https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4589

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KWALE** **CIVIL CASE NO. E015 OF 2023** **GULNAR SULTAN KHAN** **FARHAT SULTAN KHAN…………………………………PLAINTIFFS** * **VERSUS -** **SWALEHE ABDALLA MWATAPHA…………….……..1ST DEFENDANT** **ALMASI ABDALLA TAPHA …………………….………2ND DEFENDANT** **THE NEW CALABASH LIMITED………………….…..3RD DEFENDANT** **JIMMY BAYA THOYA…………………………………..4TH DEFENDANT** **BENTES TOURS AND SAFARIS LIMITED…………5TH DEFENDANT** **THE COUNTY LAND REGISTRAR KWALE………..6TH DEFENDANT** **THE COUNTY SURVEYOR KWALE………………….7TH DEFENDANT** **JUDGMENT** 1. **Preliminaries** 2. The Judgment of this Honourable Court pertains to a Civil Suit instituted by *Gulnar Sultan Khan* and *Farhat Sultan Khan,* the Plaintiffs herein through the Amended Plaint dated 7th March, 2023 It was against *Swalehe Abdalla Mwatapha, Almasi Abdalla Tapha, The New Calabash Limited, Jimmy Baya Thoya, Bentes Tours and Safaris Limited, the County Land Registrar Kwale* and *the County Surveyor Kwale, the 1st, 2nd, 3rd, 4th, 5th, 6th 7th* the Defendants herein. 3. Upon service of the pleading and Summons to Enter Appearance:- 4. The 1st and 2nd Defendants filed their Statement of Defence dated 6th March, 2024 on 7th March, 2024; 5. The Plaintiff responded 1st and 2nd Defendants claim through response dated 31st May, 2024 and a defence dated the same day. The 6th and 7th Defendants filed their Statement of Defence dated 24th February, 2025. 6. The 3rd, 4th and 5th Defendant did not respond to the Plaintiff’s claim therefore the Plaintiffs’ claim against them proceeded by way of formal proof. 7. **Description of the Parties in the suit** 8. The Plaintiffs were described as adult female residents of Kwale, suing as proprietors of parcel Land Reference Numbers Kwale/Diani SS/201. The 1st and 2nd Defendants are adult male residents of Kwale, claiming ancestral rights over the same parcel. The 3rd and 5th Defendants are limited liability companies registered in Kenya. 9. The 4th Defendant was described as a male adult resident of Kwale. The 6th and 7th Defendants described to be government officers serving as Land Registrar and County Surveyor respectively. 10. **Court directions before the hearing** 11. Nonetheless, on 3rd April, 2025, the Honourable Court fixed the hearing dated on 20th June, 2025 with the parties having fully complied on the Provisions of Order 11 of the Civil Procedure Rules 2010 and the matter proceed for hearing on 20th June, 2025 by way of adducing “viva voce” evidence with the Plaintiffs’ witnesses testifying in Court whereby they closed their case; the Defendants closed their cases without calling any witnesses. 12. **The Plaintiff’s case** 13. From the filed pleadings, at all material times to this suit, the 1st Plaintiff stated that she and her late husband were the proprietors of the property referred to as KWALE/DIANI SS/201. The plaintiffs stated that the 6th and 7th Defendants, acting on the instructions of the 1st and 2nd Defendants and the late Ramadhan Swaleh Mwatapha, purported to revoke and change ownership of the plaintiffs’ title to the property referred to as KWALE/DIANI SS/201 vide an award in Land Case No. 36 of 2008 issued by the Msambweni District Land Dispute Tribunal and registered at the Principal Magistrate’s Court at Kwale. 14. The 1st Plaintiff’s late husband had earlier successfully challenged Award No. 54 of 2005 that had purported to revoke their title in Miscellaneous Civil Application No. JR 27 of 2009. The plaintiffs averred that in the judgment in Miscellaneous Civil Application No. JR 27 of 2009, the court had taken judicial notice of the fact that the 1st Defendant and the late Ramadhan Swaleh Mwatapha had filed another similar case that would suffer the same fate. The plaintiffs stated that in the year 2015 the 1st Defendant and the late Ramadhan Swaleh Mwatapha had made an attempt to subdivide the property as well as invade it, but the 1st Plaintiff’s late husband had protested to the Land Registrar and had been assured that no subdivision would be registered against the property. 15. The Plaintiffs stated that all along prior to the foregoing they had peacefully enjoyed their property without interference, and upon the demise of the 1st Plaintiff’s husband Sultan Khan in late year 2020, the 1st Plaintiff had proceeded to the Kwale Lands Registry to conduct a search for the purpose of succession proceedings. She had been shocked to discover that the title had been revoked by the respondents in contravention of the judgment in Judicial Review No. 27 of 2009 and that the said property had been subdivided, thereby extinguishing Title Number KWALE/DIANI SS/201. 16. The 1st Plaintiff averred that she had learnt that her late husband had filed another case, No. 2 of 2015, with the Law firm of Messrs. Magolo & Company Advocates but had failed to inform her due to her health issues. She had proceeded to the said firm to inquire about the progress of the case and had been informed that it was progressing well. The plaintiffs stated that when she had visited the suit property she had been confronted by a rowdy lady who had informed her that the land belonged to her family and that the Plaintiffs had no right to visit the property. 17. The Plaintiffs had reported the matter at Kwale Police Station and had been issued with OB No. 23/23/02/2021, and the investigations into the matter were still ongoing. Pending the investigations by police, the plaintiffs had been informed by the police that the mastermind of the fraudulent acquisition and sub - division of the suit property had passed on. 18. The police had requested a boundary identification of the property because there had been a boundary dispute between the Plaintiffs and one of their neighbours, and it had been discovered that the 3rd, 4th, and 5th Defendants had encroached on the suit property. The 3rd, 4th, and 5th Defendants’ properties had been adjacent to the suit property and had been referred to as Kwale/Diani SS/1293, Kwale/Diani SS/1294 & Kwale/Diani SS/1295. 19. The 7th Defendant had only issued the invitation letters for the boundary identification but had declined to issue a comprehensive report after the boundary identification exercise, and numerous requests had borne no fruit. 20. The Plaintiffs stated that the 1st and 2nd Defendants and the late Ramadhan Swaleh Mwatapha had acted in disobedience of the judgment issued by the court in Judicial Review Case No. 27 of 2009 by purporting to revoke the title to the suit property and change ownership of the property vide an award issued by the Msambweni Land Dispute Tribunal, which had had no jurisdiction to entertain claims with regard to ownership and revocation of title to property. 21. The Plaintiffs averred that they had been called by a neighbour on 20th February informing them that there had been some surveyors on the ground putting up beacons. The plaintiffs stated that they had visited the Lands Office and had been shocked to discover that the land had been further subdivided. 22. The Plaintiffs stated that they had learnt that the civil case – “***High Court Case No. 2 of 2015***” had been dismissed and that their advocates on record in the matter had not informed them about it, and therefore the 1st and 2nd Defendants had taken advantage and had further subdivided the suit property. 23. The Plaintiffs prayed for Judgment to be entered against the 1st, 2nd, 3rd, 4th, 5th, 6th & 7th Defendants jointly and severally for: 24. ***A declaration that the registration of the suit property in favour of the 1st and 2nd Defendants as well as the late Ramadhan Swaleh Mwatapha was fraudulent, irregular and illegal.*** 25. ***Nullification of the sub - divisions of Kwale/ Diani SS/201 into Kwale/Diani SS/3094and Kwale/ Diani/3095 and Kwale/Diani SS/5406, 5407, 5408 & 5409 and the resultant titles thereof and reinstatement of the records of Kwale/Diani/201.*** 26. ***That this Honourable Court be pleased to issue a permanent injunction against the 1st and 2nd Defendants whether by themselves, their assignees, agents, servants or any person claiming through them from occupying, entering upon or otherwise howsoever manner interfering with the suit property by selling, disposing off, subdividing and charging the suit.*** 27. ***That this Honourable Court be pleased to issue a permanent injunction against the 3rd, 4th and 5th Defendants restraining them whether by themselves, their assignees, agents, servants or any person claiming through them from occupying, entering upon or otherwise howsoever manner interfering with the suit property by selling, disposing off, sub - dividing and charging it.*** 28. ***An order compelling the 6th and 7th Defendants to reinstate the Registration of the plaintiffs as the rightful owners of Plot Number Kwale/Diani SS/201 and expunge the records of the fraudulent subdivisions referred to as Kwale/Diani SS/3094 and Kwale/Diani/3095 and Kwale/Diani SS/5406, 5407, 5408 & 5409.*** 29. ***General damages.*** 30. ***Costs of the suit.*** 31. The Plaintiff’s legal counsel had the following opening remarks on 20th June, 2025:- 32. **Opening remarks by Dr. Chitembwe Advocate: -** 33. The Plaintiff and her late husband bought the suit land from the previous owner Mr. Peter Kabiru in the year 1992. It was transferred directly to them from the scheme and they were issued with the title. However, later on the 2nd Defendant raised an objection before the Tribunal Rule in favour of the 2nd Defendant. Being aggrieved the plaintiff preferred an appeal and the High Court directed that the Tribunal led to Jurisdiction. In the meantime, the Defendant got the orders by the Tribunal was registered with the Land Registry and had carried it to be subdivided and selling to other third party. 34. The Plaintiffs responded to the 1st and 2nd Defendant’s counterclaim and averred that: - * + - 1. Save for what had been expressly admitted, the defendants denied each and every allegation set out in the counterclaim as if the same had been set out and traversed seriatim. 2. The defendants admitted the contents of Paragraphs 28, 29, 30, 31, 32, 33 and 34 of the Counter - Claim, the same merely being descriptive. 3. They denied the allegations in the Counter - Claim at paragraphs 36, 37 and 38 of the Counter - Claim, and further stated that the settlement scheme had been created from government land that had had no occupants in it and that all procedures had been strictly adhered to. 4. They further stated the Plaintiffs in the Counter - Claim had never been in occupation of the suit property. 5. They denied the contents of Paragraphs 38, 39, 40, 41, 42 and 43 of the Counter - Claim and put the Plaintiffs in the Counter - Claim to strict proof thereof. They further stated that there had been several registers at the Lands Office that provided information on the chronology of events and that records could not just disappear without a trace, as counterpart copies had been stored at the Land Headquarters at Nairobi Central Registry. 6. They denied the contents of paragraphs 44 and 45 and put the Plaintiffs to the Counter - Claim to strict proof thereof. They further stated that the late Sultan Khan and the 2nd Defendant herein had acquired and held good title that had been fraudulently interfered with by the Plaintiffs in the Counter- Claim. 7. In response to paragraph 46, they denied the contents thereof and further stated that the Plaintiffs had been clueless about the positioning of the suit property until the present suit had been filed. 8. They stated that the encroachment by the 4th, 5th and 6th Defendants had further served to confirm that the Plaintiffs could not have been in occupation of the suit property as alleged and that they had merely been clueless fraudsters. 9. The jurisdiction of the Honourable Court was admitted. 35. In response to the 1st and 2nd Defendants’ Statement of Defence the Plaintiffs stated that: - * + - 1. The Plaintiffs joined issue with the Statement of Defence filed therein and reiterated the contents of the Plaint verbatim. 2. In response to Paragraphs 6, 7 and 8 of the defence, the Plaintiffs denied the averments made and stated that the issues raised in the suit had not been litigated upon and no determination on those issues had been made. 3. The Plaintiff further stated that the 3rd, 4th and 5th Defendants had presented very new issues that had never been placed before any court for determination, and further that they had occupied an area on the ground that had not corresponded with the titles they held. 4. In response to Paragraphs 12 and 13 of the defence, the Plaintiff denied that the 6th Defendant had had powers to cancel a properly issued title deed. 5. In response to Paragraphs 16, 17, 18, 19, 20 and 21, the Plaintiff stated that the 1st and 2nd defendants had never been in occupation of the suit property. 36. For reasons wherefore the Plaintiff prayed that the statement of defence filed therein be dismissed and that judgment be entered as prayed for in the Plaint. 37. The Plaintiff called their witness PW - 1 on 20th June, 2025 at 11.45 am where he averred that: - 38. **Examination in chief of PW - 1 by Dr. Chitembwe Advocate.** 39. PW - 1 testified on oath in English language, He was called GULNAR SULTAN KHAN. He had recorded his witness statement dated 21st November, 2024 together with a list of documents of the same date comprising twenty- two (22) documents produced as Plaintiff Exhibits No. 1 to 22 in that order in evidence. He stated that he was the owner of the land and had been issued with the original title deed in the name of Sultan Khan Abdulla on 9th October, 1998, his late father. 40. PW - 1 testified that in the year 1992 his father and Mr. Peter Githu Kabiru had duly executed a sale agreement for the purchase of the suit land. The land had thereafter been transferred to his father. He further stated that the 6th and 7th Respondents had applied to have the title revoked at the Msambweni District Land Dispute Tribunal in Case No. 36 of 2008. The award had been registered at the Principal Magistrate’s Court. They had challenged the award before the High Court, and on 1st September, 2009 the High Court, through Justice M.K. Ibrahim, had directed that the Tribunal had no jurisdiction (as reflected on page 26 of the record). PW - 1 added that they had fenced the property thereafter. 41. PW 1 referred to page 59 of the record, which contained an order of the court dated 21st January, 2025 in Land Case No. 2 of 2025, issuing an injunction restricting the Defendants. PW - 1 testified that he had been on the property many times. Pursuant to the order of the Magistrate’s Court in 2015, the Defendants had obtained a title deed, which had subsequently been subdivided into five parcels. He stated that on the ground there were several parties occupying portions of the land. He concluded by urging the court to grant him the orders as prayed in the filed plaint together with costs of the suit. 42. **Cross examination of PW - 1 by Ms. Saru Advocate.** 43. PW - 1 testified that he had been presently on the land even though the title deeds had not been in his name. 44. **Re – examination of PW 1 by Dr. Chitembwe Advocate: -** 45. PW - 1 stated that the Defendants had not been on the land. 46. The Plaintiffs through their Counsel on record Dr. Chitembwe Advocate marked their case closed on 20th June, 2025. 47. **The 1st and 2nd Defendant’s case** 48. The 1st and 2nd Defendant responded to the Plaint through a Defence and Counter - Claim where save for what had been expressly admitted, the 1st and 2nd Defendants denied the singular and several allegations of fact contained in the Plaint dated 7th March, 2023 as if the same had been set out verbatim and traversed seriatim. 49. The 1st and 2nd Defendants admitted the contents of Paragraphs 1, 2, 3, 4, 5, 6 and 7 of the Plaint as they were descriptive of the parties, save that their address of service for the purposes of the case had been care of Swaleh Abdalla Mwatapha and Almasi Abdalla Tapha. 50. The 1st and 2nd Defendants denied in toto the allegations contained in paragraph 8 of the Plaint that the 1st Plaintiff and her late husband were the proprietors of Kwale/Diani SS/201 and put the Plaintiffs to strict proof thereof. The Defendants stated that the suit was res judicata and offended section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, hence the court had no jurisdiction. They stated that on 20th January, 2015 the Plaintiffs had filed Mombasa Environment and Land Court Case No. 2 of 2015, which had been dismissed by the court on 10th May, 2022, and that the issues raised in the present case were the same as those previously raised and determined by a court of competent jurisdiction. 51. They further stated that since the issues raised herein had already been raised in the previous proceedings and determined by the court, the Plaintiffs were barred under the provision of Section 8 of the Civil Procedure Act, Laws of Kenya, from instituting a further suit in respect of the same issue and cause of action. Hence, the plaintiffs’ Notice of Motion application dated 7th March, 2023 and suit were fatally defective, void and a nullity. They contended that under section 4(4) of the Limitations of Actions Act, Cap. 22, the judgment delivered on 1st September 2009 at Mombasa High Court in JR 27 of 2009 was stale and barred in law, and no action could be brought upon the said judgment. 52. They stated that since the said judgment delivered on 1st September, 2009 was stale and time-barred, its inference and reliance by the Plaintiffs to bring the present suit were equally barred in law, and one could not put something on nothing. Hence, the Plaintiffs’ Notice of Motion application dated 7th March, 2023 and suit were fatally defective, void and a nullity. The defendants argued that the plaintiffs’ suit was an abuse of the court process and fatally defective because it did not disclose any cause of action. 53. The 1st and 2nd Defendants denied the contents of paragraph 9 of the Plaint that the 6th and 7th Defendants had acted upon their instructions, and stated that upon the inquisitorial recommendation by the Land Dispute Tribunal, the 6th Defendant had acted under the purview of the law in Sections 79 ( 1 ) & ( 2 ) and 80 ( 1 ) & ( 2 ) of the Land Registration Act, Cap. 300 [Rev 2012], and the 7th Defendant had acted in compliance with Cap. 299, Laws of Kenya. They put the Plaintiffs to strict proof thereof. 54. The Defendants stated that in view of the said provisions of the law, when it was revealed by the tribunal or by interested parties that a party had acquired land by fraud or misrepresentation, the Land Registrar (the 6th Defendant) had powers and discretion to revoke or cancel a title deed issued and could proceed to issue the rightful owner of the land with a title deed for the same. 55. They further stated that when the Plaintiffs had challenged Award No. 54 of 2005 at Mombasa JR 27 of 2009, due to guilt of fraud and indolence they had failed to execute the Judgment delivered on 1st September 2009 within 12 years. Under the provision of Section 4(4) of the Limitations of Actions Act, Cap. 22, the Judgment delivered on 1st September 2009 at Mombasa High Court in JR 27 of 2009 was stale and barred in law, and no action could be brought upon the said Judgment, and its inference could not aid the Plaintiffs. 56. The Defendants denied the contents of Paragraph 11 of the Plaint and stated that judicial notice taken by the court in the judgment delivered in JR 27 of 2009 on an issue which had not been before the court for determination was irregular, not a decision for that matter, and in fact in that matter the Plaintiffs herein had not pleaded in their pleadings to quash the award and Judgment adopted by the court in Land Award No. 36 of 2008. 57. The Defendants denied the contents of Paragraph 12 of the Plaint that in 2015 the 1st defendant and the late Ramadhan Swaleh Mwatapha had attempted to subdivide and invade, and stated that by the said time and to date, they had been and were still in actual physical possession of the suit land. The Defendants denied in toto the contents of Paragraph 13 of the Plaint and stated that the Plaintiffs had never occupied or possessed the suit land, which had been and was still in occupation and possession to date by the 1st and 2nd Defendants, and put the plaintiffs to strict proof thereof. 58. The Defendants stated that they were strangers to the contents of Paragraph 14 of the Plaint and would not plead. They denied the contents of paragraph 15 of the Plaint and stated that when they had been registered as proprietors of the suit land, they and their family members had had a duty to protect the suit land from invaders. 59. The Defendants denied the contents of Paragraphs 16 and 17 of the Plaint and put the plaintiffs to strict proof thereof. The Defendants denied the contents of paragraph 18 of the Plaint and stated that the 3rd, 4th and 5th Defendants had encroached on their registered suit land, hence put the Plaintiffs to strict proof thereof. The Defendants admitted the contents of paragraphs 19 and 20 of the Plaint and did not plead to the contrary. The defendants denied the contents of paragraph 21 of the Plaint and put the plaintiffs to strict proof thereof. 60. The Defendants denied the contents of paragraph 22 of the Plaint, stating that due to falsehood the plaintiffs had deliberately hidden the year they had purportedly been informed on 20th February that surveyors were putting beacons on the suit land. They put the Plaintiffs to strict proof thereof. They stated that after expiry of 12 years from 1st September, 2009, when the court had delivered its Judgment in JR 27 of 2009, the Plaintiffs had failed to execute that Judgment and it had become stale. Further, upon the court on 10th May, 2022 dismissing the Plaintiffs’ suit No. 2 of 2015, the 1st and 2nd Defendants had had no hindrance from using their land in whichever legal way they wanted. 61. The Defendants stated that the plaintiffs’ suit, Mombasa ELC No. 2 of 2015, had on 10th May, 2022 been dismissed by the court under Order 12 Rule 3 of the Civil Procedure Rules, and Order 12 Rule 6(2) provided that when a suit had been dismissed under Rule 3, no fresh suit could be brought in respect of the same cause of action. Hence, the present Plaintiffs’ suit herein was barred by law and the court had no jurisdiction to entertain it. 62. For reasons wherefore, the 1st and 2nd Defendants prayed that the Plaintiffs’ suit being barred by law be dismissed with costs to the 1st and 2nd Defendants. 63. On the Counter - Claim the Defendants averred as follows: - 1. The 1st and 2nd plaintiffs in the counterclaim were male adults of sound mind residing and working for gain within Ukunda. 2. The 1st defendant had been a male adult of sound mind who had served as the District Commissioner, Kwale, when the suit land had been adjudicated. Service of court summons and pleadings upon him had been effected by a private court process server through the Plaintiffs. 3. The 2nd and 3rd Defendants had been female adults of sound mind whose address of service for the purposes of the suit had been care of S.M. Otunga & Co. Advocates, P.O. Box 124-80400 Ukunda. 4. The 4th Defendant had been a limited liability company incorporated within the Republic of Kenya, and service of court summons and pleadings upon it had been effected by a private court process server through the Plaintiffs. 5. The 5th Defendant had been a male adult of sound mind residing and working for gain within Ukunda, and service of court summons and pleadings upon him had been effected by a private court process server through the plaintiffs. 6. The 6th Defendant had been a limited liability company incorporated within the Republic of Kenya, and service of court summons and pleadings upon it had been effected by a private court process server through the plaintiffs. 7. The 7th and 8th Defendants had been civil servants and employees in the Ministry of Lands deployed at Kwale, and service of court summons and pleadings upon them had been effected by a private court process server through the Plaintiffs. 8. The Plaintiffs in the Counter - Claim reiterated all their averments in their defence and stated that they had been the administrators of the estates of Swaleh Tawa Mwatawa and Abdalla Swaleh Tapha respectively, who had been the original owners of parcel Kwale/Diani SS/201. They averred that Swaleh Tawa Mwatawa and Abdalla Tapha had occupied the suit land in 1945 when they had cleared the thick bush, made a home, started a farm, and planted several coconut trees, mango trees, cashew nut trees, among other crops. They averred that the suit land area had been adjudicated in 1975 and later registered to the Settlement Scheme. 9. They averred that when the suit land had been registered to the Settlement Scheme, the developments, assets, and trees planted by the late Swaleh Tawa Mwatawa and Abdalla Swaleh Tapha had not been compensated, but instead they had been issued with a letter of allotment for parcel Kwale/Diani SS/201. 10. They averred that when Swaleh Tawa Mwatawa and Abdalla Swaleh Tapha had been issued with the letter of allotment, they had paid the Government the requisite charges of Kenya Shillings Five Thousand Six Hundred and Fifty (Kshs. 5,650/=). They averred that after paying for the suit land, they had waited for discharge of charge but in vain. 11. They averred that Swaleh Tawa Mwatawa and Abdalla Swaleh Tapha had followed up the discharge of charge for their suit land at the Kwale Settlement and Land Adjudication Registry but had been informed that their land records could not be traced. They had been requested to leave their original letter of allotment and receipt with the officers and return after two weeks. 12. They averred that after two weeks, when the late Swaleh Tawa Mwatawa and Abdalla Swaleh Tapha had returned to the Kwale Settlement Registry, their land records together with their original receipts and letter of allotment had not been traced, and they had been informed that when traced they would be notified. They averred that sometime later they had discovered that their suit land records had been fraudulently changed and altered in favour of the 1st defendant without notice or court order. 13. The 1st and 2nd Defendants relied on the following particulars of misrepresentation and fraud: - 64. In misrepresentation, collusion and conspiracy with the 7th and 8th Defendants, the 1st Defendant had deliberately, illegally, unlawfully and fraudulently caused the Plaintiffs’ land records to be lost in order to favour himself. 65. In collusion with the 7th and 8th Defendants, he had illegally and unlawfully altered and changed the plaintiffs’ beneficial land records in his favour without court order. 66. He had altered and changed the records without notice to the Plaintiffs. 67. He had altered and changed the records without cancelling or recalling the Letter of Allotment issued to the late Swaleh Tawa Mwatawa and Abdalla Swaleh Tapha. 68. He had altered and changed the records without compensating the developments made on the suit land. 1. The Plaintiffs in the Counter - Claim averred that the 1st Defendant, who had been the District Commissioner Kwale, had misused his office, position, rank and influence to illegally and fraudulently change the plaintiffs’ beneficial land records into his name before selling the same to Sultan Khan Abdulla and Gulnar Sultan Khan. 2. They averred that since the 1st defendant had acquired parcel Kwale/Diani SS/201 by way of misrepresentation and fraud, he had no good title to be passed to the Sultan Khan Abdulla and Gulnar Sultan Khan. 3. The Plaintiffs in the Counter - Claim averred that from the recent boundary identification done on the suit land, the 4th, 5th and 6th Defendants had encroached upon and trespassed onto the Plaintiffs’ land parcel Kwale/Diani SS/201. 4. Despite notice and demand having been issued, the Defendants in the Counter - Claim had failed to make good the Plaintiffs’ claim, thus rendering these proceedings necessary. 5. The Plaintiffs in the Counter - Claim stated that the cause of action had arisen within the jurisdiction of this Honourable Court. 6. They further stated that apart from this Counter - Claim, the 2nd and 3rd Defendants in the Counter - Claim had been the Plaintiffs in the main suit over the same subject matter. 69. Reasons wherefore the Plaintiffs in the Counter - Claim prayed for Judgment against the Defendants jointly and severally: - 70. ***That a declaration be issued that the Plaintiffs in the Counter Claim Swaleh Abdalla Mwatapha and Almasi Abdalla Tapha are the rightful legal owners for parcel Kwale/Diani SS/201 and their current registration of the suit land parcel Kwale/Dani SS/201 should not be disturbed and or interfered with.*** 71. ***That a declaration be issued that the 1st Defendant Peter Githu Kabiru misused his office, rank, Influence, power and office to be illegally, unlawfully and fraudulently registered and issued with a title deed for Plaintiffs' beneficial land parcel Kwale/Diani SS/201.*** 72. ***That a declaration be issued that the 1st Defendant Peter Githu Kabiru who acquired Plaintiff's beneficial land by way of misrepresentation and fraud had no good title deed to be passed to the 2nd and 3rd Defendants and the same be impeached by this Honourable Court.*** 73. ***That a permanent injunction order be issued restraining the 2nd, 3rd, 4th, 5th and 6th Defendants, their family members, heirs, proxies, servants and employees from claiming, trespassing, encroaching, invading, selling, building, entering, renting, hiring, alienating, transferring, cultivating, using and or interfering in any way with the Plaintiffs beneficial land Kwale/Diani SS/201.*** 74. ***Costs of the suit*** 75. **The case by the 6th and 7th Defendants** 76. The 6th and 7th Defendants filed their defence to the Plaint wherein save as had been expressly admitted, they denied each and every singular allegation made by the Plaintiffs as if the same had been set out verbatim and traversed seriatim. The 6th and 7th Defendants admitted the contents of paragraphs 1, 2, 3, 4, 5, 6 and 7 of the Plaint as they had merely been descriptive of the parties. 77. At the outset, the 6th and 7th Defendants denied any allegations of breach of legal obligation owed to the Plaintiffs and averred that any violation of their rights, if at all caused, had not been imputable to any omission or actions by the 6th and 7th Defendants. The 6th and 7th Defendants denied the contents of paragraph 8 of the Plaint and put the Plaintiffs to strict proof thereof. 78. The 6th and 7th Defendants denied the contents of Paragraph 9 in total. They stated that the Land Registration Act at Section 79 (2) and Section 80 had provided for rectification by registrar and rectification by an order of court. The former mode of rectification had been contingent on the proprietor’s consent, and therefore they put the Plaintiffs to strict proof thereof. 79. The 6th and 7th Defendants stated that they had been total strangers to the contents of Paragraphs 10, 11 and 12 of the Plaint, denied the same in toto, and put the Plaintiffs to strict proof thereof. The 6th and 7th Defendants stated that they had been total strangers to the contents of Paragraph 13 and further denied the averments of the Plaintiffs in their entirety, in particular the claim that the Plaintiffs had proceeded to the Kwale Lands Registry to conduct a search for the purpose of succession proceedings. They put the Plaintiffs to strict proof thereof. 80. The 6th and 7th Defendants stated that they had been total strangers to the contents of Paragraphs 14, 15, 16, 17 and 18 of the Plaint, denied the same in toto, and put the Plaintiffs to strict proof thereof. 81. The 6th and 7th Defendants denied the contents of Paragraph 19, to wit, that the 3rd, 4th and 5th Defendants’ properties had been adjacent to the suit property and referred to as LR. Numbers. Kwale/Diani SS/1293, Kwale/Diani SS/1294 and Kwale/Diani SS/1295. They put the Plaintiffs to strict proof thereof. 82. The 6th and 7th Defendants denied the contents of Paragraph 20 and put the Plaintiffs to strict proof thereof. The 6th and 7th Defendants stated that they had been total strangers to the contents of paragraphs 21 and 22 of the Plaint, denied the same in toto, and put the Plaintiffs to strict proof thereof. 83. The 6th and 7th Defendants denied the contents of Paragraph 23, to the extent that the Plaintiffs had allegedly visited the Lands Office and had been shocked to discover that the land had been further subdivided. They put the Plaintiffs to strict proof thereof. 84. The 6th and 7th Defendants stated that they had been total strangers to the contents of Paragraph 24 of the Plaint, denied the same in toto, and put the Plaintiffs to strict proof thereof. 85. For reasons wherefore the 6th and 7th Defendants prayed for:- * + - 1. ***That this suit be dismissed.*** 2. ***For costs of this suit.*** 3. ***For any other relief this Honourable Court may deem fit to grant.*** 86. **Submissions** 87. Upon the Plaintiffs and Defendants marked the close of their cases, the Honourable court directed that the parties file their submissions within stringent timeframe thereof on. 88. Pursuant to that the Honourable court reserved a date to deliver its Judgement on notice. Eventually, it was delivered on 29th June, 2026 accordingly. 89. **The Written Submissions by the Plaintiff.** 90. Through the Law firm of Messers. Osundwa & Company Advocates, the Plaintiff filed the written submissions dated 22nd July, 2025. Dr. Chitemwe Advocate commenced his submissions by providing the Court with a brief background of this matter. He stated that by their Plaint dated 7th March, 2023the Plaintiffs are seeking the above stated orders. The Plaintiffs filed their List of Documents and Witness Statements. The 1st Plaintiff relied on her Witness Statement and testified orally in Court. The 1st Plaintiff's evidence was that they bought the suit land, plot number KWALE/DIANI SETTLEMENT SCHEME/201 with her late husband from the 1st original allottee Mr. Peter Githu Kabiru on 31st January, 1992. On 9th October, 1998, they were issued with a Title Deed. The land was transferred to them directly from the Settlement Fund Trustees to them. The transfer documents registered on 9th October, 1998 was produced. 91. It was the Plaintiff's evidence that the 1st and 2nd Defendants claimed that the land belonged to their late father Swaleh Hassan Mwatapha. They filed Case Number 54 of 2005 before the Msambweni Land Disputes Tribunal. The Panel of elders heard the case and rendered their Judgement on 21st October, 2002 in favour of the first two Defendants.. 92. Subsequently, the 1st and 2nd Defendants filed before the Kwale Senior Resident Magistrate's Court ***Land Dispute Case Number 36 of 2008 Ramadhan Swalehe Mwatapha and Swalehe Abdalla Mwatapha -Versus - Sultan Khan Abdalla and Gulnar Sultan Khan”.*** The Decision of the Msambweni Land Dispute Tribunal Was adopted as a Judgement of the Magistrate's Court on 18th December, 2008.. The 1st Plaintiff and her late husband filed Judicial Review Application Number 27 of 2009 before the Mombasa High Court. The main prayer of the Application dated 9th March, 2009 were:- ***"THAT this Court be pleased to issue an order of certiorari to remove into this Honourable Court for purposes of quashing the decision of Msambweni Land Disputes Tribunal dated 18th December, 2008 and to proceed to quash the decision aforesaid****.* ***Judgement was delivered on 1st September****,* ***2009 by Justice M.K Ibrahim (as he then was) who stated as follows****;* ***"I am satisfied that the Interested party was duly served****.* ***The Respondent is not opposed to the application****.* ***The Interested Party appeared to have filed a separate suit to seek the same orders granted by the Tribunal****..* ***On the merits****, I* ***find that the Tribunal in effect made orders determining questions of ownership and revocation of Title****.* ***It clearly had no Jurisdiction to grant the orders made. The Title was issued after adjudication of land and it is only a Court of Law which can revoke the said Title. . I do grant prayer 1 of the Notice of Motion dated 9.3.09 with costs against the Interested Party****.****"*** 1. The Learned Counsel averred that the 1st and 2nd Defendants once again approached the Kwale Principal Magistrate Court in 2014. They used the same proceedings and Judgement of 2008 by the Msambweni Land Disputes Tribunal and also used the same Court file number 36 of 2008 and were issued with the following orders:- 2. ***That the land in dispute belongs to the Claimant****.* 3. ***That the land Kwale****/****Diani Settlement Scheme/201 be reverted to the Claimants namely:- RAMADHAN SWALEHE MWATAPHA and SWALEHE ABDALA MWATAPHA.*** 4. ***It is further ordered that the District Land Registrar Kwale to revoke the Title Deed in the names of the Objectors - SULTAN KHAN ABDALLA and GULNAR SULTAN KHAN.*** 5. According to the Learned Counsel, the 1st and 2nd Plaintiffs once again in the year 2022 filed Succession Cause No. E117 of 2022 In the Matter of the Estate of Ramadhan Swalehe Mwatapha before the Msambweni Kadhi's Court and recorded a consent on 16th September, 2022 (Page 33 of Plaintiff's Bundle of Documents). The Kwale Principal Magistrate's orders dated 20th July, 2014 were served upon the Land Registrar in Kwale and an entry was made on 24th June, 2014 as follows:- ***"24/6/14 Court orders dated 20th June, 2014 - Vesting Order to Ramadhan Swalehe Mwatapha and Swaleh Abdalla Mwatapha. 24/6/2014: Title Deed S/No. 0832210 issue"*** 1. The Counsel averred that there was Entry No. 6 dated 15th January, 2014 which came earlier than the other two entries which reads; ***"TITLE CLOSED ON SUB - DIVISION see NEW NUMBERS 3094 AND 3095"*.** 2. Plot Number KWALE/DIANI SS/3094 was later sub - divided into Number 5406, 5407,5408 and 5409 as per Green Card dated 9th January, 2023. (Entry No. 8). The Green Card for plot numbers KWALE/DIANI SS/3094 measuring 1.90 Ha and KWALE/DIANI SS)3095 measuring 0.10 Ha have entry number 4 indicating that the Plaintiffs Suit No. 2 of 2015 had been dismissed. The entries were dated 3rd June, 2022. Entry Number 5 in both green cards dated 20th September, 2022 are the names of Swalehe Abdalla Mwatapha and Almasi Abdalla Tapha. The Entries were made as a result of the consent recorded before the Msambweni Kadhi's Court. these green cards were annexed in the 1st Plaintiff's Supporting Affidavit for the Notice of Motion application dated 7th March, 2023. 3. It was the contention by the Counsel that this Honourable Court should note that the 1st and 2nd Defendants used the proceedings of the Msambweni Land Disputes Tribunal. 4. There was the Kwale Senior Resident Magistrate's Court proceedings of 2008. The Case Number Land Case No. 36 of 2008, which adopted the Tribunal's Judgement as its Judgement. There was the Kwale Principal Magistrate Court's orders dated 20th June, 2014 which used the same 2008 Tribunal's Judgment and ordered that the land belonged to Ramadhan Swalehe Mwatapha and Swalehe Abdalla Tapha. The same Land Case No. 36 of 2008 was used. 5. The Learned Counsel held that the Tribunal's proceedings were quashed by the Judgement of Justice Ibrahim in Mombasa Judicial Review Number 27 of 2009. The 1st Plaintiff testified that the orders of Justice Ibrahim were recorded at the Kwale Land Registry. The dismissal of Case No. 2 of 2015 is of no value as already the Tribunal's proceedings had been quashed. The 1st, 2nd, 6th and 7th Defendants could not have used the second orders from the Kwale Principal Magistrate's Court to declare the first two Defendants as owners of the land. 6. It was evident that the 1st and 2nd Defendants were deriving their claim of ownership from the Msambweni Land Disputes Tribunal. The Land Dispute's Tribunal Act No. 303 A was repealed. Section 3 of the Act provided for Limitation of Jurisdiction of the Land Disputes Tribunals as follows:- **S. 3 (1): Subject to this Act**, **all cases of a Civil nature involving dispute as to:-** 1. **The division of, or the determination of boundaries to Land including land held in common**. 2. **A claim to occupy or work on land; or** 3. **Trespass to land Shall be heard and determined by a Tribunal established under Section 4.** 4. The Plaintiffs submitted that the Msambweni Land Disputes Tribunal lacked the Jurisdiction to adjudicate on the suit land plot number KWALE/DIANI SS/201. The claim before the Tribunal was for ownership which was not covered by Section 3 of Cap 303 A. That was why Justice Ibrahim held that the Tribunal made orders determining questions of ownership and revocation of Title. It had no such jurisdiction. 5. In the case of “***Republic – Versus - Butula Land Disputes Tribunal & Another Busia ELC Judicial Review No. 5 of 2010”***, S. Kibunja J held that the Butala Land Dispute Tribunal had no jurisdiction to determine issues relating to ownership of land. The same position was held by Hon. Tuiyott J (as he then was) in “***Republic – Versus - Msambweni Land Dispute Tribunal (2012) kehc 5805(KLR****).* Justice Tuiyott state as follows at paragraph 12 of his Ruling delivered on 11th September, 2012:- ***"In entertaining a dispute involving ownership to the land and proceeding to order the cancellation and nullification of the Ex - parte Applicants Title the Tribunal was acting without jurisdiction. That the Tribunal does not have jurisdiction to deal with a dispute involving ownership of land in such a well established position that*** *it* ***would be needless to cite any of many Judicial decisions in support****.* ***The Tribunal acted ultra vires and its proceedings and order are amenable to Judicial Review****.****"*** 1. Further, the Learned Couse cited the case of:- “***Republic – Versus - Ololulung'a Land Dispute Tribunal & Another (2010) KEHC 836 (KLR)***, Justice W. Ouko (as he then was) stated as follows:- ***"The reference of the Tribunal was expressed to be a claim to occupy or work land****.* ***However****,* ***looking at the circumstances of the dispute, including the fact that the suit property was duly registered in the name of the Applicant and the decision of the Tribunal which*** *I* ***have set out at the beginning of this Ruling****,* ***and the fact that the Tribunal ordered a Transfer of the Title to a dissolved body, there cannot be doubt that the Tribunal made a determination as to the ownership of the suit property****.* ***It had no powers to decide, as*** *it* ***did, that the Title be cancelled and be re - issued to the 1st Interested Party****.* ***The role of the Resident Magistrate's court in matters determined by the Tribunal is restricted to receiving the Tribunal's decision together with any depositions or documents used before the Tribunal.******Secondly****,* ***the court must enter Judgment in accordance with the decision of the Tribunal and****,* ***upon Judgment being entered, a decree is issued****..* ***It is clear that Judgment was entered. However, upon being moved, the Senior Principal Magistrate ordered the Executive Officer, Narok Law Courts to execute transfer documents. While the decree is in conformity with the decision of the Tribunal****,* ***the order directed at the Executive Officer was*** *in* ***excess of the magistrate's jurisdiction."*** 1. The Learned Counsel averred that the Plaintiff's ownership of the suit land emanated from the initial adjudication. They bought it from the original allottee. They never sold the land. It was his submission that the Plaintiffs had proved their case to the required standard. The Msambweni Land Disputes Tribunal’s process was illegal, Null and Void. The orders made by the Tribunal were issued without jurisdiction. It should be quashed and could not be the basis of claiming ownership by the 1st and 2nd Defendants. 2. In conclusion, the Learned Counsel urged the Court to have Judgement entered against the Defendants as prayed in the Plaint. According to the Counsel, the land should be restored to its original form being KWALE/DIANI SS/201 and be in the names of the 1st Plaintiff and her late husband. The Counsel further prayed for costs of the suit. 3. **Analysis and Determination** 4. I have keenly assessed the filed pleadings by all the Plaintiffs and Defendants herein, the written submissions and the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 5. In order to reach an informed, reasonable and just decision in the subject matter, the Honourable Court has crafted the following six (6) for its determination. These are: - 6. ***Whether the Plaintiffs are lawful proprietors of parcel Kwale/Diani SS/201.*** 7. ***Whether the suit is barred by Res - Judicata or limitation.*** 8. ***Whether the subdivisions and registrations in favour of the Defendants were fraudulent or illegal.*** 9. ***Whether the Counter - Claim has any merit and whether it establishes superior ownership rights?*** 10. ***What are the appropriate reliefs?*** 11. ***Who is to pay costs of this suit and those of the Counter - Claim?*** ***ISSUE No. a). Whether the plaintiffs are lawful proprietors of parcel*** ***Kwale/Diani SS/201.*** 1. Under this sub title, we shall examine the legal ownership of the suit property and whether the Plaintiffs are the lawful proprietors of Kwale/Diani SS/201. The right to own and acquire property in Kenya is a Constitutional right to be enjoyed by all persons. It is hinged on the provision of Article 40 of the Constitution of Kenya, 2010 which provides as follows:- **(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—** **(a) of any description; and** **(b) in any part of Kenya.** **(2) Parliament shall not enact a law that permits the State or any person--** **(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or** **(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).** **(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-** **(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or** **(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that** **(i) requires prompt payment in full, of just compensation to the person; and** **(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.…”** 1. The Land Registration Act (LRA) is the principal statute governing land registration and the rights of registered proprietors in Kenya. Further, a title holder enjoys statutory protection by dint of Section 26 (1) (b) of the Land Registration Act, No. 3 of 2012 which provides: - **The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … 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; or** **(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”** 1. It is evident that the proprietary rights of a registered owner of property are clearly set out under Sections 24, 25 and 26 of the Land Registration Act 2012, which provide as follows:- **24. “Subject to this Act** **(a) The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”** 1. Further Section 25(1) provides that for such a registered owner, his/her rights are indefeasible and are held free from all other interests and claims and that the rights can only be defeated in the manner provided under the Act. 2. The central issue of whether the Plaintiffs are lawful proprietors of parcel Kwale/Diani SS/201 turns on both documentary title and possession. From the pleadings and evidence, the Plaintiffs produced the original Certificate of Title Deed issued in the name of Sultan Khan Abdulla on 9th October, 1998, together with supporting documents and a High Court Judgment in JR No. 27 of 2009, which had quashed earlier attempts to revoke their title. They testified that they had fenced the property, remained in occupation, and resisted encroachment. 3. The Defendants, on the other hand, alleged ancestral allotment under the Settlement Scheme but failed to produce Letters of Allotment, receipts, or Discharge of Charge documents to substantiate their claim. 4. Under the provision of Section 26 of the Land Registration Act, a registered title is prima facie evidence of ownership unless it is shown to have been acquired through fraud, misrepresentation, or illegality. The Defendants’ allegations of fraud were not supported by documentary proof, while the Plaintiffs’ title was backed by registration records and a prior High Court Judgment affirming its validity. 5. The inquiry is multifaceted, requiring a careful examination of the validity of the plaintiffs’ title deed, the effect of the High Court Judgment in JR No. 27 of 2009, the allegations of fraud or irregularity raised by the Defendants, and any competing claims of ancestral ownership or adverse possession. The analysis is grounded in the relevant statutory framework—primarily the Land Registration Act and the Land Adjudication Act—and is informed by recent and authoritative case law, including ***“Rutune Limited – Versus - Kandie & others [2023] KECA 376”***, as well as the evolving jurisprudence on land fraud, succession, and adverse possession in Kenya. 6. Thus, the Land Registration Act establishes a system of registration that confers strong, but not unassailable, rights on the registered proprietor. The Certificate of Title is not immune to challenge, especially where fraud, illegality, or overriding interests are established. This statutory scheme is designed to balance the need for certainty in land transactions with the imperative of justice in cases of fraud, mistake, or the recognition of customary and equitable interests. 7. The Land Adjudication Act, Cap. 284 (LAA) governs the ascertainment and recording of rights and interests in community land, particularly in areas transitioning from customary to registered tenure. The process involves the declaration of an adjudication section, the lodging and investigation of claims, the preparation of an adjudication register, and the opportunity for objections and appeals lodged and determined by the Minister before the register is finalized and titles are issued. The decision by the Minister is final. 8. Section 26 of the Land Adjudication Act allows any person named in or affected by the adjudication register to object to its contents within sixty days of notice of completion. Section 29 provides for appeals to the Cabinet Secretary against determinations of objections. Once all objections and appeals are resolved, the adjudication register becomes final, and the Chief Land Registrar effects registration in accordance with the register. 9. Section 30 of the Land Adjudication Act restricts the institution of civil proceedings concerning interests in land within an adjudication section until the adjudication register has become final, unless the adjudication officer consents. This is designed to prevent parallel litigation and ensure the integrity of the adjudication process. 10. The Land Adjudication Act provides a comprehensive and exclusive mechanism for the determination of rights in adjudication areas. Once the process is complete and titles are issued, the resulting registration is presumed to reflect the true legal position, subject to the exceptions and remedies provided by law. 11. The Environment and Land Court (ELC), established under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, has exclusive jurisdiction to hear and determine disputes relating to the environment, use, occupation, and title to land. The ELC has original and appellate jurisdiction, and its decisions may be appealed to the Court of Appeal and, in appropriate cases, to the Supreme Court. 12. Kadhi’s Courts, by contrast, have limited jurisdiction to determine questions of succession and inheritance in cases where all parties are Muslims and consent to the court’s jurisdiction. Their decisions may be appealed to the High Court, but they do not have jurisdiction to determine disputes over title where the underlying ownership is contested by non-Muslims or where the dispute transcends matters of succession. 13. This Honourable Court is the primary forum for the resolution of land disputes, including those involving questions of title, fraud, adverse possession, and customary rights. The jurisdiction of other bodies, such as the Kadhi’s Court, is limited and does not extend to the determination of contested ownership where the parties do not all profess the Muslim faith or where the dispute is not purely one of succession. 14. The Plaintiffs’ claim to parcel Kwale/Diani SS/201 is anchored on their possession of a title deed issued by the Land Registrar. Under Section 26(1) of the Land Registration Act, this certificate of title is prima facie evidence of their absolute and indefeasible ownership, subject only to the exceptions noted above. 15. Recent jurisprudence, including the Supreme Court’s decision in ***“Dina Management Limited – Versus - County Government of Mombasa & 5 others (Petition No. 8 (E010) of 2021)”***, has clarified that while the Certificate of Title is strong evidence of ownership, it is not conclusive where the process leading to its issuance was tainted by illegality, fraud, or procedural irregularity. The Supreme Court emphasized that the burden of establishing the validity of the root of title falls on the party asserting ownership, particularly in the face of a challenge. 16. The Plaintiffs’ title deed is a powerful ***“Prima facie***” conclusive evidence of ownership, but rebuttable, presumption of ownership. If the Defendants can demonstrate that the title was acquired through fraud, illegality, or procedural impropriety, or that overriding interests exist, the plaintiffs’ claim may be defeated. 17. Given the prevalence of land fraud in Kenya, courts and practitioners have emphasized the importance of verifying the authenticity of title deeds through official searches, examination of registry records, and scrutiny of the chain of title. The process typically involves: 18. Conducting an official search at the relevant land registry or through digital platforms such as ArdhiSasa or eCitizen, to confirm the registered owner, encumbrances, and any pending disputes. 19. Examining the physical title deed for security features, watermarks, and official stamps. 20. Reviewing the history of ownership and transfers, including the circumstances of first registration and any subdivisions or transmissions. 21. Consulting the adjudication register and related records, particularly in areas subject to adjudication under the Land Adjudication Act. 22. Engaging a property lawyer and, where necessary, a forensic document examiner to assess the authenticity of documents. 23. The Plaintiffs must demonstrate not only that they hold a Certificate of Title, but also that the process leading to its issuance was lawful and regular. Any gaps, inconsistencies, or red flags in the chain of title may undermine their claim, especially if the defendants can point to evidence of fraud or irregularity. 24. The burden of proof in civil cases generally rests on the party asserting a fact - see the provision of Sections 107, 108 and 109 of the Evidence Act, Cap. 80. In cases where the validity of a title deed is challenged, the initial burden lies with the challenger to raise a credible case of fraud, illegality, or overriding interest. However, once a prima facie case is established, the burden shifts to the registered proprietor to explain the root of their title and demonstrate its legitimacy. The standard of proof for fraud is higher than the balance of probabilities, but lower than beyond reasonable doubt. Fraud must be specifically pleaded and strictly proved, as reiterated in cases such as ***“Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR”*** and ***“Kinyanjui Kamau – Versus - George Kamau [2015] eKLR”***. 25. The Plaintiffs must be prepared to go beyond the mere production of a title deed and to establish, on a balance of probabilities (and to a higher standard where fraud is alleged), that their title is valid and free from taint. 26. Further, Judicial review proceedings under the Law Reform Act and the Fair Administrative Action Act are designed to challenge the legality, rationality, and procedural fairness of administrative decisions, including those of land adjudication officers and tribunals. The High Court’s jurisdiction in such matters is supervisory, not appellate: it does not substitute its own decision for that of the administrative body, but may quash decisions made without or in excess of jurisdiction, or in breach of the rules of natural justice. 27. In the case of:- ***“Republic – Versus - Meru North District Land Disputes Tribunal [2009] KEHC 1904 (KLR)”***, the High Court quashed the decision of the Land Disputes Tribunal on the ground that the Tribunal had exceeded its jurisdiction by ordering the subdivision and transfer of registered land—a power reserved to the High Court or the Resident Magistrate’s Court with appropriate jurisdiction. The Court reaffirmed the principle that the Tribunal’s jurisdiction was limited to disputes as to boundaries, occupation, or trespass, and did not extend to questions of title or beneficial interest. 28. The effect of the High Court’s Judgment is to nullify any orders made by the Tribunal that purported to affect the title to the land in question. If the Plaintiffs’ title to Kwale/Diani SS/201 was derived from or affected by such a Tribunal decision, the High Court’s quashing order would render any subsequent registration based on that decision void ab initio. Conversely, if the plaintiffs’ title was unaffected by the Tribunal’s decision, the judgment would have no direct impact on their claim. 29. A Judgment of the High Court in judicial review proceedings is final and binding, subject to appeal. The “***Doctrine of Res Judicata”*** as envisaged under the provision of Section 7 of the Civil Procedure Act, Cap. 21 precludes the re-litigation of issues that have been finally determined between the same parties or their privies, provided the court had jurisdiction and the decision was on the merits. If the validity of the Plaintiffs’ title was directly in issue and determined in JR No. 27 of 2009, the doctrine of res judicata may bar the re-opening of the same question in subsequent proceedings. However, if the issues or parties are not identical, or if the decision was not on the merits, res judicata does not apply. 30. It is trite law that fraud must be specifically pleaded and strictly proved. The particulars of the alleged fraud must be set out in the pleadings, and the acts alleged to be fraudulent must be distinctly alleged and distinctly proved; fraud cannot be inferred from the facts. The standard of proof is higher than the balance of probabilities, reflecting the seriousness of the allegation, but does not reach the criminal standard of beyond reasonable doubt. 31. Recent cases, such as ***“Administrators of the Estate of Letoire Ole Ntirori (Deceased) & 9 Others – Versus - Mwangi & 25 Others [2025] KECA 1585 (KLR)”***, have reaffirmed that mere suspicion or inconsistencies are insufficient to impeach a registered title; concrete evidence is required. Where fraud is established, the provision of Section 26(1) of the Land Registration Act allows the court to cancel the title, even if the registered proprietor was not personally involved, provided the title was acquired through a corrupt scheme or procedural impropriety. Section 80 of the Land Registration Act empowers the court to order rectification of the register by cancelling or amending any registration obtained by fraud or mistake, subject to the protection of bona fide purchasers for value without notice. 32. The Penal Code and the Land Registration Act also provide for criminal sanctions against those who forge title deeds or procure registration by fraud, including imprisonment and fines. If the defendants can prove that the Plaintiffs’ title was obtained by fraud, forgery, or through a corrupt scheme, the court is empowered to cancel the title and restore the register to its previous state. The Plaintiffs would also be exposed to criminal liability and potential civil claims for damages. 33. Given the sophistication of land fraud in Kenya, courts have increasingly relied on official registry searches, forensic document examination, and expert testimony to determine the authenticity of title deeds and the legitimacy of the registration process. Justice Sila Munyao observed as follows in the case of:- ***“Mariera & another – Versus - Ongwancho – (2023) eKLR”***:- ***“31.The fraudulent scheme is not difficult to decipher. From my assessment of the evidence herein, this is how the fraud works: The Land Registry manually keeps instruments of disposition in what they call a Land parcel file. They also keep registers to indicate entries of such dispositions. The registers, or cards, are in two colours; a Green Card for a freehold title, and a White Card for the leasehold title. Land fraudsters have discovered that they can cause to disappear the genuine register (Green Card or White Card) from the Lands registry. They have also discovered that they can cause to vanish the other genuine supporting title documents in the parceI file. Indeed, nothing complicated in doing so; you simply get crooked personnel in the Lands office to pluck out these documents physically from the records in the Lands registry. They are then spirited out of the registry. In place, other fraudulent documents purporting to be documents of dispositions related to the land in question will be planted. A new Green card or White card will also be created and planted in the register after the original genuine one will have been made to evaporate into thin air. Thus, if a person interested in the land, say a buyer or chargor, goes to conduct a search or inspect the parcel file, it is the fraudulent documents and fraudulent register that they will find. A search will be issued indicating the name of the fraudster as the proprietor and the fraudster can then proceed to deal with the title as he so wishes. He can either sell or charge the title, or simply take over the land from the genuine owner if that was his intention. In all this, the fraudster is emboldened in the belief that if the genuine owner, or any other person goes to the Lands registry, what he will find are his documents, i.e. the fraudulent ones, and that there will be no record of the genuine documents or register. If you call the Land Registrar to testify, he/she may very well tell you that their records indicate the fraudulent owner as the owner of the land. The genuine owner of the land is left in a limbo. If he has nothing in his hands to demonstrate what would be the genuine dispositions, and the hope and prayer that the court is going to believe him over the other evidence, he may very well lose his land through a devious scheme.*** ***32.Courts need to be alive to this new kind of fraud and exercise caution when dealing with cases concerning two title holders. It is trite that only one title is the correct one; but which one? A careful and thorough analysis needs to be done. The court may need to call for, and look at the original documents. If a person has none, he should explain why he only has copies. Unless the documents overwhelmingly speak for themselves, persons shown in the dispositions need to be called as witnesses unless explanation is given as to why they cannot come to testify. At times, a court will need to go out of its way to call for evidence which none of the parties have produced. The root of title and paper trail needs to be carefully analyzed”*** 1. The Land Registrar’s records, including the green card, presentation book, and adjudication register, are critical in tracing the root of title and identifying any irregularities or duplications. The Plaintiffs’ ability to demonstrate a clean and unbroken chain of title, supported by official records and free from anomalies, is essential to rebutting allegations of fraud or irregularity. 2. Where land is inherited, the Law of Succession Act, Cap. 160 and the Land Registration (General) Regulations, 2017 require that transfers be effected only after confirmation of grant or probate, and that the personal representative applies for registration as administrator before transferring the land to beneficiaries. The Kadhi’s Court has jurisdiction to determine succession matters among Muslims, but only where all parties consent and the dispute is confined to inheritance, not contested title. 3. Recent appellate authority, including ***“Rutune Limited (Supra)”***, has clarified that the Kadhi’s Court cannot vest property in an administrator where the underlying title is contested or where the property was not registered in the name of the deceased at the time of death. The Environment and Land Court retains exclusive jurisdiction to determine questions of title and ownership. If the defendants’ claim is based on a succession order from the Kadhi’s Court, but the property was not registered in the name of the deceased at the time of death, or if the plaintiffs were not parties to the succession proceedings, the order may be vulnerable to challenge. The ELC has the power to set aside such orders and restore the register to reflect the true legal position. 4. Customary trusts are recognized as overriding interests under the provision of Section 28(b) of the Land Registration Act and are binding on registered proprietors even if not noted in the register. The Supreme Court in ***“Isack M’Inanga Kiebia – Versus - Isaaya Theuri M’Lintari & another [2018] eKLR”*** clarified that to establish a customary trust, the claimant must prove: 5. The land was, before registration, family, clan, or group land; 6. The claimant belongs to such family, clan, or group; 7. The relationship is not remote or tenuous; 8. The claimant could have been entitled to registration but for intervening circumstances; 9. The claim is directed against a registered proprietor who is a member of the family, clan, or group 10. Physical possession or occupation is not a mandatory requirement, but evidence of historical use, family arrangements, and the intention of the parties is relevant. If the defendants can establish, on a balance of probabilities, that the land was ancestral or family land and that the plaintiffs hold it as trustees for the family, the court may declare a customary trust and order rectification of the register to reflect the beneficiaries’ interests. 11. Land Adverse possession is governed by the provision of Sections 7 and 38 of the Limitation of Actions Act and Section 28(h) of the Land Registration Act. To succeed, the claimant must prove continuous, open, exclusive, and hostile possession of the land for at least twelve years, without the consent of the registered owner. The period begins to run from the date of registration of the proprietor against whom the claim is made. 12. Recent appellate decisions, such as ***“Kamia & another – Versus - King’oo & 11 others [2024] KECA 1669”***, have reaffirmed that time does not begin to run until the person against whom the claim is brought becomes the registered proprietor, and that occupation with permission or under a void transaction does not qualify as adverse until the permission is withdrawn or the transaction is repudiated. If the Defendants or their predecessors have been in continuous, open, notorious and exclusive possession of the land for twelve years or more, without the Plaintiffs’ consent, and the Plaintiffs have failed to assert their rights, the Defendants may acquire title by adverse possession. However, the burden of proof is strict, and any interruption or acknowledgment of the Plaintiffs’ title resets the clock. 13. In such a case, the provision of Section 80 of the Land Registration Act empowers the court to order rectification of the register by cancelling or amending any registration obtained by fraud or mistake, subject to the protection of bona fide purchasers for value without notice. Section 81 provides for indemnity to persons suffering damage by reason of rectification, except where the claimant contributed to the damage by fraud or negligence. The Registrar also has limited powers of rectification under the provision of Section 79, primarily in cases of formal errors or with the consent of all affected parties, or where fraud is established. 14. The court’s discretion is guided by the principles of equity, the need to protect innocent purchasers, and the imperative of justice in the particular circumstances of the case. The appropriate remedy depends on the facts established at trial. Where fraud or overriding interests are proved, the court will not hesitate to cancel the title and restore the register to its lawful state. Where the Plaintiffs are bona fide purchasers for value without notice, the court may protect their title and award damages to the aggrieved party. 15. Given the prevalence of land fraud and the complexity of land transactions in Kenya, the following practical steps are recommended for verifying the authenticity of a title deed and the legitimacy of ownership in Kwale County: 1. Conduct an Official Search: Use the Ministry of Lands’ ArdhiSasa or eCitizen platforms, or visit the Kwale Land Registry in person, to obtain a Certificate of Official Search confirming the registered owner, encumbrances, and any pending disputes. 2. Examine the Title Deed: Check for security features, watermarks, official stamps, and the absence of alterations or erasures. 3. Review the Chain of Title: Trace the history of ownership, including the circumstances of first registration, any subdivisions, transmissions, or successions, and the resolution of any objections or appeals during adjudication. 4. Consult the Adjudication Register: In areas subject to adjudication, review the adjudication register and related records to confirm the legitimacy of the registration process. 5. Engage a Property Lawyer: Retain a qualified lawyer to conduct due diligence, review documents, and advise on legal risks. 6. Engage a Licensed Surveyor: Verify the physical boundaries and ensure the land matches the description in the title deed and registry records. 7. Check for Court Orders or Pending Disputes: Search the records of the Environment and Land Court, the Kadhi’s Court, and other relevant forums for any pending litigation, injunctions, or succession proceedings affecting the land. 8. Consult Local Authorities and Community Leaders: Inquire about any customary claims, family arrangements, or unresolved disputes that may affect the land. 9. Consider Forensic Examination: Where forgery is suspected, engage a forensic document examiner to assess the authenticity of the title deed and related documents. 16. These steps are essential to mitigate the risk of fraud, ensure compliance with legal requirements, and protect the interests of all parties in land transactions. 17. So now to answer the question of whether the Plaintiffs are the lawful proprietors, the Court must first answer the question of if the Plaintiffs held a valid certificate of title. The plaintiffs are presumed to be the absolute and indefeasible owners of parcel Kwale/Diani SS/201, subject only to encumbrances, overriding interests, and the exceptions in Section 26(1) of the Land Registration Act. The burden shifts to the Defendants to demonstrate, on a higher standard, that the title was acquired by fraud, illegality, or procedural impropriety, or that overriding interests (such as a customary trust or adverse possession) exist. 18. The second question that the Court needs to answer is if the title was acquired through fraud or irregularity; if the defendants can prove that the plaintiffs’ title was obtained by fraud, forgery, or through a corrupt scheme, the court is empowered to cancel the title and restore the register to its previous state. The Plaintiffs would lose their status as lawful proprietors and the register would be rectified accordingly. ***ISSUE No. b). Whether the suit is barred by res judicata or limitation.*** 1. Under this sub title, the Honourable Court shall examine whether this suit is barred by res judicata or limitation. From the extract of the pleadings, the Court notes that: **“The Plaintiffs state that they learnt that the High Court case Number 2 of 2015 had been dismissed and their advocates on record in the matter did not inform them about it and therefore the 1st and 2nd Respondents took advantage and further subdivided the suit property.”** **“The plaintiffs aver that they were called by a neighbour on 20th February informing them that there were some surveyors on the ground putting up beacons.”** 1. Under this, the Honourable Court shall look at the definition of procedure according to Black’s Law Dictionary, 9th Edition which provides as follows: 2. **A specific method or cause of action.** 3. **The judicial rule or manner for carrying on a civil lawsuit or criminal prosecution also termed rules of procedure.** 4. The doctrine of ***“Res Judicata”*** is provided for under the provision of Section 7 of the Civil Procedure Act in that: - **“No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”** 1. The Civil Procedure Act has also provided explanations with respect to the application of the res judicata rule. Explanation 1-6 are in the following terms: **Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.** **Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.** **Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.** **Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.** **Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.** **Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.** 1. This court in the case of ***“Kenya Commercial Bank Limited – Versus - Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case)”*** held as follows regarding the doctrine of res judicata: 2. ***“Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu – Versus - Attorney-General, Misc Application No0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.*** 3. ***In Silas Make Otuke – Versus - Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas – Versus - The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.*** 4. ***The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.*** 5. ***It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.*** 6. ***The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):*** 7. ***The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”*** 8. ***The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:*** 9. ***… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].*** 10. ***Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa – Versus - James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.*** 11. ***That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET – Versus - Attorney-General & another, [2012] eKLR, thus:*** 12. ***The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi – Versus - National Bank of Kenya Limited and others, [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu – Versus - Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”*** 13. For res judicata to be invoked in a civil matter the following elements must be demonstrated: **a)There is a former judgment or order which was final;** **b)The judgment or order was on merit;** **c)The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and** **d)There must be between the first and the second action identical parties, subject matter and cause of action.** (See ***“Uhuru Highway Developers Limited – Versus - Central Bank of Kenya & others [1999] eKLR”*** and See the decision of the Court of Appeal in ***“Nicholas Njeru – Versus - Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR”***) 1. Therefore, the issue in a current suit must have been decided by a competent court. Secondly, the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. Thirdly, the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title. (See the case of ***“Karia & another – Versus - Attorney General & others (2005) 1EA 83”***). It therefore follows that the essence of the doctrine of res judicata is to bring an end to litigation and a party should not be vexed twice over the same cause. This was what was held with approval in ***“Omondi – Versus - National Bank of Kenya Ltd and others (2001) EA 177”***. 2. The application of the principle of res judicata has the potential of locking out a person from the doors of justice or even reaching the out-stretched arms of justice if the claim is disposed of without venturing into the merits. Consequently, the factors and circumstances ought always to be nit-picked and caution exercised. The court ought to be in no doubt that the principle is applicable to the facts and circumstances of each case. 3. Under the doctrine of res judicata the Court must ask, in sequence: 4. **Were the parties in the earlier proceeding the same parties (or parties under whom they claim) as in the present suit?** 5. **Was the matter now in issue directly and substantially in issue in the former suit?** 6. **Was the former suit heard and finally decided by a court competent to try the subsequent suit?** 7. If the answer to all three is yes, res judicata ordinarily applies; if any answer is no, the plea fails. 8. On Limitations. The provision of Section 4(4) of the Limitation of Actions Act bars execution or enforcement of a Judgment after the statutory period (commonly understood and applied as twelve years in the Kenyan context). A Judgment which is not executed within the statutory period may be treated as stale and unenforceable. 9. For limitation under Section 4(4) the Court must distinguish (i) an attempt to execute or enforce an earlier Judgment (which may be time‑barred after 12 years) from (ii) a fresh challenge to subsequent administrative acts (for example, registration, revocation or subdivision) that post‑date the earlier Judgment. The statutory bar on execution does not automatically extinguish a substantive right to challenge later irregular acts that affect title, unless the claimant is seeking to rely on the stale Judgment as the sole basis for a remedy that is itself time‑barred. 10. The 1st and 2nd Defendants rely on the dismissal of ELC No. 2 of 2015 (Mombasa) and assert that the present suit raises the same issues. However, the Plaintiffs, plead that they only discovered subsequent sub - divisions and new registrations after the dismissal and that they were not informed of the dismissal by their advocates. Therefore, the pleadings disclose a factual matrix in which new administrative acts (registration, subdivision, alleged encroachment and fresh entries in the registry) occurred after the earlier proceedings. The Court must therefore examine whether the earlier dismissal disposed finally of the same cause of action or only of the earlier procedural claim. The mere fact of a prior suit between the parties is not, by itself, decisive. 11. The defence admits that ELC No. 2 of 2015 was dismissed on 10th May, 2022 under the provision of Order 12 Rule 3 of the Civil Procedure Rules (failure to prosecute). A dismissal under Order 12 Rule 3 is ordinarily a dismissal for want of prosecution and is not a determination on the merits of the substantive title dispute. Where a prior suit was dismissed for procedural non‑compliance or non‑appearance, courts have repeatedly held that res judicata will not apply to bar a fresh suit on the same cause of action unless the earlier decision was a final adjudication on the merits. The record before this Court (as pleaded) indicates the earlier dismissal was procedural rather than a final adjudication on the substantive title question. Consequently, the dismissal does not automatically satisfy the “heard and finally decided” limb of section 7. 12. The Plaintiffs’ present claim challenges subsequent acts: alleged fraudulent revocation, registration of sub - divisions (Kwale/Diani SS/3094, 3095, 5406–5409) and encroachment by third parties. These are discrete administrative events that post‑date the year 2015 proceedings. Even where earlier litigation touched on title, a later and separate act of registration or subdivision effected after the earlier Judgment may give rise to a fresh cause of action. The pleadings therefore disclose new facts and new acts which were not, and could not have been, finally determined in the earlier procedural dismissal. On the pleaded material, the “same matter” requirement for res judicata is not satisfied. 13. The Defendants argue that the year 2009 High Court Judgment (JR 27 of 2009) is stale under Section 4 (4) and therefore cannot be relied upon. It is correct as a general proposition that a Judgment left unexecuted for more than twelve years may be unenforceable. However, two points are critical here: * **First, the Plaintiffs are not simply seeking execution of the 2009 Judgment; they are seeking to set aside later registrations and sub - divisions and to have the land registry records corrected. A statutory bar on execution of an old Judgment does not ipso facto preclude a court from granting relief against later fraudulent or irregular administrative acts that extinguish or alter title. The Court must therefore distinguish relief that is an execution of the old Judgment from relief that is a direct challenge to subsequent unlawful acts.** * **Second, even if the 2009 Judgment cannot be executed, the Plaintiffs may still rely on it as evidence of the legal position previously declared by the High Court, particularly where subsequent registrations are alleged to be fraudulent or in contravention of that earlier decision. The limitation provision does not convert a substantive wrong committed after the Judgment into a time‑barred matter where the wrong itself is recent and actionable. The pleadings allege that the title was revoked and sub - divided after the 2009 judgment and after the 2015 dismissal; those later acts are the gravamen of the present suit and, on the face of the pleadings, are not themselves time‑barred.** 1. The Defendants bear the burden of establishing that the present suit is barred by Res Judicata or limitation. To succeed on res judicata they must show the earlier suit was between the same parties (or privies), raised the same matter directly and substantially, and was heard and finally decided on the merits by a competent court. To succeed on limitation they must show that the plaintiffs’ present cause of action is merely an attempt to enforce or revive a Judgment that is statute‑barred, rather than a fresh challenge to later administrative acts. 2. On the pleadings before the Court the Defendants have not discharged that burden: the earlier dismissal was procedural; the present suit alleges fresh acts (revocation, subdivision, new registrations and encroachment) that post‑date the earlier proceedings; and the Plaintiffs allege they only discovered the new registrations recently. The pleaded facts therefore raise triable issues rather than establishing a legal bar as a matter of law. 3. For the reasons given above, the Court finds that, on the pleaded material, the present suit is not barred by res judicata. The dismissal of ELC No. 2 of 2015 under the provision of Order 12 Rule 3 of the Civil Procedure Rules, 2010 was procedural and not a final adjudication on the merits that would preclude a fresh claim based on subsequent acts. Further, the suit is not barred by limitation under the provision of Section 4 (4) in the sense contended by the Defendants: while the year 2009 Judgment may be stale for purposes of execution after twelve ( 12 ) years, that statutory bar does not automatically extinguish a Plaintiff’s right to challenge later fraudulent or irregular registrations and sub - divisions effected after that Judgment. The Defendants have not shown as a matter of law that the Plaintiffs’ present cause of action is time ‑ barred or that the Plaintiffs are merely seeking to enforce a stale Judgment rather than to remedy recent wrongs. ***ISSUE No. c). Whether the sub - divisions and registrations in favour of the Defendants were irregular, fraudulent or illegal.*** 1. Under this heading the Court must determine whether the subsequent sub - divisions and registrations in favour of the Defendants were irregular, fraudulent or illegal. The inquiry requires **(a) identification of the acts complained of (revocation, re‑registration, subdivision and issuance of new titles);** **(b) the legal standard and burden of proof for fraud in land registration matters; and** **(c) application of the pleaded facts and the evidence adduced at trial to that standard.** 1. Fraud in land transactions has been a recurring theme in Kenyan jurisprudence. In the course of time, I am on record having issued strong precedence condemning fraudulent dealings in land as well as my Counterparts in the Environment and Land Court. 2. The Plaintiffs state that the 6th and 7th Defendants acting on the instructions of the 1st and 2nd Defendants and the late Ramadhan Swaleh Mwatapha purported to revoke and change ownership of the Plaintiff's title to the property referred to as KWALE/DIANI SS/201 vide an award in land case No. 36 of 2008 issued by the Msambweni District Land Dispute Tribunal and registered at the Principal Magistrates court at Kwale. 3. The Plaintiffs further prayed for a declaration that the registration of the suit property in favour of the 1st and 2nd Defendants as well as the late Ramadhan Swaleh Mwatapha was fraudulent, irregular and illegal. The provision of Section 26 of the Land Registration Act, Act No. 3 of 2012, provides that a title which was acquired by way of fraud or misrepresentation, where a person is proved to be a party can be attacked. So too a title which was acquired illegally, unprocedurally or through a corrupt scheme. The said Section is drawn as follows :- **26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—** **(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or** **(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.** **(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.** 1. Therefore, unless there is proof that the acquisition of title by a registered proprietor was by fraud, misrepresentation, illegality or corruption, registration vests in a proprietor of land, absolute and indefeasible rights. In the case of ***“Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No239 of 2009”***, the Court of Appeal held that; ***“We have stated that when a registered proprietor root title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”*** 1. When a party alleges fraud, they must specifically plead the particulars thereof and strictly prove the same. The standard proof of fraud is slightly higher than the standard of proof in criminal cases of beyond reasonable doubt. In the case of ***“Kinyajui Kama – Versus – George Kamau [2015] eKLR”*** the Court expressed itself as follows: ***“……….it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo – Versus – Ndolo [2008] 1KLR (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………..”*** 1. In the instant case, the Plaintiffs plead that after JR 27 of 2009 (which quashed an earlier award) the title was nonetheless revoked and the land subsequently sub - divided and re‑registered into multiple parcels (Kwale/Diani SS/3094, 3095, 5406–5409). The pleadings and the plaintiff’s oral testimony identify: (a) registration entries and new titles; (b) a boundary identification that revealed encroachment; and (c) contemporaneous police investigations into alleged fraudulent acquisition. These are concrete administrative acts occurring after the 2009 judgment and after the 2015 proceedings. 2. The Plaintiff produced a bundle (Plaintiff exhibits Numbers 1–22) and gave oral evidence confirming original title in the late Sultan Khan and subsequent discovery of revocation and sub - division at the lands registry. The 6th and 7th Defendants (Registrar and Surveyor) denied wrongdoing in their pleadings and put the Plaintiffs to strict proof. The 1st and 2nd Defendants denied Plaintiffs’ occupation and asserted lawful registration and possession. At trial the Plaintiffs called one witness (PW ‑ 1) while the Defendants closed their case without calling witnesses; the Registrar and Surveyor filed pleadings but did not lead oral evidence. The absence of direct evidence from the officials responsible for registration weakens the Defendants’ factual rebuttal of the fraud allegations. 3. The provision of Section 107(1) of the Evidence Act provides that: - **“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** 1. Section 108 provides:- **“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”** 1. And Section 109 provides:- **“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided for by law that the proof of that fact shall lie on any particular person.”** 1. In the case of ***“Charter House Bank Limited (Under Statutory management – Versus - Frank N. Kamau [2016] eKLR”*** the court of appeal when discussing the burden of proof on the Plaintiff in a situation where the Defendant failed to adduce evidence stated that: - ***“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the Defendant’s failure to call evidence, the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the Defendant.*** ***…………The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the Plaintiff is not entitled to Judgement merely because the Defendant has not testified’’*** 1. In the case of:- ***“Kimani Ruchure – Versus - Swift Rutherfords & Co. Ltd (1980)KLR 10”*** Kneller J held that ***“the Plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion)”*** 1. Similarly, in the case of ***“Kirugi and Another – Versus - Kabiya & 3 Others (1987) KLR 347”***, the Court of Appeal held that:- ***“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.”*** 1. Also, in the case of ***“Gichinga Kibutha – Versus - Caroline Nduku (2018) eKLR”***, the Court held that:- ***“It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”*** 1. While in the case of:- ***“Samson S. Maitai & Another – Versus - African Safari Club Ltd & Another [2010] eKLR”***, Emukule J observed: - ***“……. I have not seen a judicial definition of the phrase ‘Formal Proof’. ‘Formal’ in its ordinary Dictionary meanings - refers to being ‘methodical’ according to rules (of evidence). On the other hand, according to Halsbury’s Laws of England, Vol. 15, para, 260, ‘proof’ is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.”*** 1. In ***“Rosaline Mary Kahumbu – Versus - National Bank of Kenya Ltd [2014] eKLR”***, the Court held: - ***“In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its merits.”*** 1. In this regard, on the pleaded facts and exhibits there are several indicators that require careful scrutiny: * **Subsequent sub - division and issuance of multiple titles that, if effected despite a subsisting High Court order, would be irregular.** * **Allegations of loss or disappearance of original allotment records at the Settlement Registry and later unexplained changes in registry entries (as pleaded in the counterclaim).** * **Police investigation and OB entry arising from a complaint about the change in ownership and ground activity. These facts, while not conclusive of fraud, corroborate the plaintiffs’ claim of suspicious circumstances surrounding the change of title.** 1. The 1st , 2nd , 6th and 7th Defendants relied on statutory powers (rectification/cancellation) and on the contention that the tribunal’s inquisitorial recommendation justified registrar action. The Court must assess whether the Registrar acted within the statutory scheme and whether any such action complied with the High Court’s earlier order. If the Registrar acted in obedience to a lawful tribunal determination made before JR 27 of 2009, that may be lawful; but if the Registrar registered subdivisions after JR 27 of 2009 in defiance of the High Court order, that conduct is irregular and potentially unlawful. 2. The Counter - Claim alleges collusion between a District Commissioner and registry officers to alter records. Such allegations, if supported by contemporaneous documents (e.g., forged transfer instruments, altered registry entries, internal correspondence) or credible witness testimony, would establish fraud. In this case the Counter - Claimants pleaded loss of records and unexplained alterations but did not produce direct documentary proof of official collusion at trial; the plaintiffs produced registry searches and the original title documents but the record before the Court shows gaps that require resolution by further evidence. 3. On the balance of probabilities. The Court finds that the Plaintiffs have established a prima facie case of irregularity in the subsequent subdivisions and registrations. The Plaintiffs proved holding the original Certificate of title and produced evidence of later revocation and sub - division entries that post‑date the High Court decision. The timing and circumstances (boundary beacons, police OB, absence of clear lawful explanation in the registry) raise a strong inference of irregularity. 4. However, the allegation of deliberate fraud (collusion by specific officials) requires clearer proof. The pleadings and the Plaintiff’s single witness establish suspicious circumstances but fall short of incontrovertible proof of active collusion by named officials. The Counter - Claim’s particulars of misrepresentation and collusion are serious but were not supported by direct documentary proof or oral testimony from independent witnesses at trial. 5. Where the Registrar or Surveyor failed to give evidence or explain registry entries, the Court draws an adverse inference from their silence on material points, particularly where the plaintiffs produced registry searches and the defendants did not call officials to justify the entries. The absence of explanation strengthens the Plaintiffs’ case on illegality of the registrations. 6. Registrations and sub - divisions effected in breach of a subsisting High Court order or by means of misrepresentation are unlawful and liable to be set aside. Where the Court is satisfied that the administrative acts were irregular and that the Plaintiffs’ title was thereby extinguished or impaired, the appropriate remedy is rectification of the register and nullification of the fraudulent subdivisions, subject to specific findings on each challenged instrument. 7. The Court concludes that the sub - divisions and registrations in favour of the Defendants were irregular and, to the extent shown by the evidence, unlawful. The Plaintiffs have proved on a balance of probabilities that their original title was revoked and the land sub - divided under circumstances that give rise to a strong inference of impropriety. On the specific allegation of deliberate collusion and criminal fraud by named officials, the Plaintiffs have not discharged the higher evidential threshold required to make a definitive finding of criminal fraud. That aspect remains a matter for further investigation by the police or a separate criminal or disciplinary forum if the Plaintiffs wish to pursue it. 8. Subsequent to this conclusion, this Honourable Court will in my final orders provide for rectification of the register and nullification of the impugned subdivisions and titles where the Plaintiffs’ evidence establishes the chain of irregularity, and will direct the Registrar and Surveyor to take necessary steps to reinstate the Plaintiffs’ entries, subject to any competing third‑party rights proved to be bona fide purchasers and for value on notice. ***ISSUE No. d). Whether the Counter - Claim establishes superior ownership rights.*** 1. Under this sub – title the Court shall examine whether the Counter - Claim establishes superior ownership rights. This sub - title determines whether the counterclaim by Swaleh Abdalla Mwatapha and Almasi Abdalla Tapha (the Counter - Claimants) proves, on the balance of probabilities, superior legal title to parcel Kwale/Diani SS/201 against the Plaintiffs (Gulnar and Farhat Sultan Khan) and other Defendants. 2. In Kenya, legal ownership of registered land ordinarily follows the register; a registered proprietor holds indefeasible title subject to limited exceptions (fraud, rectification, overriding interests). Where a claimant relies on historical occupation and allotment, they must produce primary evidence (original allotment letters, receipts, contemporaneous entries, or credible witness testimony) to displace a registered title. The Counter - Claimant bears the burden to prove superior title on the balance of probabilities; allegations of fraud or loss of records require clear, cogent evidence. 3. Even if ancestral occupation is proved, competing registered interests acquired in good faith for value may limit available remedies. To impeach a registered title the counterclaimant must show the registration was procured by fraud, misrepresentation, or other vitiating factor, and must identify the defective instrument(s). 4. The Counter - Claim pleads an allotment and payment of a sum of Kenya Shillings Five Thousand Six Hundred and Fifty (Ksh 5,650/=) but the record, as pleaded and produced at trial, does not show the original allotment letter or the payment receipt in evidence. The Counter - Claim itself admits the land records were later “not traced” and alleges they were altered. Allegations of lost records do not substitute for primary documentary proof. The Counter - Claim relies on historical occupation dating to year 1945. To convert occupation into legal title against a registered proprietor requires corroboration (independent witnesses, contemporaneous correspondence, settlement registry entries, or official acknowledgements). The pleadings do not show that such corroborative evidence was produced at trial. 5. The Plaintiffs produced registry searches and relied on a High Court Judgment (JR 27 of 2009) that quashed an earlier award purporting to revoke their title. The Counter - Claim must therefore overcome both the register and the effect of that Judgment by proving that the subsequent registrations in favour of others were procured by fraud or that the Counterclaimants’ allotment was never lawfully extinguished. The Counter - Claim’s pleaded loss of records and assertions of later alteration are serious but, without direct documentary or credible independent testimony, remain unproven. 6. The Counter - Claim alleges misuse of office by a District Commissioner and collusion with registry officers. Such allegations, to impeach a registered title, require clear evidence (forged instruments, internal memos, witness testimony from officials, or forensic registry audits). The record does not show that the Counterclaimants produced such evidence at trial. The Counterclaimants assert historical occupation and recent boundary identification showing encroachment by others. Possession can support a claim but does not supplant a registered title absent proof of a legal basis (e.g., valid allotment not lawfully extinguished). The pleadings show disputed possession but not conclusive proof of superior legal title. 7. This Court finds that there is insufficient documentary proof of allotment and payment: The Counterclaimants pleaded payment and allotment but did not produce the original Letters of Allotment or receipt as primary evidence sufficient to displace the register. Further there is failure to prove fraud or unlawful transfer by clear and convincing evidence; allegations of record alteration and collusion are unproven on the evidence before the Court; the Counterclaimants did not adduce the direct documentary or credible testimonial proof required to impeach a registered title. Historical occupation is asserted but not corroborated to the degree necessary to establish superior legal title against registered interests. 8. The Plaintiffs’ reliance on registry entries and JR 27 of 2009, together with the Counterclaimants’ evidential gaps, mean the Counterclaimants have not shown a superior right as a matter of law. 9. In conclusion, on the balance of probabilities, the Counter - Claim does not establish superior ownership rights to Kwale/Diani SS/201 against the plaintiffs’ claimed title. The Counter - Claim raises serious factual allegations (historic occupation, alleged allotment, loss/alteration of records, and alleged official collusion) that warrant investigation, but the evidence adduced in these proceedings is insufficient to displace the registered title or to impeach the Defendants’ registrations to the suit land. ***ISSUE No. e). What are the appropriate reliefs.*** 1. Under this Sub - heading, the Plaintiffs have sought for various Reliefs as contained at the foot of the Plaint, herein. The standard of proof in civil cases is well settled. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya.Further, the provision of Section 108 places the burden of proof on the party who would fail if no evidence were adduced, while Section 109 requires that proof be provided of facts especially within a party’s knowledge. The guiding principle is that the Plaintiffs must establish their case on a balance of probabilities, meaning that the Court must be satisfied that it is more probable than not that his version of events is true. Based on the pleadings, the evidence adduced and the findings already reached (irregular subdivisions and registrations; failure of the counterclaim to prove superior title), the reliefs below are appropriate, proportionate and tailored to restore the plaintiffs’ rights, protect bona fide third‑party interests, and deter further registry irregularities. 2. I considered the pleadings, the witness testimony (including the Plaintiff and DW1/DW2 for the registry), the documents admitted in evidence, the statutory scheme and the authorities relied upon by counsels.The Legal framework applied herein is the Land Registration Act, 2012: section 24 (effect of registration), section 25 (indefeasibility subject to Act), section 26(1) (prima facie effect of title; exceptions for fraud, misrepresentation, illegality), and section 80(1) (power to rectify the register where registration was obtained by fraud or mistake). 3. I also make reliance on Article 40(1) and (6) of the Constitution which gives right to property; protection does not extend to unlawfully acquired property). 4. On the declaration of ownership, this Court observes that registration vested legal ownership (Section 24 of the Land Registration Act) and created an indefeasible title subject to the Act (Sections 25 and 26 of the Land Registration Act). But equitable interests (including resulting trusts) could subsist notwithstanding registration where evidence justified them. The law provides under the provision of Section 26 of the Land Registration Act thus:- **“The certificate of title issued by the registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner”** 1. To that extent and scope of the Defendants rights it is imperative to take cognizance of the provisions of Sections 24 (b), 25 and 26 of the Land Registration Act, 2012. For convenience, the provisions of Section 24(a) are reproduced as hereunder; **24. Interest conferred by registration Subject to this Act—** **(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and** 1. Section 25 provides for the rights of such a proprietor and states that; **“The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-** 1. The provision of Section 152A of the Land Act No. 6 of 2012 prohibits unlawful occupation of land and states that **“A person shall not unlawfully occupy private, community or public land.”** 2. I have previously stated in ***“Mwenye & 5 others – Versus - Tsama & 3 others [2025] KEELC 152 (KLR)”*** where the Court opined that: - ***“65. The above rights, interests and privileges accorded to a registered proprietor of land apply to the 1st and 2nd Defendants in this case having established that they are the proprietors of the suit properties. For the reasons tendered herein above, the Counter claim by the 1st and 2nd Defendants succeeds.”*** 1. The Plaintiffs are entitled to a declaration that they are the lawful proprietors of the parcel Kwale/Diani SS/201. 2. On the declaration that the registration in favour of the 1st and 2nd Defendant and the late Ramadhan Swaleh Mwatapha, the Court has found that the registrations were unlawful and impeachable under the provision of Section 26(1)(b) LRA. Pursuant to Section 80(1) LRA, the Court has jurisdiction to order rectification of the register by directing cancellation of such entries. 3. The Plaintiffs pleaded particulars of fraud as against the Defendants. While fraud allegations required clear and distinct pleading and strong proof, the evidence here (admissions by registry witnesses and absence of lawful documents) met the necessary standard to establish that the contested entries had been procured by irregular and likely fraudulent procedure. 4. Given the risk of irreparable prejudice by dealing with the land and the necessity to restore the register to its lawful state, the Plaintiff was entitled to rectification and a permanent injunction restraining alienation or dealing until rectification had been effected. 5. The Plaintiff has prayed for a permanent injunction to restrain the Defendants from interfering with his proprietary rights over the suit property. The law on injunctions is well settled. Under Section 24 and 25 of the Land Registration Act, 2012, the rights of a registered proprietor are absolute and indefeasible, subject only to encumbrances noted in the register and the exceptions under the provision of Section 26 (1). Once the Court has found that the Plaintiffs are the lawful proprietor, they are entitled to the full protection of the law, including cancellation of the titles and injunctive relief. 6. The principles governing the grant of injunctions were set out in ***“Giella – Versus - Cassman Brown & Co. Ltd [1973] EA 358”***, namely: - 7. **The applicant must establish a prima facie case with a probability of success;** 8. **The applicant must demonstrate that he will suffer irreparable harm not compensable by damages;** 9. **If in doubt, the Court will decide the matter on a balance of convenience.** 10. Although Giella dealt with interlocutory injunctions, the principles are instructive even at the final stage. Where a party has proved ownership and unlawful interference, a permanent injunction is the natural remedy to protect proprietary rights. 11. It was held in the case of ***“Mburu – Versus - Kibara & 2 others (Environment & Land Case 237 of 2021) [2022] KEELC 3226 (KLR) (28 July 2022) (Ruling)”*** that: - ***“… permanent injunction fully determines the right of the Parties before the Court and is normally meant to perpetually restrain the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected. This Court has the powers to grant the Permanent Injunction under sections 1A, 3 & 3 A of the Civil Procedure Code if it feels the right of a Party has been fringed, violated and/or threatened as the Court cannot just seat, wait and watch under these given circumstances …”*** 1. In this case, the Plaintiffs have proved that they are the lawful proprietors of the suit property; the Defendants have interfered with their quiet possession by purporting to acquire and occupy the land and monetary compensation would not adequately protect his constitutional right to property under Article 40 of the Constitution. Accordingly, the Court finds that the Plaintiff are entitled to a permanent injunction. An order of permanent injunction is hereby issued restraining the 2nd, 3rd, 4th, 5th and 6th Defendants, their family members, heirs, proxies, servants and employees from claiming, trespassing, encroaching, invading, selling, building, entering, renting, hiring, alienating, transferring, cultivating, using and or interfering in any way with the Plaintiffs beneficial land Kwale/Diani SS/201. 2. General damages in land disputes are awarded to compensate a party for non‑pecuniary loss — distress, inconvenience, loss of use, and violation of proprietary rights. Unlike special damages, they do not require exact proof of monetary loss but must be justified by the circumstances of the case. Courts in Kenya have consistently held that where fraud, trespass, or unlawful deprivation of land is proved, general damages are appropriate to vindicate ownership and deter wrongful conduct. 3. There are factors to consider in this case like: - * + - 1. Nature and gravity of the interference — deliberate fraud or administrative negligence increases the award. 2. Duration of dispossession or interference — longer periods justify higher awards. 3. Loss of use and economic opportunity — inability to farm, rent, or develop the land. 4. Emotional distress and reputational harm — anxiety, humiliation, and disruption to family succession. 5. Conduct of public officers — involvement or negligence by registry or survey officials aggravates liability. 6. Presence of aggravating or mitigating conduct — concealment, delay, or failure to remedy by defendants increases damages; prompt remediation reduces them. 4. In the instant case, the Plaintiffs’ registered title was revoked and sub - divided despite a subsisting High Court Judgment. The unlawful acts persisted over several years, including sub - divisions and encroachment. The Plaintiffs were deprived of peaceful enjoyment of their land and succession proceedings were disrupted. Further the registry officials failed to provide explanations or reports and Defendants acted in defiance of Court orders. The Plaintiffs faced humiliation and anxiety, including confrontations at the property and police involvement. 5. To support this point I cite the case of:- ***“Walia - Versus - County Government of Nakuru (ELC 37 of 2020)”***, where the court awarded general damages for unlawful interference with land rights, emphasizing the need to compensate for distress and inconvenience. 6. Given the seriousness of the fraud, the prolonged deprivation, and the aggravating conduct, the Plaintiffs are entitled to a substantial award of general damages. A figure of a sum of Kenya Shillings Five Million (Kshs. 5,000,000/=) is proportionate and consistent with precedent, compensating for: * Loss of use of the property, * Emotional distress and inconvenience, * Administrative negligence and fraud by officials, * The need to vindicate proprietary rights ***Issue No. e). Who bears the costs of the suit and the Counter - Claim*** 1. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. In***“Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR”***quoted the case of ***“Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227”***the Court held:- ***“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”*** 1. In the present case, the Plaintiffs (Gulnar & Farhat Sultan Khan) succeeded on the principal issues: the court found the subsequent subdivisions and registrations to be irregular/unlawful and granted declaratory and rectificatory relief in their favour. The counterclaim by Swaleh Abdalla Mwatapha and Almasi Abdalla Tapha failed to establish superior title. 2. The Plaintiffs are awarded the Costs of the main suit to be paid by the Defendants jointly and severally. Further the Plaintiffs are awarded the costs of the Counterclaim to be paid by the 1st and 2nd Defendants (in the main suit – who are the Plaintiffs in the Counterclaim) respectively. 3. **Conclusion and Disposition** 4. Ultimately, having caused such an in‑depth analysis to the framed issues herein, the Honourable Court on the Preponderance of Probabilities and the balance of convenience finds that the Plaintiffs have established their case against the 1st, 2nd, 3rd, 4th, 5th 6th & 7th Defendants. For avoidance of doubt, accordingly, the Court makes the following specific orders: 5. **THAT Judgment be and is hereby entered in favour of the Plaintiffs according to the AmePlaint dated and filed on 7th March, 2023 in its entirety with costs.** 6. **THAT the Counter – Claim dated……….filed by the Counter – Claimants be and is hereby dismissed for lack of merit whatsoever.** 7. **THAT a declaration do and is hereby made that that the registration, revocation, transfer or re‑registration of the suit parcel Land Reference Numbers Kwale/Diani SS/201 in favour of the 1st and 2nd Defendants and/or the late Ramadhan Swaleh Mwatapha, and any titles derived therefrom, was fraudulent, irregular and illegal to the extent established by the evidence.** 8. **THAT an Order of Nullification of the sub - divisions of all** **that parcel Land Reference Number Kwale/ Diani SS/201 into Kwale/Diani SS/3094 and Kwale/ Diani/3095 and Kwale/Diani SS/5406, 5407, 5408 & 5409 and the resultant titles thereof and reinstatement of the records of that parcel Land Reference Number Kwale/Diani/201.** 9. **THAT an Order of permanent injunction be and is hereby issued against the 1st and 2nd Defendants whether by themselves, their assignees, agents, servants or any person claiming through them from occupying, entering upon or otherwise howsoever manner interfering with the suit property by selling, disposing off, sub - dividing and charging the suit.** 10. **THAT an Order of permanent injunction be and is hereby issued against the 3rd, 4th and 5th Defendants restraining them whether by themselves, their assignees, agents, servants or any person claiming through them from occupying, entering upon or otherwise howsoever manner interfering with suit property by selling, disposing off, subdividing and charging it.** 11. **THAT an order be and is hereby issued compelling the 6th and 7th Defendants to reinstate the Registration of the Plaintiffs as the rightful owners of that parcel Land Reference Number Plot Number Kwale/Diani SS/201 and expunge the records of the fraudulent sub - divisions referred to as Kwale/Diani SS/3094 and Kwale/Diani/3095 and Kwale/Diani SS/5406, 5407, 5408 & 5409.** 12. **THAT the Defendants shall jointly and severally pay the plaintiffs general damages in the sum of Kenya Shillings Five Million (Kshs. 5,000,000/-). The award is made to compensate the plaintiffs for distress, inconvenience, loss of use, and violation of proprietary rights occasioned by the fraudulent revocation, sub - division, and registration of Kwale/Diani SS/201. The sum shall be paid within Ninety (90) days of this Judgment, failing which the Plaintiffs are at liberty to apply for enforcement and interest at court rates.** 13. **THAT Plaintiffs are awarded the Costs of the main suit to be paid by the Defendants jointly and severally. Further the Plaintiffs are awarded the costs of the Counter - Claim to be paid by the 1st and 2nd Defendants (in the main suit – who are the Plaintiffs in the Counter - Claim) respectively. Interest on damages and costs from the date of judgment until payment in full.** **IT IS SO ORDERED ACCORDINGLY** **JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS …… 1ST ….. …………….DAY OF ………..JULY………….2026.** **……………………….……..……………………..** **HON. MR. JUSTICE L.L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Judgement delivered in the presence of: -** 1. Mr. Daniel Disii – the Court Assistant. 2. Dr. Chitembwe Advocate for the Plaintiffs. 3. Mr. Kiptoo Advocate holding brief for Mr. Koech Advocate for the 1st and 2nd Defendants. 4. No appearance for the 3rd, 4th, 5th, 6th and 7th Defendants.