https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5250

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELC/6/2018 MILDREDD AKOTH VS MWAFUMBIRI MWATSAMI JUDGMENT Mildred Akoth Warrakah suing as the Administrator and legal representative of the estate of Gakweli Mohamed Warrakah- Deceased (hereinafter referred to as the Plaintiff) has come to this court stating that at all relevant times to this suit, Captain Gakweli Warraka (deceased) is the legal registered owner of the parcel of land known as Plot No. Kwale/Shimba North/Kundutsi "B"/ 1062. (hereinafter referred to as the suit property) The Plaintiff is a legal representative and administrator of the estate of the late Captain Gakweli Warraka. According to the plaintiff, Mwafumbiri H. Mwatsami (hereinafter referred to as the Defendant) is a trespasser on the said piece of land who previously had been given notice to vacate the land but refused to do so. The Plaintiff avers that the said plot was bought by the late Captain Gakweli Warraka in 1988 through an auction and subsequently registered in his favour in 1994. The Plaintiff further avers that the Defendant has been over a period of time been informed to vacate the said land and not to develop it while he is in occupation. The Plaintiff believes that the tenure and right over the subject property herein is unfettered, the same is absolutely owned by the Plaintiff who is one of the beneficiaries of the estate. The Plaintiff avers that the Defendant herein is wrongly in occupation and use of the said parcel of land known as Plot No. Kwale/Shimba North/Kundutsi "B"/1062 and thus trespasser. The Defendant has denied the Plaintiff her right of use over the said Plot as he has and is continuing to erect illegal structures thereon. He is illegally occupying the said piece of land. The Plaintiff believes that unless the Defendant is evicted, he will continue with the illegal action(s) on the said Plot No. Kwale/Shimba North/Kundutsi "B"/ 1062 and thus occasioning the Plaintiff irreparable loss, damage and prejudice. Despite demand and notice of intention to sue having been given to the Defendant, the Defendant has failed, refused and/or neglected to heed to the Plaintiff" s call thereby rendering this suit necessary. The Plaintiffs prays for judgment against the Defendant for a declaration that the Defendant is a trespasser on the suit premises which is all that piece of land situated in Kwale County being Plot No. Kwale/Shimba North/Kundutsi. "B"/ 1062 measuring sixteen (16.0) Hectares or thereabouts. The plaintiff prays for a mandatory injunction to order the Defendant forthwith to pull down and/or remove the structures from the Plaintiffs land from all that piece of land situated in Kwale County being Plot No. Kwale/Shimba North/Kundutsi "B"/ 1062 measuring sixteen (16.0) Hectares or thereabouts. Furthermore he prays for an eviction order directing the Plaintiff to evict the Defendant from all that piece of land situated in Kwale County being Plot No. Kwale/Shimba North/Kundutsi "B"/1062 measuring sixteen (16.0) Hectares or thereabouts and pull down the Defendant's constructions/structures standing thereon. Lastly, he prays for an order directing the Kwale County Commissioner and/or administration assisted by the Officer Commanding Kwale Police Station to supervise and provide security during the eviction. Plus Costs and interest. The defendant filed a statement of defence whose import is that the Plaintiff's suit is scandalous, frivolous, vexatious and calculated continuity of impunity and fraud in land grabbing and the same has been brought to in bad faith and tast to legalize illegality. According to the defendant, the Plaintiff is the fraudulent land grabber who illegally, unlawfully and committed perjury and forgery into registering himself the suit land and put the Plaintiff to strict proof thereto. The Defendants denies that he is a trespasser and states that the Defendant is son of Abdallah Mwamtsame Ali Chuvi who was the legal owner of parcel Kwale/Shimba Hills North/Kundutsi B /1062 hence is not a trespasser but rightly in possession, occupation and use and thereby put the Plaintiff to strict proof thereto. The Defendant denies the contents of paragraph 6 of that the suit land was bought in an auction and states that the purported auction was fraudulent, scandal and trip against the Defendant's fathers land to fraudulently take it in a way which can appear to be lawful. The particulars of fraud are that the purported auction and sale of the suit land was not gazette in the Kenya Gazette as required. That no notice was issued to the Defendant or his father on the purported auction of the suit land. Failure to issue the said mandatory notice to the Defendant's father and Defendant renders the entire auction null and void because. Failure to issue the said notice to the Defendant's father and or the Defendant was against the rules of natural justice which denied them of their constitutional rights and this is against the spirit of the constitution which dictates fair administration of justice. Before the fraudulent auction, the plaintiff forged charge documents that the Defendant father had taken loan which the fraudulent documents were unlawful and illegally registered against the Defendant's father title parcel Kwale/Shimba Hills North/Kundutsi B /1062. The defendant states that the purported forged charge documents were purported received and stamped with a fake and forged stamp at Kualer instead of KWALE land registry. The purported charge and or application for loan to Bank of Credit & Commerce international (Overseas) Ltd by the Defendant's father is forgery, fraud and factious because the said document does not meet the thresh hold for the financial institution instruments for loan. The purported instrument was not signed by the Defendant's father who was learned and the purported signature and or mark therein was forged. That when the forged loan application was made there was no legal consent issued by the land control board because there were no supporting minutes and or proceedings of the board and the purported consent was forgery, wanting, unlawful, illegal and void in law. The Application for consent was not signed by the Defendant's father and it is mandatory that it be signed by the registered owner of the title and the purported signature and or mark on the said consent application was forged. That the purported sale was supposed to be advertised and be put in the Kenya Gazette and the same was supposed to be conducted by a Licensed Auctioneer who is supposed to issue a certificate to the highest bidder. The defendant states that the purported auction did not meet the threshold standards of a Public Auction and is null and void hence the title deed for parcel Plot No. Kwale/Shimba North/Kundutsi "B"/ 1062was fraudulently and unlawfully acquired. That it is a requirement that land acquired through auction should have all auction documents including Kenya gazette, notice to affected party duly served with an affidavit of service, copy of valid license of the Auctioneer in the Land Registry parcel file for proof and records. The Defendant states that this Honourable Court cannot be used to legalize impunity, fraud, forgery and corruption while the plaintiff’s title deed and its roots are wanting in law. The Defendant denies having been served with a demand and what was purported to be issued as notice is an academic exercise to fit in the procedure but not reality as continuity for impunity. The Defendant prays that the Plaintiff's case be dismissed with costs. In the Counter Claim the defendant is the plaintiff and the administrator of the estate of Abdallah Mwamtsame Ali Chuii the Defendant is a female adult of sound mind service upon him shall be effected by a private Court Process server through the Plaintiff. He reiterates each and every averment contained in his defence that he lives on parcel Kwale/Shimba North/kundutsi 'B'/1062 together with his mother siblings and their children and they do not have another place to call home. The Plaintiff in this counter claim avers that he is over forty years and was born and together with his deceased father developed this land by planting coconut trees, cashew nut trees among other crops. The Plaintiff fraudulently, illegally and unlawfully registered himself the suit land parcel Kwale/Shimba North/kundutsi 'B'/1062 from dubious transactions and forgeries that the Plaintiff's deceased father took loan and failed to pay. The defendant avers that the plaintiff fraudulently and illegally registered forged loan application which was not signed by his father against his father's parcel Kwale/Shimba North/kundutsi 'B'/1062 and subsequently registered himself as a result of the fraudulent illegal and unlawful auction. The particulars of fraud are that the purported auction and sale of the suit land was not gazetted in the Kenya Gazette as required. No notice was issued to the Plaintiffs' father in the Counter Claim or the Plaintiff on the purported auction of the suit land. Failure to issue the said mandatory notice to the Plaintiffs' father in the Counter Claim or the Plaintiff renders the entire auction null and void because. Failure to issue the said notice to the Plaintiffs' father in the Counter Claim or the Plaintiff was against the rules of natural justice which denied them of their constitutional rights and this is against the spirit of the constitution which dictates fair administration of justice. Before the fraudulent auction, the plaintiff forged charge documents that the Plaintiff's father in the Counter claim had taken loan which the fraudulent documents were unlawful and illegally registered against the Plaintiff's father title parcel Kwale/Shimba Hills North/ Kundutsi B /1062. The purported forged charge documents were purported received and stamped with a fake and forged stamp KUALE instead of KWALE land registry. The purported charge and or application for loan to Bank of Credit & Commerce international( Overseas) Ltd by the Plaintiff's father is forgery, fraud and factious because the said document does not meet the thresh hold for the financial institution instruments for loan. The purported instrument was not signed by the Plaintiff's father who was learned and the purported signature and or mark therein was forged. The defendant states that when the forged loan application was made there was no legal consent issued by the land control board because there were no supporting minutes and or proceedings of the board and the purported consent was forgery, wanting, unlawful, illegal and void in law. That the Application for consent was not signed by the Plaintiff's father and it is mandatory that it be signed by the registered owner of the title and the signature and or make on the said consent application was forged. That the purported sale was supposed to be advertised and be put in the Kenya Gazette and the same was supposed to be conducted by a Licensed Auctioneer who is supposed to issue a certificate to the highest bidder. That the purported auction did not meet the threshold standards of a Public Auction is null and void hence the title deed for parcel Kwale/Shimba North/Kundutsi 'B'/1062 was fraudulently and unlawfully acquired and that it is a requirement that land acquired through auction should have all auction documents including Kenya gazette, notice to affected party duly served with an affidavit of service, copy of valid license of the Auctioneer in the Land Registry parcel file for proof and records. The defendant avers in the counter claim that since the plaintiff crowned with corruption fraudulently, illegally and unlawfully registered himself the suit land the suit land should be reverted back to the owner unconditionally. The defendant prays for judgment against the plaintiff. That parcel Kwale/Shimba North/Kundutsi 'B'/1062 be reverted back to Abdallah Mwamtsame Ali Chuvi and a permanent injunction order be issued restraining Mildred Akoth Warrakah, her children, family members, agents, employees servants and anybody deriving interest from them from claiming, leasing, transferring, entering, trespassing, encroaching, disturbing and or interfering with the afore said parcel Kwale/Shimba North/Kundutsi 'B'/1062. Plus costs of the suit. Evidence on record Mildred Akoth Warakkah states under oath that she brings this action as the administrator of the estate of the late Captain Gakweli Warraka who is the registered owner of all that piece of land situated in Kwale County being Plot No. Kwale/Shimba North/Kundutsi “B”/1062 measuring sixteen (16.0) Hectares or thereabouts. That the Defendant has refused to vacate the said plot even after numerous occasions of requesting him to vacate the land since it was bought in an auction in 1989. Since the death of Captain Gakweli Warraka, who was my husband, I have also made attempts to have the Defendant vacate the land and since the same has been awarded to the Dependants of Gakweli there has risen an urgent need to have the Defendant to vacate the land. The Defendant is wrongly in occupation and use of the said parcel of land and thus trespasses. He has denied us the right of possession over the said Plot as he is erecting illegal structures thereon and unless the Defendant is evicted, he will continue with the illegal action on the said plot, thus occasioning irreparable loss and prejudice to dependants of the late Captain Gakweli Warraka who have a right to vacant possession of the property. The plaintiff prays that this court issue an eviction notice to the Defendant to allow the heirs take possession of the land. On cross examination by Mr Mwafumbiri, She states that her husband never changed his name and did not correct the error in the title because he was a busy man. The title did not have his husband’s identity card number and had typographical errors but it still remained genuine. The sale of land was through a public auction and the money was paid by her husband. The discharge of title by the bank was on 15th December 2026 and the discharge. The bank gave them the documents. The plaintiff did the discharge of charge. The plaintiff called Mr Juma Hassan Mwachangoma who testified that he knew the late Captain Muhammed Gakweri Warakkah as his first cousin and was a pilot with the Kenya airways. According to the witness, the name of the deceased was Gakweri Mohammed Warrakah. He told that he bought the land in a bank auction. Someone took a loan and was unable to pay. Gakweri died in 2006 whereas the father to the defendant died in 2006. He states that he does not know the documents as 1994. The plaintiff closed his case on the on the 23rd February 2026. Mwafumbiri Hamisi Mwatsami testified that on the 14th day of December, 2018, he applied for a grant of letters of Administration Ad litem and was issued with the same. His late father was the legal registered owner of parcel Kwale/Shimba North/kundutsi 'B'/1062. That when his father was registered as owner of the suit land, he did not go to the Land Registry at Kwale to collect the Title deed. That the failure of his father to collect the said title deed became a loop hole for the land grabbers who took the said title deed and intermeddled with it and crafted a way how they could grab it. That his late father is the one who started farming on the suit land where he cleared the thick bush inhabited by dangerous animals and then planted coconut trees, cashew nut trees, mango trees and practiced horticultural farming. That the trees including coconut trees, cashew nut trees, mango trees are visible on the suit land and they continue to harvest their fruits. His late father never applied for any loan from the Bank of Credit & Commerce international (Overseas) Ltd That he was born, grown and live on the suit land together with the widows of the deceased and his siblings. The Plaintiff's title is marred with corruption, forgery, perjury, unlawfully, illegally and fraudulently acquired through misrepresentation of facts by land curtails and land grabbers. The purported consent obtained from Matuga Land Control Board on 6/11/1982 was forgery, null and void because there were no minutes made by the land control board as required by law. The Application for consent is mandatorily signed by the registered owner of the land but the purported Application for consent attached by the Plaintiff is not signed by his late father who was learned and knew how to read, write and in fact he used to buy and read standard newspaper on daily basis. That the purported documents of Bank of Credit and Commerce International (Overseas) which are allege that his father applied for loan do not have the signature of his late father and the purported signature and or mark put there on those forms is forgery. According to the defendant, there is no single time his father failed to sign a document. That the Rubber stamp purported to have been stamped by the Kwale Land Registry on document MHM004A of the purported credit Bank was forgery because it read Kuale instead of Kwale. That the person Ahmed Juma Mwasharifu who was purported to have been paid money by the Bank or Credit and Commerce International did not sign any document or give his particulars to justify that he deserved and or had complied to qualify to receive the said loan. That the title issued to Gakwel Mohammed Warraka on 1/3/1994 was not warranted in law because its roots and processes were dubious, suspect, forgeries, perjury, corruption and the same had been illegally, unlawfully and fraudulently acquired.The purported Bank of Credit and Commercial International did not issue his father with a notice for defaulting to pay the purported loan. That failure to serve his father with the mandatory notice of failure to pay the loan by the purported Bank of credit and Commerce International (Overses) limited rendered the sale of his father's land null and void because this denied his father fair administration of justice. That the purported sale was supposed to be advertised and be put in the Kenya Gazette and the same was supposed to be conducted by a Licensed Auctioneer who is supposed to issue a certificate to the highest bidder. That the purported sale not having met the threshold standards of a Public Auction is null and void hence the title deed for parcel Kwale/Shimba North/Kundutsi 'B'/1062 was fraudulently and unlawfully acquired. That from the Plaintiffs annexed documents, there is no agreement and or power of attorney registered on the land to show that his father had given such authority for one to take loan. That he has been and is still in possession, occupation and development of the suit land. That it is trite law that and defaulter of paying loan should be served with a mandatory notice, by the financial institution but my late father was not served with any such notice. That his father never at all and did not take any loan facility from the purported Bank of Credit and Commercial International (Overseas) Limited. That the purported forms and or applications forms for the said loan application by his father is a pure calculation of fraud and misrepresentation by the land fraudlers and barons. The rubber stamp on documents MI-IM004A of the Credit Bank was not from Kwale Land Registry and it was a pure calculation of fraud and forgery and it read Kuale instead of Kwale. Analysis and Determination I have considered the pleadings, evidence on record and submissions and do find the following issues ripe for determination:- 1. Whether the 1st defendant’s father signed a charge in respect of the suit land. 2. Whether their was a default in paying the loan. 3. Whether the property was auctioned by the bank. 4. Whether the defendant’s father was given a statutory notice as required by the law Whether there was a charge. It is not in dispute that the suit property is registered in the names of the said Captain Gakweli Warraka. The title deed issued on 1st March 1994 shows that the title was issued in the names of Captain Gakweli Warraka. The charge dated 18th February 1999 to Barclays bank of Kenya has discharge on 15th December 2015. I have perused the charge received at the Kwale land Registry and do find that it is clear that the defendant’s father Abdalla Mwasame Alii Chui guaranteed Ahmed Juma Mwashifu a loan of Kshs80,000/=. This amount of money was to be paid with interest. It was agreed as per paragraph 19 of the charge that the bank in exercising its statutory power of sale could sale or concur with any other person in selling the lands comprised in the titles by public auction whether with or without a reserve price or by private contract subject to such conditions respectively the title or evidence of title or other matter as the bank may think fit within power to vary any contract for sale land to buy in at auction or to rescind any contract for sale and to resell without being answerable for any loss occurred through. The charge document provided that the bank had the power to recover possession of the property. The charge was registered on 26th November 1982 (Dated 18th November 1982). The charge was executed by Said Mwafusi as one of the chargors. The charge was also executed by Abdalla Alii Chui. The charge was attested by C. K Kanji Advocate, Mombasa. This charge was produced as an exhibit. The defendant challenged the charge document because at the top it is written Kuale District instead of Kwale District. The court finds that at the bottom of the charge document shows that the same is certified by Kwale Land Registry as a true copy of the original. I do find that the charge is valid. The issues raised by the defendant are mere typographical errors. I do find that the charge was properly registered after an application for consent of the Land Control Board was allowed and consent granted. The defendant contends that there are no minutes of the meeting of the board. This court finds that a signed consent of the board is sufficient. On exercise of the power of sale, I do not see any notice of the intention to sell the property by the bank. I only see the transfer by charge in exercise of power of sale. The consent of the land Control Board is dated 11th April 1990. The application is dated10th March 1990. However, there is no evidence that the defendant was served with the statutory notice of sale. The statutory power of sale kicks in upon Default of an obligation to pay or perform a term under the contract for more than one month. It must be said that in a loan agreement, the borrower undertakes to pay the principal money and interests in the frequency and manner described in the contract. Before exercising this power, there are three essential notices to be issued by the lender. 1. The first notice under section 90 of the Land Act-Rectification Notice This notice shall contain the following; 1. The nature and extent of the default in clear and discernible language. 2. If the default is on money, the amount owing and the repayment period which must be not less than three months after service. 3. If the default is on non-performance of a term, the rectification act and the time being not less than two months after service. 4. The consequence if the default is not rectified within the periods above. 5. The right of the borrower to seek a relief from the court against the exercise of this power. On non-compliance with the above notice, the lender shall proceed to issue the second notice below. The second notice under section 96 of the Land Act-Notice of Intention to Sell. Due to non- compliance with the first notice, the lender shall issue a notice of intention to sell to be served on the borrower. The lender shall not proceed to complete any contract for the sale of the charged land until at least forty (40) days have elapsed from the date of the service of that notice to sell. The third notice under Rule 15(d) of the Auctioneers Rule 1997- Redemption Notice. The lender will proceed to instruct an auctioneer licensed under the Auctioneers Act through an instruction letter. Upon receipt of a letter of instruction the auctioneer shall give in writing to the owner of the property a notice of not less than forty-five (45) days within which the owner may redeem the property by payment of the amount set forth in the letter of instruction. This court finds that there is no evidence that the due process of sale of the defendant’s fathers property was complied with. Moreover, the process of sale of the property is shrouded in secrecy. There is no evidence of advertisement of the sale by any reputable auctioneer. There is no evidence that the property was sold by public auction. There is no evidence that the property was valued before the alleged auction. Due to above, I do find that the sale of the property was irregular. The upshot of the above is that the plaintiff’s suit is dismissed with costs. I do give judgment to the defendant in the counter claim. I do find for the defendant that the parcel Kwale/Shimba North/Kundutsi 'B'/1062 be reverted back to Abdallah Mwamtsame Ali Chuii and a permanent injunction order be issued restraining Mildred Akoth Warrakah, her children, family members, agents, employees servants and anybody deriving interest from them from claiming, leasing, transferring, entering, trespassing, encroaching, disturbing and or interfering with the afore said parcel Kwale/Shimba North/Kundutsi 'B'/1062. Cost of the counter claim to the defendant. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-08-07 17:07:33