https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4594

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT** **AT KWALE** **ELCC SUIT NO. E023 OF 2023** **JUNE WANGARI GICHANGA *(suing as the Legal Representative of the Estate of ABIJAH WAKARINDI NJOMO)*……………..…….……PLAINTIFF** * **VERSUS -** **BAKARI SUDI NAMUNA** **AHMED RAMADHANI ADBALLA** **LANDS REGISTRY KWALE COUNTY...…………………..DEFENDANTS** **JUDGMENT** 1. **Preliminaries** 2. This Judgement by the Honourable Court sounds like an action packed movie acted at Hollywood!!. It is a culmination of a case involving such immoral intricacies perpetrated by daring and shameless fraudsters. The culprits have gone to an extend of colluding with some public servants to declare the legally registered proprietor dead. The 1st Defendant coined a fraudulent and corrupt scheme whereby he acted as the beneficiaries of the mother to the Plaintiff. In so doing, he feigned her death while she was still alive and kicking. Ostensibly, the said 1st Defendant along with others, manufactured and procured succession forged documentations to support their illegal claim leading to unlawful acquisition title deeds belonging to the owner – the Plaintiff’s biological mother herein. 3. Be that as it may, this decision pertains a civil suit instituted by *June Wangari Gichanga*, suing as the Legal Representative of the Estate of *Abijah Wakarindi Njomo* (Hereinafter referred to as “The Deceased”*)*, the Plaintiff herein. It was by way of a Plaint dated 31st October, 2023 and subsequently amended on 28th February, 2025. 4. The Plaintiff instituted the suit against *Bakari Sudi Namuna, Ahmed Ramadhani Abdalla,* and *the Land Registrar – Kwale County*, the Defendants herein. The suit was premised under the provisions of Sections 24, 25, 26 and 80 of the Land Registration Act, No. 3 of 2012; Sections 13 and 150 of the Land Act, 2012; Section 76 of the Law of Succession Act, Cap 160; Section 173(1) of the Evidence Act, Cap. 80 Laws of Kenya; and all other enabling provisions of the law**.** 5. The Plaintiff sought for recovery of land parcel known as Land Reference Numbers Kwale/S.N/Kundutsi “A”/854 (Hereinafter reffrred to as “The Suit Land”), alleged to have been fraudulently and irregularly alienated from the estate of her late mother. 6. Upon service, the Defendants opposed the claim in a nutshell as follows:- 7. The 3rd Defendant filed a Statement of Defence dated 13th March, 2026, denying all allegations of fraud and asserting that the Plaintiff’s pleadings were vague and lacking in material particulars, while admitting only the descriptive paragraphs of the Plaint. 8. The 1st and 2nd Defendants failed to enter appearance or file any defence, despite of leave granted by Court and indeed effected service by way of substituted means under the provision of Order 5 Rule 17 of the Civil Procedure Rules, 2010. 9. Therefore, the Plaintiff proceeded to prosecute the matter, supported by documentary evidence including succession records, land registry entries, and investigative reports from the Directorate of Criminal Investigations. 10. **The Description of the Parties** 11. The Plaintiff, June Wangari Gichanga, is an adult female of sound mind, suing in her capacity as the duly appointed legal representative of the estate of Abijah Wakarindi Njomo pursuant to a Grant of Letters of Administration Ad Litem. She brought this suit to safeguard the estate’s proprietary rights over Land Parcel Kwale/S.N/Kundutsi “A”/854, alleged to have been fraudulently alienated. The Plaintiff acts under the authority of the Law of Succession Act Cap. 160 and the Land Registration Act, No. 3 of 2012, which vest her with “***Locus Standi”*** to institute proceedings for recovery and protection of estate property. 12. The 1st Defendant, Bakari Sudi Namuna, is an adult male of sound mind residing in the Republic of Kenya. He was sued as the person who fraudulently procured transmission of the suit property to himself through Succession Cause No. 153 of 2019 filed in the Kadhi’s Court at Kwale, wherein he misrepresented himself as the son and sole heir of the Plaintiff’s mother, Abijah Wakarindi Njomo, despite her being alive at the material time. 13. The 2nd Defendant, Ahmed Ramadhani Abdalla, was an adult male of sound mind residing in the Republic of Kenya. He was sued as the subsequent transferee of the suit property, having acquired title from the 1st Defendant on 10th June, 2019. His registration as proprietor was allegedly impugned on the basis that the root of his title was tainted with fraud and illegality, contrary to the provision of Article 40 (6) of the Constitution of Kenya (2010) and Section 26(1)(b) of the Land Registration Act, 2012, No. 3 of 2012. 14. The 3rd Defendant, the Chief Land Registrar – Kwale County, is a public officer appointed under the provision of Section 12 (1) of the Land Registration Act, 2012, mandated under the provision of Section 14 thereof to maintain land registers and discharge statutory duties relating to registration of interests in land. The 3rd Defendant was sued in her official capacity as custodian of the land register in respect of the suit property, having effected the impugned entries that facilitated transmission and transfer of the suit property to the 1st and 2nd Defendants. 15. **Court Directions before Hearing** 16. Upon perusal of the Plaint dated 31st October, 2023, the Amended Plaint dated 28th February, 2025, together with the interlocutory applications filed by the Plaintiff, this Honourable Court directed that the Plaintiff be granted leave of fourteen (14) days to file and serve a supplementary list of documents, including certified copies of the original title deed, the Certificate of Confirmation of Grant dated 13th June, 1986, succession records from Probate and Administration Cause No. 241 of 1983, and any additional witness statements in support of her claim. 17. The Defendants were correspondingly granted fourteen (14) days to file and serve any further documents, witness statements, or supplementary affidavits arising from the Plaintiff’s amended pleadings and lists of documents. In particular, the 1st Defendant was directed to file any documentary evidence substantiating his alleged entitlement under Succession Cause No. 153 of 2019, while the 2nd Defendant was directed to file any sale agreements or consideration documents relied upon in the transfer of the suit property. The 3rd Defendant was directed to file the complete green card and all registry correspondence relating to the impugned entries. 18. The Court further ordered that the matter be mentioned on 15th May, 2025 for purposes of confirming compliance with the filing directions, and thereafter fixed for pre‑trial on 29th September, 2025. The Plaintiff was directed to pay Court adjournment fees of Kenya Shillings Three Thousand (Kshs. 3,000/-) before the next mention date. 19. Upon compliance with pre‑trial directions under Order 11 of the Civil Procedure Rules, 2010, the matter was scheduled for full hearing. The Plaintiff’s case was set down for hearing on 4th March 2026, with liberty to call her witnesses and produce documentary evidence, while the Defendants were accorded corresponding dates to present their defence and produce documents in opposition. 20. **The Plaintiff’s Case** 21. From the pleadings before Court, at all material times pursuant to this suit, the Plaintiff’s mother, Abijah Wakarindi Njomo, was the registered legal and beneficial owner of the property known as Kwale/S.N/Kundutsi “A”/854, situated in Kwale and measuring approximately 2.80 hectares or thereabouts (hereinafter referred to as the suit property). She had acquired and held the property as trustee from the estate of her late husband, Mr. Harrison Gichanga Njomo. 22. The Plaintiff’s mother, Abijah Wakarindi Njomo, and the Plaintiff’s father, Harrison Gichanga Njomo, were married in Murang’a on 9th February, 1974 and later on the 18th April, 1978, Harrison Gichanga Njomo was registered as the proprietor of the suit property. Mr. Harrison Gichanga Njomo purchased the land from one Ali Omar Mwakiama on 18th April, 1978 for a consideration of a sum of Kenya Shillings Four Thousand Five Hundred (Kshs. 4,500/-), and a title deed was issued as Shimba North/Kundutsi. 23. As fate would have it, on 1st November, 1982 the Plaintiff’s father passed away. Thereafter, the Plaintiff’s mother petitioned for Grant Letters of Administration for the Estate of her late husband via Probate and Administration Cause No. 241 of 1983. Subsequently, the Plaintiff’s mother, Abijah Wakarindi Njomo, obtained a Certificate of Confirmation of Grant dated 13th June, 1986, wherein she was required to hold all the properties of her deceased husband for Life interest in trust for her four children. 24. The Plaintiff’s mother thereafter began the process of transferring the said properties in the estate to hold in trust. On 15th July, 2009, a title deed was issued to her for all that parcel of land known as Kwale/S.N/Kundutsi “A”/854. On 9th August, 2023, one of the Plaintiff’s sisters, Sarah Gichanga, acting on instructions from their mother, undertook to conduct an official search on the suit property at the Ministry of Lands. The results revealed that the property had been transferred to a person unknown to the Plaintiff’s mother, namely Ahmed Ramadhan Abdalla, the 2nd Defendant herein. 25. Alarmed by the discovery, Ms. Sarah Gichanga applied for a restriction to be placed on the property to prevent further transactions. On 10th August, 2023, the restriction was issued. The Plaintiff’s mother, Abijah Wakarindi Njomo, then lodged a report with the Land Fraud Investigation Unit, registered as DCI/IB/LFIU/SCE/2/16/VOL.XXIV/363, in which investigations were undertaken. Upon perusal of the records held at the 3rd Defendant’s offices, it was revealed that the 2nd Defendant had acquired title to the land on 10th June, 2019 from one Bakari Sudi Namuna, the 1st Defendant. 26. The records further reflected that Bakari Sudi Namuna had been registered as proprietor of the land on 28th May, 2019 by xthe reason and strength of a Grant issued in Succession Cause No. 153 of 2019. The purported transfer of the suit property from Abijah Wakarindi Njomo to the 1st Defendant was allegedly a result of Succession Cause No. 153 of 2019, wherein the 1st Defendant fraudulently and in concealment of material facts feigned the death of Abijah Wakarindi Njomo to commence succession proceedings. The 1st Defendant lodged Succession Cause No. 153 of 2019, wherein the Petition for Grant Letters of Administration dated 8th May, 2019 and an extract of proceedings evidenced that he alleged he was the son of Abijah Wakarindi Njomo and the only surviving heir to her estate. 27. The 1st Defendant fraudulently procured a letter from the Ministry of Interior and Co‑ordination of National Government dated 10th May, 2019, allegedly confirming the death of Abijah Wakarindi Njomo, which he used to institute the said proceedings. The above‑referenced letter was corroborated by a letter from the Chief of Kwale Kundutsi, which falsely stated that Abijah Wakarindi Njomo had passed on and was buried at the suit property, and further that the 1st Respondent was her son. 28. A letter from the Civil Registrar, Kwale County purported to provide that the death occurred in Bumbani Village within Kundutsi Sub‑Location, Tsimba Location, but noted that the death was not registered due to lack of knowledge, hence no records existed to confirm the occurrence. With the intention of furthering these fraudulent acts, the 1st Defendant applied for issuance of a Certificate of Death in respect of Abijah Wakarindi Njomo. Through a letter dated 13th May, 2019, the Ministry of Interior and Co‑ordination of National Government indicated that they could not issue the certificate since the 1st Defendant had not met the minimum requirements for late death registration. 29. The letter further stated that the 1st Defendant had not furnished the Civil Registration Office with any proof to confirm the occurrence of death. The letter went on to request assistance to the 1st Defendant on the basis of a sworn affidavit from the then serving Registration Assistant. The 1st Defendant thereafter obtained a letter dated 25th May, 2019 from the Ministry of Interior and Co‑ordination of National Government, effectively declaring him the sole heir to the “deceased” Abijah Wakarindi Njomo’s estate. These documents were annexed to the Petition for Letters of Administration, having obscured the signatories and titles of the persons from whom the letters emanated, in an elaborate corrupt and illegal scheme to mislead the Court. 30. The Kadhi’s Court at Kwale, under Honourable Wendo Sheban Wendo, then Resident Kadhi, issued an order dated 15th May, 2019, just two days after the last documents were procured, to the effect that the whole estate being Kwale/S.N/Kundutsi “A”/854 devolved to the 1st Defendant, and further ordered the District Land Registrar Kwale to effect transmission of the estate to him. The 1st Defendant submitted the order to the Ministry of Lands for transfer of the property to himself. The parcel was registered under his name on 8th May, 2019, and a Certificate of Title Deed was issued in his named on 28th May, 2019. 31. In quick succession, the 1st Defendant sold the suit property to the 2nd Defendant, who was issued with title on 10th June, 2019, as evidenced by records captured at the 3rd Defendant’s offices. The 1st Defendant, in apparent collaboration with government officials, set in motion a deceitful ploy intended to fraudulently transfer the suit property. The Defendants acquired fraudulent title by misleading the Kadhi’s Court at Kwale to grant rights over land in which they had no proprietary interest. 32. From the foregoing narration, the 1st Defendant did not acquire good title to the suit property and could not legally transfer good title to the 2nd Defendant. The titles acquired by the 1st and 2nd Defendants were therefore illegal and improperly issued, and ought to have been cancelled forthwith, with the title reverting to the estate of Abijah Wakarindi Njomo. The Defendants should not have been allowed to ceaselessly perpetrate illegalities to the detriment of the Plaintiff and, in reality, to her siblings, for whom she was supposed to hold title to the property as trustee. All state bodies, natural and legal persons were to be guided by the need and duty to ensure the protection of land rights, and it was incumbent upon this Honourable Court to adhere to the law in this regard. 33. It was therefore in the interest of justice that the orders sought were granted. There was no other pending suit nor any previous proceedings between the parties herein relating to this cause of action. This Court was vested with jurisdiction to hear and determine the suit. 34. The Plaintiff prayed for Judgement to be entered against the Defendants jointly and severally for the following orders:- 35. ***That a declaration that the transfer of Land Reference Number Kwale/S.N/Kundutsi ‘A’/854 from the name of Abijah Wakarindi Njomo to the 1st Defendant’s name was fraudulent, illegal and void.*** 36. ***That a declaration that the transfer of Land Reference Number Kwale/S.N/Kundutsi ‘A’/854 from the name of Bakari Sudi Namuna to the 2nd Defendant's name was fraudulent, illegal and void.*** 37. ***That the title deed to Land Parcel Number Kwale/S.N/Kundutsi ‘A’/854 as currently held revoked and the title to the said property does revert-to the estate of Abijah Wakarindi Njomo and that the Land Registrar does rectify the same the land register accordingly.*** 38. ***That a vesting order do issue effectively for the parcel of land known as Kwale/S.N/Kundutsi ‘A’/854 be registered in the name of the estate of Abijah Wakarindi Njomo of Plaintiff.*** 39. ***That the 2nd Respondent herein do grant immediate and vacant possession of the suit property.*** 40. ***Costs of this suit.*** 41. ***Any other relief that this Honourable Court may deem just to grant.*** 42. During the hearing of the Plaintiff’s case on 10th February, 2026 Counsel for the Plaintiff had the following opening remarks:- * + - 1. **The Opening Remarks by Mr. Hassan Advocate:-** 43. The Learned Counsel for the Plaintiff moved the Honourable Court by submitting that the suit property had been fraudulently transferred from the estate of the deceased to the Defendants. He urged the Court to order restitution of the title to the estate of the deceased and its rightful beneficiaries. The Counsel stated that reliance would be made on various documents to support the Plaintiff’s case, which were tendered through formal proof. Counsel noted that the Defendants had been served by way of substituted service through advertisement in two (2) daily newspapers, and the same was supported by an Affidavit of Service dated 9th May, 2025. 44. The Plaintiff testified on 10th February, 2026 as follows:- 45. **Examination in Chief of PW -1 by Mr. Hassan Advocate.** 46. PW – 1 testified and sworn in English language. She was called JUNE WANGARI GICHANGA, a citizen of Kenya and holder of the national identity card bearing all the details as indicated and shown to Court during the hearing. She was a Psychologist by profession. PW - 1 appeared in Court as duly appointed legal Representative of the estate of Abijah Wakarindi Njomo. PW - 1 confirmed that she had filed a witness statement dated 28th February, 2025 together with a list of documents dated the same day comprising twenty (20) documents. These were produced and marked as Plaintiff’s Exhibits Nos. 1 to 20 in that order. 47. PW - 1 testified that the deceased was her mother, who had four children, namely: 48. June Wangari Gichanga. 49. Serah Muthoni Gichanga. 50. Evie Njomo Gichanga (deceased). 51. Mercy Wambui Gichanga. 52. PW - 1 stated that prior to her death, the deceased had been married to Harrison Gichanga Njomo. PW1 and her siblings obtained Grant of Letters of Administration Ad Litem dated 29th July, 2024, which allowed PW - 1 to substitute her mother in these proceedings. 53. PW - 1 testified that the subject matter was property LR Kwale/S.N/Kundutsi “A”/854, measuring 2.8 hectares. PW - 1’s father, Harrison Gichanga Njomo, purchased the land in the year 1978 from Ali Omar Mwakiama for a consideration of Kenya Shillings Four Hundred Thousand (Kshs. 400,000/=), and a title deed was issued as Shimba North/Kundutsi. Thereafter, PW - 1’s father passed away on 1st November, 1982, after which PW - 1’s mother applied for letters of administration via Succession Cause No. 241 of 1983. Subsequently, PW - 1’s mother obtained a Certificate of Confirmation of Grant dated 13th June, 1986, requiring her to hold all the property of her husband in trust for her four ( 4 ) children. 54. PW - 1 stated that her mother later began the process of transferring the property in the estate to hold in trust, and a Certificate of Title was issued to her for Kwale/S.N/Kundutsi “A”/854 on 15th July, 2009. 55. PW - 1 testified that she was not aware of the property being transferred to a third party. In August, 2023, PW - 1’s sister Sarah Gichanga, upon instructions from their mother, undertook a search at the Ministry of Lands. The search revealed that the property had been transferred to Ahmed Ramadhan Abdalla, the 2nd Defendant. PW - 1 was certain that her mother had not transferred the property, as transmission was through succession and not transfer at the Kadhi’s Court. PW - 1 stated that her sister therefore applied for a restriction to be registered against the property to prevent further transactions, and the restriction was issued on 10th August, 2023. Thereafter, PW - 1’s mother lodged a report with the Land Fraud Investigation Unit, Nairobi, registered as DCI/IB/LFIU/SCE/2/16‑24/363, in which investigations were undertaken. 56. PW - 1 testified that pursuant to the investigations, it was revealed that the 2nd Defendant acquired title on 12th June, 2019 from Bakari Sudi Namuna, the 1st Defendant, who had been registered on 28th May 2019 by a grant issued in Succession Cause No. 153 of 2019. 57. PW - 1 stated that the 1st Defendant had been registered through fraudulent means by feigning the death of her mother. He lodged Succession Cause No. 153 of 2019, wherein the Petition for Letters of Administration dated 8th May, 2019 and extracts of proceedings from the Kadhi’s Court indicated that he claimed to be Abijah’s son and sole heir. PW - 1 testified that the 1st Defendant fraudulently procured a letter from the Ministry of Interior and Co ‑ ordination of National Government dated 10th May, 2019, allegedly confirming her mother’s death, which he used to institute the proceedings. This letter was corroborated by another from the Chief of Kwale Kundutsi, falsely stating that her mother had passed on and was buried at the suit property, and that the 1st Defendant was her son. 58. PW - 1 stated that these were falsehoods, as her mother was alive, not buried there, and the 1st Defendant was not her biological son. The letter further alleged that the death occurred in Bombani Village within Kundutsi Sub‑Location, Tsimba Location, but the death was not registered due to lack of knowledge, hence no records existed to confirm it. 59. PW - 1 testified that, seemingly to perpetuate the fraud, the 1st Defendant applied for issuance of a Certificate of Death vide a letter dated 13th May, 2019. The relevant authority declined to issue it, as he had not met the minimum requirements. PW - 1 confirmed that her mother eventually passed away on 11th December, 2023. It was therefore clear that the 1st Defendant had conducted the succession process while she was still alive. PW - 1 testified that the 1st Defendant procured the fraudulent letter from the Chief in 2019 and used it at the Kadhi’s Court. Later, Hon. Jamal Opacha revoked the Grant issued to the 1st Defendant. 60. PW - 1 stated that the Kadhi’s Court at Kwale under Hon. Wendo Sheban Wendo had earlier issued an order, but her mother was not of Islamic faith. PW - 1 further testified that the Directorate of Criminal Investigations continued to pursue the 1st and 2nd Defendants for criminal liability. PW - 1 concluded by stating that the Plaintiff sought that the suit property revert to the estate of her mother, together with costs and cancellation of the title held by the 2nd Defendant. 61. On the same day the Plaintiff called her second witness PW - 2 who testified as follows:- 62. **Examination in Chief of PW - 2 by Mr. Hassan Advocate.** 63. PW - 2 was sworn and testified in English language. She was called SERA MUTHONI GICHANGA, a citizen of Kenya and holding the national identity card bearing all the particulars shown to Court during the hearing. She resided in Nairobi. PW - 2 confirmed that she had recorded a witness statement dated 28th February, 2025 together with supporting documents, which she wished to have adopted. PW - 2 stated that the subject matter was property Kwale/Kundutsi “A”/894. On 9th August. 2023, PW - 2 conducted an official search at the land registry and discovered that the property had been registered in the name of another person, Mr. Ahmed Ramadhan Abdalla, the 2nd Defendant. 64. PW - 2 stated that she subsequently applied for a restriction against the property, dated 10th August, 2023, to prevent further transactions. PW - 2 further testified that her mother passed away on 11th December, 2023. PW - 2 explained that the 1st Defendant had managed to procure a letter from the Ministry of Interior and National Co‑ordination and from the Chief of Kwale Kundutsi, falsely claiming that their mother had died. He then attempted to acquire a certificate of death, but the authorities declined to issue it. PW - 2 stated that eventually the 1st Defendant obtained a letter declaring him as the sole heir of their mother. PW - 2 emphasized that both her mother and father were Christians and not Muslims. PW - 2 further stated that her mother had lodged a complaint with the Directorate of Criminal Investigations, who continued to pursue the matter against the Defendants. 65. PW - 2 concluded by stating that the Plaintiff sought for the suit property to revert back to the estate of the deceased, for costs to be awarded, and for the fraudulent grant to be revoked. 66. The Plaintiff marked his case closed on 10th February, 2026 by its counsel on record Mr. Hassan Advocate. 67. **The 3rd Defendant’s Case** 68. The 3rd Defendant responded the Plaintiff’s claim in the following terms: - 69. Save for what was expressly admitted, the 3rd Defendant denied each and every allegation against them in the Plaint as though the same were set out verbatim and traversed seriatim. 70. The 3rd Defendant admitted the contents of Paragraphs 1, 2, 3 and 4 of the Plaint as being merely descriptive of the parties, save that its address for purposes of the suit was care of the Attorney General’s Chambers. 71. Without prejudice to the foregoing general denial, the 3rd Defendant averred that they were complete strangers to the matters pleaded in the Plaint, had no knowledge of the transactions or allegations therein, and accordingly denied the same. The Plaintiff was required to substantiate each claim with cogent, credible, and admissible evidence in accordance with the law and rules of procedure. 72. The 3rd Defendant further averred that the Plaint disclosed no particulars of the alleged claims sufficient to enable them to plead meaningfully thereto. The allegations were vague, general, and lacking in material facts, and the Plaintiff was therefore put to strict proof. 73. The 3rd Defendant averred that there was no other suit pending and that there had been no previous proceedings in any court between the Plaintiff and them over the same subject matter. 74. Subject to and without prejudice to the foregoing, the jurisdiction of this Honourable Court was admitted. 75. The 3rd Defendant prayed that the Plaintiff’s suit be dismissed with orders as to costs. 76. The 3rd Defendant did not call any witnesses. Therefore their case was ordered to its closure on 10th February, 2026 upon closure of the Plaintiff’s case. 77. **Submissions** 78. Upon the closure of the Plaintiff’s and the Defendants’ cases on 10th February, 2026, the Honourable Court directed that all parties file and exchange their respective Written Submissions within the stipulated timelines.. Thereafter, on 28th April, 2026 upon full compliance the Honorable Court reserved a date to deliver its Judgment on 20th June, 2026 accordingly. Eventually, it was delivered on 2nd July, 2026. 79. **The Written Submissions by the Plaintiff** 80. The Plaintiff through the Law firm of Messrs. HMS Africa Advocates LLP filed their written submissions dated 23rd April, 2026. Mr. Hassan Advocate commenced the submissions by providing the Court with a brief background of the suit. He stated that the present suit arose out of a Plaint dated 31st August, 2023 and subsequently amended by the Amended Plaint dated 28th February 2025 together with accompanying documents by the Plaintiff seeking the above cited prayers.The Learned Counsel submitted that the Plaintiff’s mother, Abijah Wakarindi Njomo (now deceased), was the registered legal and beneficial owner of the suit property measuring approximately 2.80 hectares. The suit property had been acquired by the late Abijah from the estate of her late husband, Mr. Harrison Gichanga Njomo, and she held it as trustee for her children. Abijah and Harrison married on 9th February, 1974 in Murang’a, after which Harrison acquired the suit property on 18th April 1978 through purchase from Ali Omar Mwakiama. A title deed was issued as Shimba North/Kundutsi “A”/854. 81. Following Harrison’s death on 1st November, 1982, Abijah filed for letters of administration via Probate and Administration Cause No. 241 of 1983 and obtained a Certificate of Confirmation of Grant dated 13th June, 1986, authorizing her to hold the estate in trust for her four children. After transmission, a title deed was issued to Abijah on 15th July, 2009 for the suit property. Acting on her mother’s instructions, Sarah Gichanga conducted a search at the Ministry of Lands and discovered that the property had been transferred to Ahmed Ramadhan Abdalla, the 2nd Defendant. 82. Consequently, Ms. Sarah Gichanga kick-started the process of remedying the situation by making an application for restriction to be placed on the suit property in order to prevent any further transactions. The said restriction was issued on the 10th August, 2023. Subsequently, Abijah Wakarindi Njomo lodged a report to the Land Fraud Investigation Unit of the Directorate of Criminal Investigations and the same was registered as DCI/IB/LFIU/SCE/2/16/VOL.XXIV/363. In addition to reporting the matter for investigation purposes, a further investigation into the illegality showed that ,in a stint of a systemic scam, the records from the 3rd Defendant disclosed that the 2nd Defendant acquired the title to the land on 10th June 2019 from the one Bakari Sudi Namuna of ID. No.0276973 (hereinafter referred to as “the 1st Defendant). 83. Subsequent records showed that the 1st Defendant had filed a Succession Petition on 14th May, 2019 in the Kadhi’s Court at Kwale by misrepresenting himself as the son of the deceased under Article 170(5) of the Constitution of Kenya (2010), Section 5 of the Kadhi’s Court Act, and Section 48(2) of the Law of Succession, praying for determination of heirs, distribution of the estate of Abijah Wakarindi Njomo according to Islamic law, and vesting orders of the estate to heirs. 84. Pursuant to the hearing of the Succession Petition, Hon. Wendo S. Wendo, the then Resident Kadhi, made orders dated 15th May, 2019 vesting the whole of parcel land Kwale/S.N/Kundutsi “A”/854 in the 1st Defendant, and further ordered the District Land Registrar, Kwale, to effect transmission of the same to the 1st Defendant. From the green card of the suit property, it was evident that the 1st Defendant’s name was recorded on 28th May, 2019 as entry no. 8 and thereafter quickly transferred to the 2nd Defendant as evinced by entry no. 11 on 10th June, 2019. This occurred within a span of twelve (12) days only. 85. It was against this backdrop that Mrs. Abijah Wakarindi Njomo filed an application for revocation of the Grant of Letters of Administration on the grounds that the grant was defective, obtained fraudulently by making false statements in Court, and obtained by means of an untrue allegation of a fact essential in point of law to justify the grant. She also filed the present suit dated 31st October, 2023 in the Environment and Land Court at Kwale seeking to revoke all the illegal and fraudulent transactions done in relation to the suit property. 86. Unfortunately, Mrs. Abijah passed away on 11th December, 2023 during the subsistence of the proceedings, and Ms. June Wangari Gichanga, pursuant to a Grant of Letters of Administration Ad Litem, was substituted as the Plaintiff. Pursuant to substitution, the Plaintiff filed an application at the Kadhi’s Court and pursued the orders on revocation of the Grants of Letters of Administration issued to the 1st Defendant. 87. Following the said application at the Kadhi’s Court, Hon. Jamal Opacha issued a ruling dated 28th February, 2025 ordering revocation of the grants of letters of administration issued to the 1st Defendant and further ordered that the issue of title be heard in the court of competent jurisdiction. 88. Notably, pursuant to the applications dated 28th February, 2025 and 25th April, 2025, this Honourable Court gave orders on maintenance of status quo for purposes of preservation of the suit property pending the hearing and determination of the main suit, as well as substitution of the Plaintiff via the application dated 5th September, 2024. Despite service of pleadings to the 1st, 2nd, and 3rd Defendants, and subsequent substituted service to the 1st and 2nd Defendants, the 1st and 2nd Defendants failed to enter appearance and/or file a response. The 3rd Defendant filed an appearance notice but no defence was filed thereto. Evidently, all Defendants were equally absent during the hearing of the main suit. The Honourable Court proceeded and heard the matter and made directions on submissions for the same. 89. The Learned Counsel relied on the following issues crystalized for determination by the Honourable Court:- 90. **Whether the title of the suit property was lawfully acquired by the 1st Defendant and whether the same should be revoked.** 91. **Whether the 1st Defendant transferred a proper title to the 2nd Defendant.** 92. **Whether the 2nd Defendant's title should be revoked.** 93. **Whether the Plaintiff is entitled to the prayers sought** 94. On submissions, the Learned Counsel submitted that the Plaintiff’s journey to seek justice had been one that had seen the Plaintiff exercise patience for the last three years. As the analogy went, patience was bitter but its fruits were sweet, the Plaintiff could now have a sigh of relief that this Honourable Court would strike the pen of justice and put the matter to rest. 95. On whether the title of the suit property was fraudulently acquired by the 1st Defendant and whether the same should be revoked. The Learned Counsel asserted that the transfer of title from Abijah Wakarindi Njomo to the 1st Defendant was fraudulent, illegal and void. The provision of Article 40 ( 1 ) & ( 2 ) of the Constitution entitles every person to the right to property but the same does not extend to any property that has been found to have been unlawfully acquired. According to the Learned Counsel, the Plaintiff was alive to the existing jurisprudence on matters where fraud is alleged. In the case of ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [2015] KECA 816 (KLR)”***, the Court noted that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. 96. The Learned Counsel further relied on the Court of Appeal decision in ***“Moses Parantai & Peris Wanjiku Mukuru (Suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) – Versus - Stephen Njoroge Macharia (2020)eKLR”*** where the Court observed that a party alleging fraud need to not only plead and particularize fraud, but also lay basis by way of credible evidence upon which the Court would make a finding that indeed fraud occurred. 97. Further the Learned Counsel stated that to prove fraud was a matter of evidence. The Learned Counsel went further to aver that the evidence adduced showed that the 1st Defendant acquired title of the suit property by fraudulently transferring the suit property to himself through an illegal succession process. The mere fact that the 1st Defendant had filed a succession cause against the suit property, misrepresented himself as the son of the deceased, and further treated the suit property as an estate despite the owner being alive was the first step towards the fraudulent dealings. The ruling by Hon. Wendo S. Wendo of the Kadhi’s Court, ordering the suit property to devolve to the 1st Defendant on 15th May, 2019 when the registered owner was still alive, ceased to have any legal grounding, as evidently and legally property could not become part of an estate when the legitimate owner was still alive. 98. This unbelievable fraud was effected by the fraudulent letter dated 10th May, 2019 procured from the Ministry of Interior and Co‑ordination of National Government, allegedly confirming the death of the Plaintiff’s mother. Thereafter, a letter by the Chief of Kwale Kundutsi stated the same, further alleging that the death had not been registered due to lack of knowledge and hence there were no records to confirm the occurrence. These letters were then used to propagate the illegal succession cause. Additionally, the 1st Defendant had equally filed the suit at the Kadhi’s Court, which was vested with jurisdiction to hear matters of Islamic faith. The Plaintiff submitted that Abijah Wakarindi Njomo had not and had never subscribed to or practiced Islam. 99. Notably, vide orders dated 28th February, 2025 revoking the grant orders dated 15th May, 2019, the Court was in agreement that the succession cause was part of the fraudulent scheme propagated by the 1st Defendant. All these events occurred as contained in the records held by the 3rd Defendant when the registered proprietor, Abijah Wakarindi Njomo, was still alive. This clearly indicated that the 1st Defendant had undertaken a well‑organized scheme aimed at settling his fraudulent endeavors. 100. From the above mentioned actions, the illegalities and fraud were evident from the following events; 101. Filling of a succession case of Mrs. Abijah Wakarindi Njomo who was alive at the time of the filling of the suit 102. Misrepresentation of the 1st Defendant as the son of Abijah Wakarindi Njomo 103. Illegally obtaining documents from the Ministry of Interior and Co-ordination of National Government dated 10th May, 2019 that were used to aid the 1st defendants fraud scheme allegedly confirming the death and burial of Abijah Wakarindi Njomo. 104. Succession at the Kadhi’s court on account of Abijah Wakarindi Njomo professing the Islamic faith 105. The Learned Counsel further relied on the case of:- ***“Santuzzabilioti alias Mei Santuzza (deceased) – Versus - Giancarlo Felasconi (2014) eKLR”***, the Court observed it has inherent powers to cancel any title deed if a deceased’s property is being fraudulently taken away by non-beneficiaries. Further the Learned Counsel averred that the transfer of the suit property to the 1st defendant was fraudulent since the said succession proceedings were instituted when the owner was still alive and the 1st Defendant was not a beneficiary of the estate. As a result, the suit property was not available for the purported succession proceedings commenced by the 1st Defendant. Reliance was placed upon the Court’s observation in ***“Kipkemoi & another – Versus - Langat & 3 others (Succession Cause 206 of 2015) [2024] KEHC 4101(KLR) (30 April 2024)”*** where a transfer of land was found to be fraudulent thus: ***“It is clear from the Land Registrar's status Report that Kericho/Silibwet/833 ceased to exist when it was sub - divided on 3rd July, 1986 which therefore meant that the succession proceedings which were predicated on Kericho/Shibwet/833 were a nullity ab initio. I agree with the Applicant that Kericho/Silibwet/833 was not available for succession....”*** 1. The Learned Counsel further relied on the judicial precedent in ***“Re Estate of Leah Wangui Nding’uri (Deceased) eKLR”***, where the High Court observed that:- ***“The grant issued to the Respondents was revoked. It means that, all actions taken by the respondents including the registration of the deceased property in their names was rendered a nullity...... this court has jurisdiction to order cancellation of the said titles so that the land can revert back to the deceased’s names.”*** 1. According to the Learned Counsel, in light of the aforesaid reasons, it was their submissions that this Honourable Court makes a finding that the transfer of title to the 1st Defendant was fraudulent, unlawful, and hence null and void. 2. On whether the 1st Defendant transferred a proper title to the 2nd Defendant. The Learned Counsel opined that the 2nd Defendant did not acquire good title from the 1st Defendant. Evidently, where there is any illegality in the chain of ownership as submitted by the Plaintiff, then such title to land cannot enjoy protection under the law. The Learned Counsel relied on the well settled principle that where parties claim to have titles over one parcel of land, the Court is mandated to conduct an investigation into the root of the titles to establish the real ownership. 3. In the case on ***“Dina Management Ltd – Versus - County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment)”*** the supreme court of Kenya noted that, bona fide purchaser defence cannot save a title with an illegal root. The superior court noted that; ***“Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire titJe regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.*** ***112.We therefore agree with the appellate court that the appellant’s title is not protected under article 40 of the Constitution........”*** 1. The Learned Counsel relied on the case of ***“Megvel Cartons Limited – Versus - Diesel Care Limited & 2 Others (Civil Appeal 70 of (2018) [2023] KECA184 (KLR) (17th February, 2023) (Judgment)”*** where the Court of Appeal observed that: ***“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root.(...)”*** 1. The Learned Counsel further places reliance on ***“Wakaimba – Versus - Registrar & 3 others (Environment &Land Case 617 of 2011)[2025] KEELC 1058 (KLR) (6 March 2025) (Judgment)”*** where the Court reaffirmed that: ***“A title is not an end in itself but rather the culmination of a legally sound process. The mere fact that an individual’s name appears on a green card does not, in and of itself, validate the integrity of their title, particularly in cases where the court is called upon to investigate the root of ownership.*** ***Consequently, and in further reference to the case of Dina Management Ltd – Versus - County Government of Mombasa & 5 others (Petition 8 (E010) of 2021)[2023] KESC 30 (KLR) (21st April, 2023) (Judgment) the court further stated that, ‘The apex court’s decision is clear that there can be no protection offered to a purchaser with respect to a title whose root is defective or marred by illegality.”*** 1. The Learned Counsel submitted that the transfer of the suit property to the 1st Defendant was fraudulently done hence the title acquired thereof was defective, invalid and void. The Plaintiff reiterates that the 1st Defendant did not obtain a good title that could subsequently be transferred to the 2nd Defendant lawfully. 2. To buttress the aforesaid position, the Learned Counsel relied on the decision in ***“Njiru – Versus - Orkesi & 5 others; Tumpes (Interested Party) (Environment & Land Case 671 of 2015) [2024] KEELC 3765 (KLR) (11th April 2024)”***, where the Court observed as follows at Paragraph 126: ***“Having found that the transfer by the 1st Defendant to the 3rd Defendant was illegal hence null and void, the subsequent transfers to the 2nd, 4th and 5th Defendants were consequently unlawful. The 3rd Defendant did not obtain a good title that could subsequently be transferred to the other Defendants lawfully.”*** 1. In the case of:- ***“Matundura (Suing as personal representative and administrator of the Estate of Kerebi Matundura) – Versus - Matundura & 4 others (Environment and Land Case E009 of 2022) [2025] KEELC 8389 (KLR) (3rd December, 2025)”*** where the Court asserted that: ***“As the Courts have severally stated, title to land is the end product of a process and pursuant to Article 40 (6) of the Constitution, the protection of the right to property does not extend to property found to have been unlawfully acquired. An illegally acquired title is a nullity and confers no legal estate.”*** 1. Having stated so, it is the Plaintiff's submission that the purported transfer of title to the suit property from the 1st Defendant to the 2nd Defendant was illegal *ab intio* and the same ought to be declared fraudulent, illegal and void. 2. On whether the 2nd Defendant title should be revoked. The Learned Counsel argued that from the land records presented before this Court specifically the green card of the suit property, it indicates that the 2nd Defendant is the presently registered proprietor of the suit property. The Learned Counsel submitted that the title transferred to the 2nd Defendant by the 1st Defendant was defective hence null and void since the 1st Defendant had fraudulently acquired title to the suit property through unlawful succession process. The Learned Counsel submitted that such title cannot enjoy protection of the law. 3. According to the Learned Counsel it is trite law that a title of a proprietor may be challenged where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. 4. In the case of:- ***“Dina Management Ltd (Supra)”***, the Supreme Court was invited to determine the validity of a title to property acquired through a procedure that is against the law. While dismissing the claim, the Apex Court affirmed that: ***“110. Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.(...)”*** 1. Additionally, and as aforementioned in ***“Njiru – Versus - Orkesi & 5 others; Tumpes (Interested Party) (Environment & Land Case 671 of 2015) [2024] KEELC 3765(KLR) (11th April 2024)”*** the court having found that the 2nd Defendants title was null and void and could not be passed to the 5th Defendant, the court concluded as follows; ***“.........This Court is satisfied that the Certificate of title held by the 5th Defendant was procured illegally and as such it is impeachable and ought to be cancelled and/or revoked.”*** 1. On whether the Plaintiff is entitled to the prayers sought. The Learned Counsel submitted that as evidenced by the documents brought before this court as well as the plaintiff's testimony, the Plaintiff has been able to show that the suit property was purchased by her father, the one Harrison Gichanga Njomo on 18th April, 1978 at a consideration of KES 4,500 and the title was issued as SHIMBA NORTH/KUNDUTSI ‘A’/854. 2. Upon the demise of Mr. Harrison Gichanga, on 1st November 1982, the Plaintiff’s mother, the one Abijah Wakarindi Njomo, filed for letters of administration for her late husband’s estate via Probate and Administration Case No. 241 of 1983 and the Certificate of Confirmation of Grant was subsequently issued on 13th June 1986 for her to hold the property among others in trust for her four children being; June Wangari Gichanga, Sarah Muthoni Gichanga, Mercy Wambui Gichanga and Eric Njomo Gichanga (deceased 31st March, 2003). 3. According to the Learned Counsel, the Plaintiff’s mother commenced the process of transferring the estate of her deceased husband including the suit property in her trusteeship position and a title deed was issued for the suit property on 15th July 2009 as Kwale/S.N/Kundutsi ‘A’/854. The Plaintiff submits that this title issued to her mother, Abijah Wakarindi Njomo was neither challenged nor revoked and the transfer chain leading to her ownership of the suit property was regular and lawful. Further and pursuant to the death of Abijah Wakarindi Njomo on 11th November 2023, her estate devolved to her three surviving heirs June Wangari Gichanga, Sarah Muthoni Gichanga and Mercy Wambui Gichanga. 4. Prior to her death Abijah Wakarindi Njomo had put forth a restriction on the suit property owing to its illegal acquisition process and filed the present suit seeking revocation of the illegal entry on the title and restoration of the same to her name. It was on this basis that the Plaintiff, as a representative of the estate of the deceased, substituted the deceased and pursued the present suit in order to have the suit property revert back to the estate of the deceased. 5. From the foregoing, it was the Learned Counsel’s submissions that she had been able to illustrate to this Honourable court that, the suit property legally and lawfully constitutes the estate of Abijah Wakarindi Njomo and that the same should be registered as such. 6. The Learned Counsel submitted that the transfer of title of the suit property to the 1st Defendant was fraudulent hence null and void due to the illegal succession process that was undertaken through misrepresentation and concealment of material facts. It is unthinkable that the succession was done when the registered owner of the suit property was still alive. Further the 1st Defendant could not transfer a proper title to the 2nd defendant due to the illegal and unlawful means executed by the 1st Defendant to acquire the title. 7. Having regard to the foregoing, the Learned Counsel submitted that this Honourable Court should allow this suit in entirety and enter judgement against the Defendants as prayed in the Amended Plaint dated 28th February, 2025 in the above stated terms.: 8. **Analysis & Determination** 9. I have keenly considered all the filed pleadings, the oral testimony adduced by the Plaintiff’s witnesses, the documentary evidence produced, the written submissions filed by Counsel, and the authorities cited. I have also taken into account the relevant provisions of the Constitution of Kenya, 2010, the Land Registration Act, 2012, the Law of Succession Act, Cap 160, and other applicable statutes. It is trite law that issues for determination in a suit generally flow either the pleadings or as framed by the parties for the court’s determination; see ***“Galaxy Paints Limited – Versus - Falcon Grounds Limited (2006) 2EA 385”***. 10. Before I proceed to identify the issues before this Court, I note that it proceeded as Formal Proof. The suit against the 1st and 2nd Defendants was undefended. Hence, the Plaintiff had a duty to formally prove her case on a balance of probabilities as required by law. 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. Similarly, 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. Additionally, 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. Also, in the case of:- ***“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, in a formal proof hearing, a party with the onus of adducing evidence must produce such sufficient evidence which must satisfy the court as to its truth. It is trite law that in any suit of this nature, the party who seeks to rely on the existence of a fact or a set of facts must provide evidence that those facts exist. From the pleadings filed, evidence adduced and submissions made by and on behalf of the Plaintiff the issue that arises for this court’s determination is whether or not the Plaintiff has acquired title to the suit land by operation of the doctrine of adverse possession. 2. Where a Defendant fails to adduce evidence in support of the Defence and fails to attend court to prosecute the case, the Plaintiff’s evidence escapes the possibility of being controverted by defence evidence. It escapes the scrutiny of cross-examination by the Defendant. It therefore stands unchallenged and uncontroverted. However, the Plaintiff does not escape the burden and standard of proof which he has to satisfy and discharge in accordance with the law in order for his claim to succeed. 3. This is what in law is termed as “**the Burden of Proof”** and is encapsulated for by the provision of Section 107 of the Evidence Act Cap. 80 laws of Kenya which provides as follows:- **“107. Burden of Proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. Although the 3rd Defendant filed a statement of defence but never called a witness or challenged the Plaintiff’s evidence. In the case of:- ***“Lidwaji – Versus - Board of Trustees Alliance Francais De Nairobi [2024] KEELRC 2585 (KLR) - Appeal E016 of 2023”***, the Court reaffirmed the foundational rule regarding uncontroverted evidence. It held that where a respondent files a defence but fails to call any witnesses at trial, the filed defence remains a mere allegation without any evidentiary weight to counteract the claimant’s case. 2. Further in the case of:- ***“Mbithi – Versus - Attorney General (Civil Suit 1105 of 2001) [2024] KEHC 281 (KLR) (Civ) (25th January, 2024) (Judgment) - Civil Suit 1105 of 2001”***, the court laid down the principle plainly: ***“It is trite that a pleading is not evidence; that if a Defendant files a defence and calls no evidence to prove the allegations, the defence remains unsubstantiated, and the claims made in the statement of defence stand unchallenged.”*** 1. Having said as much I will now proceed to the issue; for this Honourable Court to reach an informed, just, equitable, and reasonable decision on the subject matter, the issues for determination have been crystallized into the following five ( 5 ) topical sub‑headings: - 2. ***Whether the suit property Kwale/S.N/Kundutsi “A”/854 was lawfully acquired by the 1st Defendant through succession proceedings.*** 3. ***Whether the transfer of the suit property from the 1st Defendant to the 2nd Defendant conferred a valid and indefeasible title.*** 4. ***Whether the succession proceedings in the Kadhi’s Court were fraudulent, irregular, or void ab initio, given that the registered proprietor was alive and not of Islamic faith.*** 5. ***Whether the Plaintiff, as legal representative of the estate of Abijah Wakarindi Njomo, is entitled to the prayers sought, including revocation of title and restoration of the property to the estate.*** 6. ***Who should bear the costs of the suit.*** ***ISSUE NO. (a) Whether the suit property Kwale/S.N/Kundutsi “A”/854 was lawfully acquired by the 1st Defendant through succession proceedings?*** 1. Under this sub‑heading the Court examined whether the 1st Defendant lawfully acquired the suit property through succession proceedings. In Kenya, the legal framework governing land ownership and boundary disputes includes the provision of Article 40 of the Constitution of Kenya, 2010 which protects the rights to property. It provides as follows:- **40.(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.......** **(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired”.** 1. Further, the efficacy and effectiveness of registration and determination of lawful proprietorship of registered land in Kenya is governed by the provision of Sections 24, 25 and 26 ( 1 ) of the Land Registration Act, 2012. Section 24 Act provides that subject thereto:— **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** **b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of lease.** 1. Section 25 of the Act states as follows:- **“(1) 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:—** **(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and** **(b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.** **(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee”.** 1. Section 26 states as follows:- **“(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. In the case of:- ***“Alice Chemutai Too – Versus – Nickson Kipkurui Korir & 2 Others [2015] eKLR”*** Justice Sila Munyao held that*:* ***“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara –Versus - Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012 where I stated as follows:- “…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent titleholder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally, or through a corrupt scheme. The titleholder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions. “I stand by the above words and I am unable to put it better that I did in the said dictum.”*** 1. I am fully in agreement with Munyao J. that the provision of Section 26 is meant to protect the real title holders from unscrupulous persons whose intention is to benefit where they have not sown. It is trite that he who alleges must prove, as provided by Section 107 of the Evidence Act. The Plaintiff alleged fraud on the part of the Defendants, and they had a duty to prove the existence of such fraud. 2. **Black’s Law Dictionary, 9th Edition** defines fraud as; **“Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a Court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”.** 1. In the case of ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [Supra]”*,**the Court held that; ***“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13th Edition at page 427:*** ***“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford – Versus - Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308).*** 1. Where a person’s title is under attack, he must of necessity give an account on how he acquired the same; the Accuser must also show the court that the property as truly obtained in a fraudulent transaction. In the case of ***“Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No.239 of 2009”*,**where the Appeal Court held that: - ***“We have stated that when a registered proprietor root of 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. It is trite that fraud must be specifically proved. See the case of ***“Vijay Morjaria - Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR”***, where the Court held:- ***“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”*** 1. See also the case of ***“Koinange & 13 others – Versus - Charles Karuga Koinange 1986 KLR”*** at page 23, where the court held that: ***“Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”*** 1. These provisions are fortified by judicial precedent. In the case of:- ***“Joseph N. K. Arap Ngok – Versus - Justice Moijo Ole Keiwua & 5 Others [1997] eKLR”***, the Court of Appeal held: ***“It is trite that the registration of a person as the proprietor of land vests in that person absolute ownership of that land together with all rights and privileges appurtenant thereto. Such title is indefeasible unless it is shown that it was obtained through fraud or misrepresentation.”*** 1. As already stated at the Preamble of this Judgement, this a case of daylight and glaring fraud by very sophisticated and daring fraudsters. The record demonstrates that the 1st Defendant filed a succession Petition on 14th May, 2019 in the Kadhi’s Court at Kwale, falsely presenting himself as the son of the deceased, Abijah Wakarindi Njomo, notwithstanding that she was still alive at the time. He purported to rely on the provision of Article 170(5) of the Constitution of Kenya (2010), Section 5 of the Kadhi’s Court Act, and Section 48(2) of the Law of Succession Act, Cap. 160 seeking determination of heirs, distribution of the estate, and vesting orders. 2. The 1st Defendant and others well placed in Government positions highly and well orchestrated this corrupt and fraudulent scheme. Their Master Plan was simple – identification of a parcel of land at the land registry which belonged to the mother of the Plaintiff. It must have been undeveloped or with no activity taking place on it. They agreed to have declared as dead. He acted as “*the sole heir – son”* to the deceased. He approached the Ministry of Interior and the Chief of Kwale Kundutsi issued him with the fraudulent letters dated 10th May, 2019 purporting to confirm Abijah’s death. Based on this letter all the other process became extremely smooth and flowing - the 1st Defendant was able to process fictious/fraudulent “*Certificate of Death”* (perhaps even “*a burial permit” etc).* The 1st Defendant used these documentations to support the Petition before the Khadhi’ Court for Grant Letters of Administration. On 15th May, 2019, Hon. Wendo S. Wendo, then Resident Kadhi, issued orders vesting the entire parcel Kwale/S.N/Kundutsi “A”/854 in the 1st Defendant and directed the District Land Registrar, Kwale, to effect transmission. The green card confirms that the 1st Defendant was registered as proprietor on 28th May, 2019, and within twelve days, transferred the property to the 2nd Defendant on 10th June, 2019. 1. Clearly, these letters were false, as the death was not registered and no official records existed to confirm it. The reliance on such documents demonstrates a deliberate scheme by the 1st Defendant to mislead the Court and unlawfully obtain title. 2. The Court observes that succession proceedings are legally permissible only upon the death of a registered proprietor. At the material time, Abijah Wakarindi Njomo was alive, and therefore the property could not lawfully form part of an estate subject to succession. The Kadhi’s Court orders were thus founded on falsehoods and misrepresentation. Moreover, the Kadhi’s Court exercises jurisdiction exclusively in matters of Islamic law where parties profess the Islamic faith. The evidence before this Court shows that Abijah Wakarindi Njomo was a Christian and had never subscribed to Islam. The invocation of the Kadhi’s Court jurisdiction was therefore irregular, unlawful, and void ab initio. 3. The subsequent revocation of the grant by Hon. Jamal Opacha on 28th February, 2025 confirmed that the succession proceedings were defective, fraudulent, and incapable of conferring any legal rights. The revocation order underscored the principle that succession proceedings founded on misrepresentation and fraud cannot stand, and any rights purportedly derived therefrom collapse with the fraudulent foundation. 4. The Court is guided by the provision of Section 26(1)(b) of the Land Registration Act, 2012, which provides that a certificate of title may be challenged where it has been acquired illegally, unprocedurally, or through a corrupt scheme. The facts of this case squarely fall within that provision. The 1st Defendant’s acquisition of title was tainted by fraud, misrepresentation, and illegality, and therefore the title is impeachable. 5. Accordingly, the Honourable Court finds that the 1st Defendant did not lawfully acquire the suit property through succession proceedings. The process was fraudulent, irregular, and void ab initio, and any title derived therefrom is incapable of protection under the law. ***ISSUE NO. (b)*** ***Whether the transfer of the suit property from the 1st Defendant to the 2nd Defendant conferred a valid and indefeasible title.*** 1. Under this sub‑heading the Court examined whether the transfer of the suit property from the 1st Defendant to the 2nd Defendant conferred a valid and indefeasible title. The evidence on record shows that the 1st Defendant was registered as proprietor of Kwale/S.N/Kundutsi “A”/854 on 28th May, 2019 pursuant to succession proceedings that had already been found to be fraudulent and void ab initio. Within twelve days, on 10th June, 2019, the 1st Defendant transferred the property to the 2nd Defendant, who was subsequently registered as proprietor. This unusually swift transfer, occurring in less than two weeks, is itself indicative of a scheme designed to quickly pass on the property before scrutiny could be applied to the legitimacy of the succession process. The speed of the transaction, coupled with the absence of any demonstrable due diligence, strongly suggests collusion or at the very least reckless disregard for the integrity of the title. 2. The Court observes that the principle of indefeasibility of title under the provision of Section 26(1) of the Land Registration Act, 2012 protects registered proprietors only where the acquisition of title is free from fraud, illegality, or procedural impropriety. The law is clear that indefeasibility is not absolute; it is conditional upon the integrity of the process by which the title was obtained. Where the root of title is defective, subsequent transfers cannot cure the defect. The doctrine of bona fide purchaser for value without notice, often invoked to shield innocent purchasers, does not apply where the original acquisition was unlawful. A void title cannot be the foundation of a valid transfer, and any subsequent transferee inherits the taint of illegality. 3. At this juncture, the main issue this Court needs to determine is whether the Plaintiffs are bona fide purchaser for value without notice. **Black’s law Dictionary 10th Edition** defines a **‘bona fide purchaser**’ as follows: **‘One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.’** 1. In the case of ***“Arthi Highway Developers Limited (Supra)”***, the Court of Appeal dealt exhaustively with the issue of bona fide purchaser for value without notice and held that a party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular. Further in the Uganda Court of Appeal Case of ***“Katende – Versus - Haridar & Company Ltd (2008) 2 EA 173”***, the Court defined what amounts to a bona fide purchaser for value thus: ***‘A bona fide purchaser for value is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, he must prove the following:*** * + - * 1. ***He holds a Certificate of Title*** 2. ***He purchased the Property in good faith;*** 3. ***He has no knowledge of the fraud;*** 4. ***The vendors had apparent valid title;*** 5. ***He purchased without notice of any fraud;*** 6. ***He was not party to any fraud.*** ***A bona fide purchase of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.*** 1. While in the case of ***“Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura – Versus - Attorney General & 4 others (2017) eKLR”***, the Court of Appeal held that a party cannot claim a bona fide purchaser for value where the vendor did not have a valid title. 2. The Plaintiff demonstrated that the 1st Defendant’s registration was founded on misrepresentation, fraudulent letters purporting to confirm the death of Abijah Wakarindi Njomo, and irregular succession proceedings in the Kadhi’s Court despite the registered proprietor being alive and not of Islamic faith. These fraudulent acts rendered the 1st Defendant’s title a nullity. Consequently, the 1st Defendant did not acquire a valid title capable of transfer, and any subsequent transaction based on that title was equally void. 3. The Court is guided by the decision of the Supreme Court in ***“Dina Management Ltd (Supra)”***, which held that Article 40 of the Constitution does not protect property unlawfully acquired, and that a purchaser cannot rely on the bona fide purchaser doctrine where the root of title is defective. Similarly, in ***“Njiru – Versus - Orkesi & 5 others (Supra)”***, the Court held that subsequent transfers based on an illegal title are equally unlawful and void. The jurisprudence consistently affirms that the sanctity of title is not a shield for fraud or illegality. 4. The Court also recalls the principle articulated in ***“Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”***, where it was held that when the root of title is challenged, it is not sufficient to merely dangle the instrument of title as proof of ownership; the registered proprietor must demonstrate the legality of the acquisition. In the present case, the 2nd Defendant has not shown that due diligence was undertaken, nor has he provided evidence to rebut the Plaintiff’s demonstration of fraud at the root of the title. The absence of such evidence underscores the conclusion that the 2nd Defendant either knew or ought to have known of the irregularities surrounding the acquisition. 5. The Court further notes that the doctrine of ***“nemo dat quod non habet***”—no one can give what they do not have—applies squarely in this case. Since the 1st Defendant’s title was void, he had no valid interest to transfer. The 2nd Defendant, therefore, could not acquire a better title than that held by the 1st Defendant. Upholding the 2nd Defendant’s registration would amount to legitimizing fraud and undermining the constitutional and statutory safeguards designed to protect property rights and public trust in land administration. 6. Applying these principles, the Court finds that the 2nd Defendant’s title was tainted by the same fraud and illegality that characterized the 1st Defendant’s acquisition. The transfer did not confer a valid or indefeasible title. The 2nd Defendant cannot claim protection under the law, as the chain of ownership was broken at its root. The law does not permit the laundering of a fraudulent title through subsequent transfers, and to uphold such a title would be to sanction illegality and undermine the constitutional protection of property rights. 7. Accordingly, the Court holds that the transfer of the suit property from the 1st Defendant to the 2nd Defendant did not confer a valid and indefeasible title. The 2nd Defendant’s registration was null and void, and the title is liable to cancellation ***ISSUE No. (c) Whether the succession proceedings in the Kadhi’s Court were fraudulent, irregular, or void ab initio, given that the registered proprietor was alive and not of Islamic faith*** 1. Under this sub‑heading the Court examined whether the succession proceedings in the Kadhi’s Court were conducted lawfully or whether they were fraudulent, irregular, and void ab initio. The record shows that the 1st Defendant filed a succession petition in the Kadhi’s Court at Kwale on 14th May, 2019, misrepresenting himself as the son of Abijah Wakarindi Njomo. At the time, Abijah was alive and remained the registered proprietor of the suit property. Succession proceedings are legally permissible only upon the death of a registered proprietor, and therefore the initiation of succession while the owner was alive was fundamentally defective and unlawful. This act alone undermined the very foundation of the petition, as succession law is premised on the administration of estates of deceased persons, not living proprietors. 2. The Court notes that the Kadhi’s Court exercises jurisdiction under the provision of Article 170 (5) of the Constitution of Kenya, 2010, the Kadhi’s Court Act, and the Law of Succession Act, Cap. 160 but only in matters where parties profess the Islamic faith. The evidence before this Court confirms that Abijah Wakarindi Njomo was a Christian and had never subscribed to Islam. The invocation of the Kadhi’s Court jurisdiction was therefore irregular and void ab initio, as jurisdiction cannot be conferred by consent or misrepresentation—it must flow directly from the Constitution and statute. 3. The fraudulent letters dated 10th May, 2019 from the Ministry of Interior and the Chief of Kwale Kundutsi, purporting to confirm Abijah’s death and burial, were used to process and support the Petition. These letters were false, as the death was not registered and no official records existed to confirm it. I reiterate that the reliance on such documents demonstrates a deliberate scheme by the 1st Defendant to mislead the Court and unlawfully obtain title. Fraudulent documentation of this nature strikes at the heart of judicial integrity, as courts rely on official records to make determinations of fact. 4. As already stated, the orders issued by the then Resident Kadhi vesting the entire suit land to the 1st Defendant and directed the District Land Registrar, Kwale, to effect transmission were founded on misrepresentation and fraud, and therefore lacked legal validity. A court order obtained through deceit cannot confer rights; it collapses once the deceit is exposed. 5. Luckily, on 28th February, 2025 the Grant issued to the 1st Defendant were revoked by a Kadhi’s Court. It confirmed that the succession proceedings were defective, fraudulent, and incapable of conferring any legal rights. The revocation order underscored the principle that succession proceedings founded on misrepresentation and fraud collapse with their fraudulent foundation. The revocation also reaffirmed the doctrine that courts retain inherent jurisdiction to undo fraudulent acts and restore justice. 6. The Court is guided by precedents such as ***“Re Estate of Leah Wangui Nding’uri (Deceased) (Supra)”***, which held that grants obtained fraudulently render all subsequent actions, including registration of property, nullities. Similarly, in ***“Santuzzabilioti alias Mei Santuzza (Supra)”***, the Court affirmed its inherent power to cancel titles where succession proceedings were fraudulent. These authorities emphasize that fraud vitiates everything, and no rights can flow from a fraudulent act. 7. The Court also recalls the principle articulated in ***“Munyu Maina (Supra)”***, that when the root of title is challenged, the registered proprietor must demonstrate the legality of acquisition. In this case, the 1st Defendant’s reliance on fraudulent succession proceedings failed to meet that burden. 8. Accordingly, the Court finds that the succession proceedings in the Kadhi’s Court were fraudulent, irregular, and void ab initio. They could not lawfully vest the suit property in the 1st Defendant, and any rights purportedly derived therefrom were null and void. ***ISSUE No. (d) Whether the Plaintiff, as legal representative of the estate of Abijah Wakarindi Njomo, is entitled to the prayers sought, including revocation of title and restoration of the property to the estate.*** 1. Under this sub‑heading the Court examined whether the Plaintiff, having been duly substituted as legal representative of the estate of Abijah Wakarindi Njomo, was entitled to the reliefs sought in the Amended Plaint. 2. The evidence before the Court demonstrates a clear and lawful chain of ownership of the suit property. The property was originally acquired by Mr. Harrison Gichanga Njomo in 1978 through purchase from Ali Omar Mwakiama, and a title deed was issued in his name. Upon his death on 1st November, 1982, his widow, Abijah Wakarindi Njomo, lawfully petitioned for letters of administration in Succession Cause No. 241 of 1983. She was issued with a Certificate of Confirmation of Grant dated 13th June 1986, which authorized her to hold the property in trust for her children. This lawful transmission culminated in the issuance of a title deed to Abijah on 15th July, 2009, thereby regularizing her trusteeship and confirming her beneficial ownership of the estate. 3. This chain of ownership remained unchallenged until the fraudulent succession proceedings initiated by the 1st Defendant in 2019. The Plaintiff has demonstrated that the 1st Defendant misrepresented himself as Abijah’s son, procured fraudulent letters purporting to confirm her death, and unlawfully invoked the jurisdiction of the Kadhi’s Court despite Abijah being alive and professing the Christian faith. The orders issued by the Kadhi’s Court vesting the property in the 1st Defendant, were therefore void ab initio. The subsequent transfer to the 2nd Defendant was equally defective, as it was predicated on a fraudulent and unlawful foundation. 4. The Plaintiff, as the duly substituted legal representative of the estate of Abijah Wakarindi Njomo, is therefore entitled to seek cancellation of the fraudulent titles and restoration of the property to the estate. The reliefs sought, including revocation of the Defendants’ titles, vesting orders in favour of the estate, and vacant possession, are consistent with the law and necessary to uphold justice. They are also aligned with the equitable principle that no party should benefit from their own fraud, and that property reserved for lawful heirs must be protected from unlawful alienation. 5. Accordingly, the Court finds that the Plaintiff, as legal representative of the estate of Abijah Wakarindi Njomo, is entitled to the prayers sought in the Amended Plaint. The suit property should revert to the estate of the deceased, and the fraudulent titles held by the Defendants should be cancelled forthwith. ***ISSUE No. (e) Who should bear the costs of the suit*** 1. Under this sub‑heading the Court examined whether the costs of the suit should be borne by the Defendants or otherwise apportioned. It’s now well established that the issue of Costs is at the discretion of Court. Costs means any award that a party is as the conclusion of any legal action, proceedings and process of any litigation. The Proviso of the provision of Section 27(1) of Civil Procedure Act, Cap. 21 provides that costs follow the events. 2. By events it means the result such a legal action, process and/or proceedings. (See the Supreme Court case of ***“Jasbir Rai Singh Rai – Versus Tarchalon Singh (2014) eKLR;*** and the case ***Rose Mary Wambui Munene – Versus – Ihururu Dairies Co – Operative Limited (2014) eKLR, Kenya Sugar Board – Versus – Ndungu Gathini (2013) eKLR;*** and ***Cecilia Nyayo – Versus Barclays Bank of Kenya Limited (2016) eKLR”*** where Courts held that:- ***“The basic rule on attribution of costs is that costs follow the event……..it is well recognised that the principles costs follow the event is not be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting of defending the case”***. 1. In the present matter, the Plaintiff has successfully demonstrated that the 1st Defendant fraudulently initiated succession proceedings while the registered proprietor was alive, misrepresented himself as a son of the deceased, and procured false documents to support his claim. The Plaintiff has further shown that the 2nd Defendant acquired title from the 1st Defendant in circumstances tainted by fraud and illegality. The fraudulent acts of the Defendants necessitated the Plaintiff’s recourse to litigation, including applications for restrictions, revocation of grants, and the filing of the present suit. 2. The Court also notes that despite being served with pleadings and even substituted service, the 1st and 2nd Defendants neither entered appearance nor file any defence. The 3rd Defendant filed an appearance but did not file a defence and was equally absent during the hearing. This conduct demonstrates disregard for the judicial process and contributed to unnecessary delay and expense in resolving the matter. 3. Given these circumstances, the Plaintiff was compelled to expend resources to protect the estate of Abijah Wakarindi Njomo from fraudulent alienation. The Defendants, having been the authors of the fraud and irregularities, must bear the consequences of their actions. It would be inequitable to burden the Plaintiff, who has vindicated her rights and those of the estate, with the costs of proceedings necessitated by the Defendants’ misconduct. 4. Accordingly, the Court finds that the Defendants should bear the costs of the suit. The Plaintiff, as the successful party, is entitled to costs as against the Defendants jointly and severally. 5. **Conclusion and disposition** 6. Ultimately, upon conducting an elaborate analysis of the framed issues herein, this Honourable Court concludes, on a Preponderance of Probability and a balance of convenience, that the Plaintiff has successfully established her case against the Defendants. For avoidance of doubt, I specifically make the following orders: – 7. **THAT Judgment be and is hereby entered in favour of the Plaintiff in accordance with the Amended Plaint dated 28th February, 2025.** 8. **THAT a declaration be and is hereby made that the registration and transfer of the suit property LR. No. Kwale/S.N/Kundutsi “A”/854 to the 1st Defendant through succession proceedings conducted while the registered proprietor was alive was fraudulent, unlawful, irregular, null and void ab initio, and ineffectual to confer any right, interest, or title upon the 1st Defendant.** 9. **THAT a declaration be and is hereby made that the subsequent transfer of the suit property from the 1st Defendant to the 2nd Defendant was equally fraudulent, unlawful, irregular, null and void ab initio, and ineffectual to confer any right, interest, or title upon the 2nd Defendant.** 10. **THAT the Chief Land Registrar and the Land Registrar, LR. No. Kwale Land Registry, do and are hereby directed to rectify the land register by cancelling the entries relating to LR. No. Kwale/S.N/Kundutsi “A”/854 made in favour of the 1st and 2nd Defendants and to restore the title to the estate of Abijah Wakarindi Njomo.** 11. **THAT a vesting order be and is hereby issued directing that the suit property LR. No. Kwale/S.N/Kundutsi “A”/854 be registered in the name of the estate of Abijah Wakarindi Njomo, to be held in trust for her lawful heirs.** 12. **THAT a permanent injunction be and is hereby issued restraining the 1st and 2nd Defendants, whether by themselves, their agents, servants, or assigns, from alienating, transferring, charging, leasing, subdividing, disposing of, wasting, entering or remaining upon, or in any manner interfering with the Plaintiff’s quiet possession and enjoyment of the suit property.** 13. **THAT the purported alienation and occupation of the suit property by the Defendants is hereby declared unlawful and irregular, the same having been effected without a lawful root of title or compliance with statutory procedures.** 14. **THAT the costs of this suit shall be borne by the Defendants jointly and severally to be awarded to the Plaintiff having succeeded in her claim.** **IT IS ORDERED ACCORDINGLY.** **JUDGEMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………2ND ……..DAY OF……JULY….. 2026.** **………………..…………………….** **HON. MR. JUSTICE L. L. NAIKUNI,** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Judgment delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant. 2. M/s. Ndunga Advocate holding brief for Mr. Hassan Advocate for the Plaintiff. 3. No appearance for 1st, 2nd & 3rd Defendants.