engaged in deception in that the land register was not updated, leading to issuance of misleading information upon a search to the effect that Giovanni was still the registered proprietor. 7. that the 2nd defendant acted in excess of both his territorial and appointive jurisdictions in registering the transfer in respect of Portion No 1757-Malindi. Those are the allegations to be proven to establish violation of rights.

75. Regarding that the officials at the land registry glossed over the fatal defects in the documents presented for registration and registered them this court has already noted that the LCB consent was applied for outside the statutory within 6 months with no evidence of exemption from the provisions of the Land Control Act in respect thereto. It was illegal for the Land Registrar to register the transfer to Milena in respect of Gede/Mijomboni/162 on the basis of that consent without any evidence of such exemption.

76. As for the claim that the LCB consent was issued by the Bahari LCB which had no territorial jurisdiction over the suit property, it was for the claimants to demonstrate clearly the demarcation of boundaries that marked the Bahari and Kilifi LCBs’ respective territories vis-a-vis the location of Gede/Mijomboni/162. That was not done and this court lacks any basis to hold that the LCB consent was issued by a board without territorial jurisdiction.

77. With regard to alleged glaring discrepancies in date of consent and date of application which reflected that the consent had been issued before the date of application, it is obvious that the land registry should have noted the discrepancies and demanded an explanation therefor in default of which the consent ought to have been rejected and the transaction would then have not been registered.

78. Whether or not it was the Kilifi LCB or the Bahari LCB that sat over the application for consent, the claim having been made that there was no sitting, it behoved the Land Registrar to avail to the claimants and this court information in the form of minutes, a copy of which his office normally is provided for in practice by the LCB, to show that there was such a sitting that approved a consent. In the absence of that information which is clearly within their power and control, the 2nd -4th respondents have not demonstrated that they registered the transfer to Milena on the basis of a valid LCB consent.

79. There is also the claim that cheating the government of stamp duty payable in the transaction was allowed during the transactions. I think it has been already proven by evidence that there was a gross undervaluation and thus an under-declaration of the value of Portion No 1757 –Malindi by the 1st and 5th respondents. The certificate of confirmation of grant issued to the plaintiff places the value of the parcel at Kshs 20,000,000/=. This court is persuaded that can not be a false declaration since there is normally an increase in the outgoings or charges associated with higher value at registration and I do not think the claimants would have had any reason to bloat that value to their detriment. However, it has been held in earlier cases that misrepresentation of true value for the purpose of cheating the taxman out of stamp duty does not go to the core of the validity of a transfer as the situation can always be corrected by re-assessment and issuance of a demand for the stamp duty not paid. In Abel Odhiambo Were v Margaret Audi Ong'aro & another [2014] eKLR the court observed as follows regarding failure to pay the required stamp duty:57. It appears that this rigmarole regarding whether stamp duty or the right amount thereof has been paid is not an isolated occurrence. In Joseph Karua Ngareh v Mary Gathoni Kihara & 2 others [2018] eKLR, Waithaka J found that the defendant could not show that the title she held could lawfully be issued to her before the requisite stamp duty had been paid in respect thereof, and that it was unprocedurally obtained and as such, incapable of being accorded the protection envisaged under Section 26 of the Land Registration Act, 2012. 58. In the case of Nicholas Thuo Kabaiku v Serah Njeri Mbatia [2021] eKLR, Bor J was faced with a situation where evidence was given that the Plaintiff remitted the full sum required for stamp duty to the advocate who acted for both parties in the sale and where there was nothing to prove that the Plaintiff participated in getting the transfer documents lodged at the lands office. His advocate lodged the transfer at the lands office for registration and was responsible for the underpayment of the stamp duty due on the transfer by understating the value of the land.59. In the light of the foregoing this court finds no legal basis upon which the transfer to and title in the names of the 4th and 5th defendants can be cancelled, or upon which an order for transfer of the suit land to the plaintiffs may be made.”

80. In Ndegwa (Suing as the Legal Representative of the Estate of Jedidah Wanjiku Ndegwa - DCD) v Jonada Services Limited (Land Case 216 of 2016) [2023] KEELC 89 (KLR) (19 January 2023) (Judgment) the court held as follows:"It would appear that failure to pay stamp duty has elicited different holdings by courts in separate cases. This court is of the view that the gravity of the omission to pay stamp duty should depend on the unique circumstances of each particular case and the evidence available. For example, does it go to the core of the terms of the contract or is it merely a transgression against tax-collection authority laws which, whether deliberate or inadvertent, may be remediable by lien over the property till the tax is settled? In the present suit, I find no proof that stamp duty was not paid. There is no evidence that the defendant deliberately evaded payment of stamp duty. There was no evidence given that the defendant was involved in the lodging of the transactional documents for registration at the lands office. Indeed, the application for registration and the application for resubmission of those documents (P. Exh 3(b) and P. Exh 3(c) respectively show on their face that the defendant’s advocate’s dealt with the processing of the lease in the defendant’s name. No officer from the lands office was summoned to give evidence in proof of non-payment of duty. In the event that any of the dues payable including stamp duty was not paid then that is an omission that can be corrected by the necessary government tax authorities by way of claiming any outstanding sum from the transferee and that anomaly is therefore not fatal to the transfer.”

81. I too hold that the gross undervaluation of Portion No 1757 should not be held to be one of the factors that not go into the core of the contract between Milena and Omar so as to vitiate it. However, that transaction remains vitiated by the other factors mentioned herein.

82. On the issue that the values of the plots were not stated on the transfers and the consideration the land was sold for differs so much that fraudulent intention should have been automatically detected, I think this issue is related closely with the immediately preceding issue of failure to pay the proper amount of stamp duty. It is obvious in the conveyancing scene in this country that the market value and the value for purposes of stamp duty differs. However, for the purpose of detecting fraud, I would find it an onerous burden to place on the shoulders of the land registry officials to go forth investigating the real value for which the plot was or should have been sold while their task is to assess the proper stamp duty value, for which they have a standard mechanism. As long as upon a diligent examination all other features of the transfers or conveyances appear to be in order, and the proper valuation for stamp duty mechanisms have been complied with therefor, documents are registrable. Therefore, whether the value for which the plots were sold or transferred were indicated on the face of the transfer or not, all the government offices concerned ought to have done is to do the proper assessment and charge the proper stamp duty for the properties. This ground does not aid the claimants’ case.

83. Next is the claim that to the claimants’ detriment, the land registry failed to register caveat against the property even when the fraud was brought to their attention vide a letter dated of 11/5/2010; further, they registered a transfer of Portion 1757 while claims of fraud had not been resolved.

84. It is true that a letter of 11/5/2010 was written. The receipt stamp thereon shows that it was received by the Department of Lands Mombasa on 13/5/2010. There is no information given by the Registrar of Titles, Coast, who has been joined to the present suit as to what he did to prevent any transfer such as that which was, after that letter was delivered to him, undertaken by the 1st respondent to the 5th respondent. Government officers must in this age of enlightenment as to citizen’s rights, cease giving citizens the silent treatment. Even courtesy demands that any decent office responds to correspondence, and good practice requires that even where a substantive response can not be immediately availed as requested in a letter, at least receipt of correspondence should be acknowledged. This appears not to be what happened in this dispute. In fact, despite the indication that the matter was under investigation, the 2nd respondent registered the transfer from Milena to Omar on 16/11/2010. Later she was soon thereafter arraigned in court on a charge of forgery on 28/1/2011. It is certain that had the 2nd respondent investigated the matter, and he certainly had the power to do so under the law, the transfer to Omar may not have been registered until after the dispute was resolved to conclusion. This court is of the view that the 2nd respondent’s failure to halt registration of any transactions with respect to Portion No 1757-Malindi led to an escalation of the dispute and the taking of the estate’s property further from the beneficiaries. It is this court’s view that the acts and omissions of the respondents were thus in violation of Article 40 of the Constitution of Kenya.

85. The issue also arose as to why, even assuming the transfer to Milena was valid for argument’s sake, and she only entitled to that half share only, the transfer by her to the 5th respondent was for the whole parcel Portion No 1757-Malindi. Was it improper to allow her to transfer the entire property to the 5th respondent. I think the answer lies in the purported conveyance dated 19/5/2009. It merely states that what is conveyed to Milena is a half share interest in Portion No 1757-Malindi “to hold the same unto the purchaser as the joint beneficial owner thereof.” A proper interpretation of the language used in that conveyance would mean that it is not the whole property that was being transferred to her but only a half undivided share thereof, and that to hold as a joint beneficial owner thereof. One half undivided share of the property remained with Giovanni. Nowhere in the conveyance dated 19/5/2009 are the parties described as joint tenants to the whole property. In Peter Mburu Echaria V Priscilla Njeri Echaria [2007] eKLR it was held as follows:"The first statement of the law by Gachuhi JA, that in a joint tenancy each party owns an undivided equal share therein is not, with respect, entirely correct. It is in a tenancy in common in equal shares where each tenant owns an undivided equal share in the property. On the contrary, one characteristic of a joint tenancy is that the joint tenants have a unity of interest, that is to say, that, although they have separate rights, the interest of each joint tenant is the same in extent and duration and in reality they are in the position of a single owner. A second characteristic of a joint tenancy is a right of survivorship. On the death of one joint tenant his interest accrues to the other joint tenant(s) by right of survivorship (jus accrescendi). However, the joint tenants have a right to sever the joint tenancy in their lifetime in which case the joint tenancy is converted into a beneficial interest in common in equal shares. It is however correct to say that a joint tenancy connotes equality for there is a rebuttable presumption that where two or more people contribute the purchase price of property in equal shares they are in equity joint tenants.In Principles of Family Law – by S. M. Cretney, 4th Edition 1984, the author summarises the law at pages 655, 656 thus:“If the conveyance contains an express declaration of beneficial interests, that is conclusive or (at least) requires a high degree of proof of fraud or mistake if it is to be rebutted. If for example the conveyance states that the parties hold the property upon trust for themselves as joint tenants beneficially, (which presupposes equally), it will be difficult for one of them subsequently to assert that he is entitled to more than 50 per cent, of the sale proceeds”.

86. In this court’s view for a conveyance to have the effect of creating a joint tenancy with the consequence of survivorship as described in Peter Mburu Echaria (supra), the whole parcel would have to be transferred from one owner to both the owner and the additional party with the expression that they now hold the whole property, and not a lesser share thereof, as joint tenants. As per the above excerpt from PRINCIPLES OF FAMILY LAW – by S. M. Cretney, 4th Edition 1984, the purported conveyance dated 19/5/2009 had no such effect. It is therefore correct for the claimants to question why, despite the language in the conveyance dated 19/5/2009 which must have been engrossed by the Registrar of Titles before registration, Milena was allowed to transfer the entire property known as Portion No 1757 to Omar. An accidental lapse is possible on some occasions, but this court hardly thinks that it was such a lapse that led to the registration of the conveyance to Omar and further convoluted the present dispute because, taken together with the failure to register a caveat, and failure to even acknowledge or act on the letter by Muli ole Kina dated 11/3/2010 as seen herein before, the decision to register the indenture in favour of Omar while the dispute was still unresolved by application of the law is indicative of not mere negligence but collusion between the Registrar of Title’s office and Milena, just as is alleged by the claimants herein, and that is further evidence of the respondents’ wilful action calculated to defeat the rights and interests of the claimants.

87. I have found no evidence from the claimants to support the allegations that in sub-issue no 6) herein above that the land registry engaged in deception in failing to update the land register and thus leading to issuance of misleading information upon a search, to the effect that Giovanni was still the registered proprietor; the same case applies to sub-issue no 7) to the effect that the 2nd defendant acted in excess of both his territorial and appointive jurisdictions in registering the transfer in respect of Portion No 1757-Malindi.

88. Property that should have remained with the estate of the late Giovanni has as a consequence of the acts or omissions of the defendants/respondents been taken away from it. In this court’s view, the rights of the claimants to property under Article 40 of the constitution have been violated by all the respondents, either working alone on some occasions or in cahoots with one another on others. The court having been approached by way of both an ordinary suit and a constitutional petition which have been found to be meritorious, it is clear that what the defendants/ respondents have done amounts to a constitutional tort of trespass that attracts a constitutional remedy. For the 2nd 3rd and 4th respondents in the petition, I find that they are also guilty of the additional constitutional tort of negligence in allowing a transfers of the suit properties despite warnings not to do so from lawyers representing Giovanni’s estate.

89. Fraud and illegal actions having been established, this court must deal with the issue of whether the plaintiff in Malindi ELC 56 of 2011 entitled to general, punitive and exemplary damages.

90. In a surprising turn of events there was no evidence of the quantum of any type of loss and damage canvassed claimed by the claimants, not even in their submissions. they merely stated thus:"It is therefore in the interests of justice that this court evaluates the nature and complexity of the issues canvassed herein and the weight of the evidence adduced herein and proceed to grant the prayers sought herein.”

91. This court agrees with the claimants that the defendants/respondents and especially the 3rd -7th defendants owed the claimants a duty of care to maintaining proper records as custodians and to adhere to strict legal procedures. From the conclusions of this court herein above, it is clear that a wrong has been committed against the claimants by all the defendants/respondents either working singly or jointly and severally, with the result that the property rights of the claimants have been taken away contrary to lawful procedure, with similar variations of liability attaching to the defendants/respondents. The obvious and first aspect of resolution to the claimant’s grievance is a reinstatement of their property back to them. The second is compensation by way of damages.

92. However even in the absence of any specific remedy proposed by the claimants for the constitutional tort of trespass it is evident from the provisions of the constitution that this court should craft a remedy appropriate for the circumstances. In the present case unquantified damages are claimed. Article 23(3)(e) of the Constitution provides as follows:23. Authority of courts to uphold and enforce the Bill of Rights(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(2)Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(3)In any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review.”

93. This court is therefore under the provisions of the above sub-article to assess and award the claimants an appropriate amount of compensation in the present case. Nothing much was said about the use to which Gede/Mijomboni/162 is put to and the impact of the transfer thereof on the estate may be minimal. However, there are structures on Portion No 1757 Malindi which are lettable and from which the estate has not received any rent at least from the date the premises were disposed of to the 5th respondent. As no amount was brought forward as the monthly rent, the court takes liberty to assess the monthly loss at Kshs 50,000/= per month. Computed from 16/11/2010 to date, the court finds that a rounded off amount of Kshs. 8,400,000/= is appropriate as compensation under Article 23(3)(e). However, this compensation shall be paid by the 1st and 5th respondents jointly and severally. For the 2nd, 3rd and 4th respondents I find that they should compensate the claimants in the sum of Kshs 2,000, 000/- (Two Million Kenya Shillings) as exemplary damages for negligence which led to the transfer of the suit property from the 1st respondent to the 5th respondent.

94. The upshot of the foregoing is that both the petition and the suit filed by the claimants succeed while the 1st respondent’s counterclaim fails. I therefore enter judgment in favour of the petitioner and the plaintiffs and I issue the following specific orders:a.A declaration is hereby issued declaring that the 3rd -7th defendants (inclusive) in the suit owe the plaintiff and the petitioners a duty of care and a duty to maintain proper records and adhere to strict established legal procedures in execution of their duties as custodians of records relating to the plaintiff’s land;b.A declaration is hereby issued declaring that the purported Land Control Board letter of consent serial number 393950 dated 11th February 2010 is null and void;c.A declaration is hereby issued declaring that the indenture of conveyance dated 19th May 2009 transferring a half share of the freehold interest therein in portion No 1757 Malindi to Milena Bora, the 1st respondent and registered on 3rd March 2010 at Mombasa land registry by the 2nd respondent is invalid by reason of forgery and is hereby cancelled;d.A declaration is hereby issued declaring that the purported transfer of an undivided half share of Portion No 1757 Malindi from the deceased to the 1st defendant is null and void;e.A declaration is hereby issued declaring that the indenture of conveyance dated 15th November 2010 purporting to transfer the entire freehold interest in portion no 1757 Malindi from Milena Bora the 1st respondent to the 5th respondent, Omar Salim Abdalla registered at the Mombasa land registry is null and void and is hereby cancelled;f.An order is hereby issued directing the defendants jointly and severally to take all necessary steps to rectify the records held in relation to portion 1757- Malindi by expunging or cancelling the purported registration of the 5th respondent as the proprietor of the said parcel;g.A declaration is hereby issued declaring that the purported transfer of the undivided share of title number Gede/Mijomboni/162 from the deceased Giovanni Gremmo to Milena Bora, the 1st defendant registered on 2nd March 2010 at Kilifi land registry by the 3rd respondent is null and void ab initio.h.An order is hereby issued directing the 3rd respondent shall take all necessary steps to rectify the records held in relation to title number Gede/Mijomboni/162 by expunging or cancelling the purported registration of the 1st defendant as the proprietor of the said parcel and by reinstating the name of Giovanni Gremmo as registered proprietor thereof;i.The plaintiff in the suit, on behalf of the estate of Giovanni Gremmo (deceased), is hereby awarded general damages of Kshs. 8,400,000/= as compensation under Article 23(3)(e) of the Constitution as against the 1st and the 5th respondents in the petition jointly and severally;j.The petitioners are hereby awarded the sum of Kshs 2,000, 000/- (Two Million Kenya Shillings) as exemplary damages for negligence as against the 2nd, 3rd and 4th respondents in the petition;k.The sums awarded in (i) and (j) hereinabove shall attract interest at court rates from the date of this judgment till payment in full;l.The costs of the petition and the suit shall be borne by the 1st -9th defendants in the ordinary suit and the 6th defendant in the petition jointly and severally.

JUDGMENT DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 16TH DAY OF JANUARY 2025. MWANGI NJOROGEJUDGE, ELC, MALINDI