[2023] KEELC 21133 (KLR)

Musa (Suing as the Next Friend of Khatija Issak Musa) v Musa & 6 others (Environment & Land Case 6 of 2020) [2023] KEELC 21133 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21133 (KLR)

Republic of Kenya

In the Environment and Land Court at Narok

Environment & Land Case 6 of 2020

CG Mbogo, J

October 31, 2023

Between

Farid Issak Musa (Suing as the Next Friend of Khatija Issak Musa)

Plaintiff

and

Naim Issak Musa

1st Defendant

Parsaloi Ole Keshe

2nd Defendant

District Land Registrar, Narok

3rd Defendant

The Hon. Attorney General

4th Defendant

Ntajiri Enole Keshe

5th Defendant

Nataana Enole Keshe

6th Defendant

Daniel Ateti Keshe

7th Defendant

Judgment

1. On 11th February, 2022, the plaintiff filed an amended plaint dated 10th February, 2022 seeking judgment against the defendants jointly and severally for: -a.An order of declaration that as the widow of Essak Musa Haji (deceased), she is a bonafide beneficiary entitled to a share of the lease proceeds realized from plot no. Narok Township/58 and that the registration of the 1st defendant herein and subsequently transfer of the same into the names of the 4th,5th,6th and 7th defendants as well as Allan Seiyanduki (Minor) and Manguyo Nelson, (Minor), as the proprietor thereof is irregular and unlawful and therefore null and void ab initio.b.An order directing the 3rd defendant herein to cancel all the irregular entries on the register plot no. Narok Township/58 except and only leaving intact Essak Musa Haji (deceased) and recalling for cancellation the certificate of lease issued to the 1st defendant herein and later the 5th,6th,7th and 7th defendants herein as well as Allan Seiyanduki (minor) and Manguyo Nelson (minor).c.An order of permanent injunction prohibiting the 5th,6th and 7th defendants herein by themselves, their servants, agents and or authorized representatives jointly and severally from trespassing upon, laying claim to, taking possession of, collecting rents thereon and or in any way dealing with and or interfering in any manner with plot no. Narok Township/ 58 together with the developments thereon acting relying on a certificate of lease irregularly and fraudulently issued to them by the 3rd defendant herein.d.Costs of this suit plus interest at court rates.e.Any other order or further relief that this honourable court may deem fit to grant.

2. In the plaint, the plaintiff stated that Khadija Musa Haji is a widow as well as one the beneficiaries of Musa Haji alias Essak Musa Issa (deceased) who died in December 1998 and after his death, Karim Bux Musa Haji and Farouq Esak, were appointed administrators of the estate in Nairobi High Court PNA No. 657 of 2001. The plaintiff stated that on 17th January, 2020, the widow of the deceased received information from one of her tenants that they had received information that ownership of the land had changed and that the rent henceforth would be paid to the 2nd defendant.

3. The plaintiff further stated that the widow conducted a search and found that the 1st defendant acting in collusion with the 3rd defendant had proceeded to fraudulently issue a certificate of lease to the 1st defendant and relying on an irregularly obtained certificate of search, offered the suit land together with the developments for sale to the 2nd defendant who has moved in and laid claim of the suit property.

4. The plaintiff averred that in breach of his fiduciary duties, the 3rd defendant without exercising due diligence accepted the documents presented to him by the 1st defendant and proceeded to effect the transfer of the suit property into his name, and, thereafter the names of the 5th 6th and 7th defendants as well as the names of Allan Seiyanduki and Manguyo Nelson (minors).

5. The plaintiff pleaded particulars of fraud on the part of the 1st defendant as follows: -a.Acting in cahoots with the 3rd defendant herein to deprive the plaintiff of her entitlement to her share of the lease proceeds realized from plot no. Narok Township/58. b.Conspiring with the 3rd defendant to transfer the property known as Plot no. Narok Township/58 forming part of the estate of Essak Musa Hajji (deceased) into his names.c.Conspiring with the 3rd defendant herein to effect a transfer of Plot No. Narok Township/58 into his names using forged transfer documents.d.Deliberately failing to seek confirmation of the presented documents by insisting on production of the certificate of confirmation of grant necessary to transfer the suit piece of land into his names.

6. The plaintiff further stated that the 3rd defendant has fraudulently and unlawfully transferred the suit property into the names of the 1st defendant and thereafter into the names of the 5th,6th,7th defendants as well as the minors thereby depriving the plaintiff of her entitlement into her share of the lease proceeds realized from the suit land.

7. The plaintiff pleaded particulars of fraud on the part of the 3rd defendant.a.Failing to verify the legitimacy of the documents presented to him before transferring all that piece of land known as plot no. Narok Township/58 into the name of the 1st defendant herein and later into the names of the 4th,5th,6th,7th defendants as well as Allan Seiyanduki (minor) and Manguyo Nelson (minor).b.Failing to verify the legitimacy of the documents presented to him before transferring all that piece of land known as plot no. Narok Township/58 into the names of the 1st defendant herein and later into the names of the 4th,5th,6th and 7th defendants as well as Allan Seiyanduki and Manguyo Nelson (minors).c.Failing to verify the legitimacy of the documents presented to him before transferring all that piece of land known as plot no. Narok Township/58 into the name of the 1st defendant herein and later into the names of the 5th, 6th and 7th defendants as well as Allan Seiyanduki and Manguyo Nelson (minors).d.Failing to verify the legitimacy of the documents presented to him before transferring all that piece of land known as plot no. Narok Township/58 into the name of the 1st defendant herein and later into the names of the 5th,6th and 7th defendants as well as Allan Seiyanduki and Manguyo Nelson (minors).e.Acting in cahoots with the 1st and 2nd defendants to deprive the plaintiff of her entitlement to a share of the lease proceeds realized from plot no. Narok Township/58. f.Conspiring with the 1st and 2nd defendants herein to transfer all that piece of land known as plot no. Narok Township/58 forming part of the estate of Essak Musa Haji (deceased) into the names of the 5th,6th and 7th defendants herein as well as Allan Seiyanduki and Manguyo Nelson (minors).g.Acting in cahoots with the 1st and 2nd defendants herein in accepting forged transfer documents.h.Deliberately failing to seek confirmation of the presented documents by insisting on production of the certificate of confirmation of grant necessary to transfer the suit piece of land into the name of the 1st defendant herein and later into the names of the 5th,6th and 7th defendants as well as Allan Seiyanduki and Manguyo Nelson (minors).i.Deliberately closing his eyes to obviously presented altered transfer documents.j.Failing in his core duty of verifying the authenticity of the documents presented to his office for registration.

8. The plaintiff further stated that by virtue of being the widow of Essak Musa Haji (deceased), she is a beneficiary entitled to a share of the lease proceeds and contended that the transfer to the 1st defendant and later to the 5th, 6th, 7th defendants and the minors was fraudulent, irregular and unlawful.

9. On 7th March, 2022, the 3rd and 4th defendants filed their amended statement of defence dated 25th February, 2022. The 3rd and 4th defendants denied the contents of the amended plaint and in response to the allegations of the fraud, stated that the register for the suit land was opened on 2nd October, 1992 and registered in the names of Issak Mussa Haji, Bux Mussa Haji and Nazir Ali Mussa Haji and on 24th February, 1995 the suit property was transferred to Esak Mussa Haji and a certificate of lease was issued on the same date. The 3rd and 4th defendants further stated that on 12th March, 2019, the firm of Onduso & Company Advocates presented an application for registration by transmission in favour of Naim Issak Musa which application was supported by a transfer of personal representatives of the plaintiff and the 1st defendant. It followed thereafter that on the same date, the 1st defendant was issued with a certificate of lease.

10. The 3rd and 4th defendants further stated that on 16th January, 2020, a transfer of lease was presented to their office by the firm of Onduso & Company Advocates transferring the property to the 5th,6th and 7th defendants as well as their minors. Further, that on 14th February, 2020, an order was issued and registered against the title to the suit property and the 3rd defendant upon being served with the pleadings, together with the order, realized that the 1st defendant was not the administrator of the estate of the deceased. Also, that the registration of the 1st defendant was obtained by fraud, mistake or misrepresentation, and, on 28th April, 2021 the 3rd defendant, cancelled the registration and the subsequent certificates of lease issued to the 1st ,5th,6th,7th defendants as well as the minors.

11. The 3rd and 4th defendants stated that on 28th April, 2021, the suit property reverted back to Esak Musa Haji and admitted that the transfer to the 1st defendant was obtained by misrepresentation of facts.

12. On 15th November, 2022, the 2nd,5th, 6th and 7th defendants filed their statement of defence and counter claim dated 8th November, 2022. The 2nd,5th,6th and 7th defendants while denying the contents of the amended plaint stated that the notices were properly issued to the tenants since the property had changed hands and are not aware of and did not participate in any collusion or fraud. Further, that the lease to the suit premises was not offered to them as alleged but was acquired through the right channel and consideration paid for the same in line with the sale agreement. Also, that the plaintiff knows the truth and should be compelled to testify and not through proxy since she does not suffer from any incapacitation.

13. They further stated that the plaintiff was aware of the transaction and even benefitted from the proceeds of the sale transaction and denied breach on the part of the 3rd defendant as he acted on the documents which were presented to him and which have not been challenged.

14. The 2nd,5th,6th and 7th defendants further stated that the 2nd defendant did not use forged documents to effect transfer. They further stated that the plaintiff’s entitlement ceased to operate the time she transferred the property to the 1st defendant. Further, that they have no intention to disposing the property although they have the right as the legal and lawful owners of the suit property to deal with it as they wish. Further, that they are purchasers for value and duly registered as such and they should be allowed to enjoy the fruits of their sweat as they paid the purchase price in full.

15. The 2nd,5th,6th and 7th defendants in their claim, stated that they purchased the suit premises and paid full purchase price as agreed and hence they are innocent purchasers for value. Further, that the 5th,6th and 7th defendants are the legitimate owners and by that virtue, the 3rd defendant acted unlawfully by taking action affecting them without consultation and giving them audience. Also, that the actions of the 3rd defendant were ultra vires contrary to the provisions of law and an abuse of process which went against the rights of the 5th, 6th and 7th defendants to own land.

16. The 2nd,5th,6th and 7th defendants further stated that they entered into a valid sale agreement which has not been rescinded and the terms of the agreement fully performed by the parties. Also, that they have been subjected to unnecessary suffering and damages as they cannot utilize their property as per their will and wish. Also, that they hold the plaintiff and the 3rd defendant liable for the loss and damages suffered.

17. The 5th, 6th and 7th defendants pray that the plaintiff’s suit be dismissed with costs and further that judgment be entered against the plaintiff and 3rd defendant in the counter claim for: -a.Restitution of the 5th,6th and 7th defendants into the title number.b.General damages.c.Any other or further relief that this honourable court may deem fit to grant.d.Costs and interest.

18. On 21st November, 2022, the 3rd and 4th defendants filed their reply to defence and counter claim dated 17th November, 2022. The 3rd and 4th defendants while reiterating the contents of their amended statement of defence, stated that the 2nd,5th,6th and 7th defendants’ names cannot be restituted due to the fact that there was fraud involved whereby the 3rd defendant reverted it back to the deceased Esak Musa Haji. Further, that the transfer to the 1st defendant and subsequently to the 2nd,5th,6th and 7th defendants was obtained by misrepresentation of facts and fraud.

19. They further stated that the Land Registrar is mandated and has powers under Section 16 of the Registration of Documents Act to cancel the registration of any document if the same is obtained through fraud, mistake or misrepresentation.

20. The plaintiff’s case proceeded for hearing on 22nd November, 2022 where Farid Issak Musa (PW1) while adopting his witness statement dated 10th February, 2020 as his evidence in chief testified that he is the next friend of the plaintiff who is his mother. It was his testimony that the suit property belongs to his late father who died in December of 2018 and that letters of administration in respect of his estate were taken out in Nairobi High Court Case Number 657 of 2001. Further, that the petitioners in the succession cause were Mr Karim Musa and Tarouk Isaak Musa and that the certificate of confirmation of grant has been confirmed. PW1 relied on a copy of the death certificate marked as P. Exhibit No. 1, a copy of confirmation of certificate of grant marked P. Exhibit No.2. He further testified that prior to his late father’s death, the suit property was still under his father’s name and he had not made any disposition of the suit property. He went to say that this father had a will which they obtained when his father passed away and that the will has no date. PW1 relied on it as his evidence marked as P.Exhibit No. 3.

21. PW1 further testified that the suit property has a title deed which is a certificate of lease issued on 1st May,1971 in the name of Isaak Musa Haji and it is an original. He went on to say that it has been surrendered for cancellation. He relied on it as his evidence marked as P. Exhibit No.4. He also attached a copy of certificate of search dated 24th April, 2019 and 11th June, 2019 which shows the status of the property under the name of Issak Musa Haji (deceased). Further, that the property had a charge of Kshs. 3,000,000 to National Bank of Kenya. Further, that the copy of official search dated 20th January, 2020 shows the status of the property had changed from his father’s name to Naim Issack Musa with the date of transfer indicated as 12th March, 2019 and that the said Naim is his younger brother. It was his evidence that the sale agreement dated 31st January, 2020 is between Naim Issak Musa and Ntajiri Enole Keshe, Natena Enole Keshe, Daniel Ateti Keshe, Allen Seiyanduki (minor) and Manguyo Nelson (minor). He said that he obtained the said agreement from the tenant after they were informed that the property had changed hands. He testified that he was not aware of the sale agreement as he had the lease document. Further, that in the agreement, his mother does not appear and she was not part of the negotiations and nor was she a beneficiary of the proceeds of sale. PW1 relied on the sale agreement marked as P.Exhibit No. 7, the certificate of official search dated 20th January, 2020 marked as P.Exhibit No. 6 and the certificate of official search dated 11th June, 2019 marked as P.Exhibit No. 5.

22. PW1 further referred to the notice of change of ownership dated 31st July, 2020 addressed to Senende wholesalers issued by Sonjomo Auctioneers for kshs.105,000/- being rent payment for February, 2020 for plot No. 58. He testified that the said notice was confirming who received the rent. PW1 relied on receipts marked as P.Exhibit No. 9(a) and (b).

23. On cross examination, PW1 testified that the plaintiff’s name is not in the letter of probate and that as per certificate of urgency dated 10th February, 2020, the executors transferred the property to the 1st defendant and the plaintiff and that there is no evidence by the executors denying having ever transferred the property to the 1st defendant and his mother. He agreed that there is nothing from the document examiner to show that his mother did not thump print the document. It was his evidence that they offered to pay Kshs. 29,500,000/ to the family of Ole Keshe because the property was not for sale. Further that the 2nd defendant was claiming Kshs. 40,000,000/- but they have no evidence thus denying that the 1st defendant received kshs. 40,000,000/-. PW 1 further testified that he did not have evidence showing that his mother denied receiving any money. Further, according to him, the defendants did not consult his family and, whereas the suit property was registered in the name of the 1st defendant at the time of the sale, he would not want the defendants to lose their money.

24. On further cross examination, PW1 testified that the 1st defendant’s account was deposited with Kshs. 29,473,500/ as per annexture FM1 and Kshs. 9,000,000/- being the receipt of payment dated 17th January, 2020 from the firm of Ochengo Onduso. Further, that there remained a balance of kshs. 1,700,000. It was his testimony that he reported the issue of fraud to the police station and the CID and he was given an OB number. He agreed that the Land Registrar was never charged. According to him, he was not aware that the firm of Onduso & Company Advocate. He also said that he assists his mother due to her old age and he would have been with her if she went to participate in the land transaction. He added that he was not aware that the Land Registrar reverted the land back to his father.

25. On re-examination, PW1 testified that his mother did not have any title to transfer to his brother and that no evidence has been shown to prove that the deposit paid to Mr. Onduso was paid to his brother’s account and he only offered to pay under Islamic Law which requires that the family to pay a debt owed by a deceased relative which is Kshs. 29,000,000/-.

26. On 27th February, 2023, Karim Bux Mussa Haji Issa Moslem (PW2), while adopting his witness statement dated 19th September, 2022 as his evidence in chief, testified that the 1st defendant is his elder brother who is now deceased. He testified that he is an administrator of the estate of Issak Mussa Haji, the owner of the suit property and that he has always had in his possession the original certificate of lease issued on 14th February, 1995. Further, that he did not sign any agreement or transfer of the suit property to a third party as an administrator of the estate. He testified that Khadija Issak is the wife of his late brother and she never informed him that she had sold the property.

27. On cross examination, PW2 testified that at one time the certificate of lease was charged to the bank and it is yet to be discharged. He agreed that the original tittle document is supposed to be with the bank and that the title document was released when the loanee paid the loan. As per P. Exhibit No.4 , PW2 agreed that the certificate of lease does not show that it was charged to the bank. He further admitted that he signed a transfer so that the property could be owned by Khadija and the 1st defendant. He testified that the confirmation of the grant was done on 6th May, 2002 and that the plaintiff and his children still benefit from the property as well as others. It was his testimony that the 1st defendant returned the original title to him but he does not know when the original title was released by the bank. Also, that he did not know that the suit property was in the name of the 1st defendant at the time of the alleged sale.

28. PW2 further testified that the transfer of the suit property was signed by him in favour of the 1st defendant and Khadija. He agreed that their family was intent on refunding whatever money the purchaser had paid to the 1st defendant which is kshs. 29,500,000/-. According to him, he does not remember if from the documents produced, that there was a balance of purchase price to be paid. He said that the purchaser could not have paid the loan since he had the original title document.

29. On further cross examination, PW2 testified that his name is Karim Bux Mussa and he is the only remaining administrator. He admitted that Faruq Issak told him that the suit property had been sold but he did not carry out a search as Faruq had it done. He further testified that the transfer document was not registered in the Lands Office and it was not signed by the Land Registrar. On being shown document 1 in the list of documents by the 3rd and 4th defendants, PW2 testified that the title was charged to National Bank of Kenya to secure Kshs. 3,000,000/- on 31st March, 1998 and on 12th March, 2019, the property was discharged. According to him, the 1st defendant received kshs. 29,500,000/- and he is not aware of the rectification that made the land to revert to Issak Mussa (deceased). Also, that he was not part of any meeting between Khadija and the 3rd to 7th defendants.

30. On re-examination, PW2 testified that he was not shown any evidence of the loan amount by any one and the property never changed ownership. Further, that they agreed to refund whatever the purchaser had been paid since in their religion, it is mandatory to honour debts incurred by a deceased person. Also, that they did not make any commitment to pay but an offer to pay.

31. The defendants case proceeded for hearing on 27th February, 2023. Parsaloi Ole Keshe (DW1) while adopting his witness statement dated 8th November, 2022 as his evidence in chief testified that when they purchased the suit property, it was registered in the name of the 1st defendant and he paid the latter kshs. 40,000,000/-. Further, that during the lifetime of the 1st defendant, the 1st defendant did not deny payment of the purchase price. Further, that the plaintiffs proposed to refund him kshs. 30,000,000/- but he declined since he had spent kshs. 40,000,000/-. Further, that the plaintiff’s committed themselves in writing to refund kshs. 30,000,000/- as per the consent filed in court. He produced documents in is list of documents as D.Exhibit Nos. 1 to 3.

32. On cross-examination, DW1 testified that Khadija was present in Onduso’s office when they negotiated over the sale but he did not discuss with Khadija over the sale. He testified that he paid kshs. 29,000,000/- to the 1st defendant who also told him to pay Mr Onduso the balance. He agreed that he was present when the agreement was signed and that he paid the 1st defendant through the account of Mr Onduso but he could not remember the amount that he paid. According to him, the 1st defendant collected kshs.1,500,000/- from Double M. Butchery but he did not sign to acknowledge kshs. 1,500,000. Further, that he did not have evidence to show that he deposited kshs. 7,000,000/- into Mr Onduso’s bank account and does not know if Mr Onduso released kshs. 7,000,000/- to the 1st defendant.

33. DW1 further testified that on 16th January, 2020, the 1st defendant received the purchase price in cash and the rest was deposited into his bank account. He agreed that he signed the agreement as a witness because he was the one who was sponsoring the purchase. Further, that Mr Onduso was the one who brought the title deed in the name of his family members to his home. Also, that he would not be surprised to learn that the agreement and the title deed were issued on the same date. Also, that he was informed by the County Government that the transaction was okay. Further, that the 1st defendant paid the necessary transfer fees to the government but he does not know if the transfer fees was from the kshs. 40,000,000/- purchase price. Also, that he did not pay Khadija any money.

34. On further cross examination, DW2 testified that the family of the 1st defendant was the one who approached him with an offer of sale of the suit property and that the 1st defendant himself told him that he wanted to sell the suit property in order to raise funds to carry out some other business. Further, that he had no interest in the suit property but he went to meet the 1st defendant because his children decided to purchase the property. Further, that they agreed on a purchase price and he gave the 1st defendant kshs. 29,500,000/- and Mr. Onduso kshs. 10,500,000/-. He agreed that the title deed was issued in the names of his children. He testified that the Land Registrar did not write to him to hand over the title document and neither did he conspire with the 1st defendant to remove Khadija’s name from the ownership of the suit property.

35. On re-examination, DW1 testified that Mr Onduso was the one who was involved in seeking consent from the County Government and that the 1st defendant was the one who asked him to pay Mr Onduso kshs. 10,500,000/-.

36. James Ochengo Onduso (DW2) testified that he was the one who drafted and executed the sale agreement dated 16th January, 2020 and, transfer pertaining to the suit property and, presented the documents to the Land Office for transfer. He testified that the terms of the agreement were honoured and they included the payment of kshs. 40,000,000/-. It was his testimony that kshs. 29,500,000/- was deposited and kshs. 10,500,000/- was paid in cash to make a total of kshs. 40,000,000/-. According to him, the 1st defendant indicated that he needed cash to buy a tipper lorry which he actually bought and whereas he acted for both parties, the vendor never complained of nonpayment of the purchase price at any time.

37. Further, that he signed the agreement and he retained one copy while the other 2 copies were given to the parties. It was his testimony that the parties to the agreement have not contested it and having interacted to a large extent with the 1st defendant and his mother, the mother wanted to know how the transaction was and he explained to her. He went on to say that she wanted a share of the purchase price and he asked the 1st defendant to give her.

38. On cross examination, DW2 testified that the certificate of lease was in the name of the 1st defendant and he could not tell how the property was transferred from the name of the deceased father to the 1st defendant as he did not append his signature to the transfer instruments from the 1st defendant’s deceased father to the 1st defendant. He further agreed that all the payments were made on the same day and he counted kshs. 10,500,000 in his office and confirmed the same. Further, that he sought the approval to transfer the property before the sale agreement and there was a letter of no objection issued by the Town Council. He testified that he hasn’t seen the letter of no objection in court but they had requested for the necessary approvals and he does not know if they were issued. He also could not remember if the documents he presented at the Lands’ Office were documented in the presentation book. Further, he could not tell how much was paid as stamp duty and that he did not know how much ought to have been paid as stamp duty for a property of kshs. 40,000,000/-. According to him, the transfer forms were made on the same day the agreement was made and the transfer was made before the payment.

39. DW2 further testified that Mr. Keshe (DW1) picked the certificate of lease from the Lands Office. He testified that the proceeds of purchase were transferred from Keshe’s account and that Mr Keshe’s interest was to ensure that the transfer was done. Further, that Mr. Keshe’s interest was that of a trustee for the purchasers and that he made payment on behalf of the purchasers but the money belonged to Parsaloi. According to him, the 1st defendant was the one wo initiated the process as he offered the sale to the 2nd defendant. Further, he testified that he was not aware that RL 7 and 9 were the documents lodged at the lands office and he agreed that he had the original certificate of lease as he prepared the sale agreement. He admitted that he was paid his fees by both parties but he does not know if there were any commissions agents in between and he could not be able to tell if any commission agent was paid.

40. DW2 further testified that the 1st defendant’s mother went to him and informed him that she wanted to be paid a token. Further, that she was not present at the time of negotiation. He pointed out that she went to his office the day after the sale agreement had been signed. Further, that he could not tell if she was paid. According to him, the parties went to his office more than once but he could not recall the number of times the 1st defendant’s mother went alone. Further, that the 1st defendant’s mother is not mentioned in the agreement as being present and if she was present, he would have included her as a witness in the agreement. Further, that the 1st defendant never complained that he was never paid. Further, that the 1st defendant insisted on retaining Kshs. 10,500,000/- because he wanted to buy a tipper. Further, that the transaction was done in the bank and the CCTV footage of the bank will prove that Kshs. 10,500,000/- was paid inside the bank. He said that the latter was withdrawn from DTB Bank and Mr Keshe (DW1) said that there was payment of kshs. 1,500,000/- at Double M. Butchery but he does not know for what purpose the money was meant for.

41. On further cross examination, DW2 testified that he cannot remember the legal fees that he was paid and added that the receipt dated 17th January, 2020 was not for his legal fees but was for part of kshs. 10,500,000/- which was for the purchase price and that he forwarded the same to the 1st defendant. While producing D. Exhibit No. 4, DW2 testified that he gave the 1st defendant cash but has no proof that he received the money. Further, that the balance of kshs. 1,900,000/- was paid out later on but he could not remember when it was paid. He admitted that he has no proof of payment of the balance. He further testified that the due diligence that he conducted was a search before the transaction dated 11th June, 2019 and the proprietors name is Issak Mussa Haji. Further, that the search that he conducted on 20th January, 2020 shows the proprietor as Naim Issak that was 4 days after the title was issued.

42. On re-examination, DW2 testified that the parties can agree between themselves on who is to pay stamp duty and he does not know about the party who paid the stamp duty. He agreed that he had the original title in the name of the 1st defendant which was later taken to the Lands Office. He added that when the 1st defendant signed the sale agreement, he acknowledged payment of kshs. 40,000,000/- and his fees was not part of the kshs. 40,000,000/-.

43. DW1 was recalled on the same date and he testified that the address shown in the letter dated 7th April, 2021 is not his address and that he has never used the same. It was also his testimony that he did not receive the letter.

44. On further cross examination, DW1 testified that his address is 275 Narok and that he has the title deed for the suit property but that he did not bother to check the address that he gave during the processing of the title deed.

45. On further cross examination, DW1 testified that the letter dated 7th April, 2021 does not bear his name and it was not addressed to him. Further, that the title deed was not in his name but in the names of the addressees in the letter.

46. Daniel Ateti Keshe (DW3) while adopting his witness statement dated 8th November, 2022 as his evidence in chief, testified that he has never received the letter dated 7th April, 2021 and that he only saw it in court the previous day. He went on to say that as per the letter dated 27th February, 2023, he does not know the postal address indicated in the letter as Box 19-20500, Narok as his address is Box 275 Narok.

47. On cross-examination, DW3 testified that the title deed was issued on 16th January, 2020 and that the agreement of sale is of similar date and was signed in the office of Mr. Onduso. He testified that his father was the one who went to collect the title deed when it was issued. Further, that Kshs. 40,000,000/- was paid in Mr Onduso’s office and it was by way of bank deposit. It was his evidence that he witnessed that Kshs. 29,500,000/- was deposited in the bank and kshs. 10,500,000/- in cash was paid to Mr Onduso who issued them with a receipt to acknowledge receipt of the money. Further, that Mr. Onduso was the one who counted the money to confirm that it was kshs. 10,500,000/-. He testified that the source of kshs. 10,500,000/- was from sale of goats, sheep and cows which livestock were sold to Double M Restaurant. Further, that he was not involved in the sale of the livestock but that Double M Butchery gave them some money which they added to what they had. Further, that they deposited some of the money that they got from Double M to the Bank and the amount they took it to Mr Onduso’s office. It was his testimony that he does not know the amount of money that was deposited in the bank and that the amount which they took to Mr Onduso’s office. Further, that they were 4 people in the office of Mr Onduso who included the 2nd defendant, himself, the 1st defendant and Mr Onduso. He added that he did not see Mr Onduso hand over the money to the 1st defendant as they left Mr Onduso in the company of the 1st defendant. He testified that they visited Mr Onduso’s office more than once and he saw the 1st defendant’s mother once which was a day after payment of the purchase price in Mr Onduso’s office. Further, that he went with his father to Mr Onduso’s office to confirm that all was okey. While being shown the receipt dated 17th January, 2020, DW3 testified that he did not know why they paid kshs. 9,000,000/- a day after collecting the title deed and he could not remember if Mr Onduso issued them with a receipt on the day they gave him money. He further said that the receipt showed that there was a balance of kshs.1,900,000/- which he knows was paid out but he does not know when it was paid out. He disagreed that the balance was not paid because no one complained of non-payment.

48. On further cross examination, DW3 testified that they were 4 of them in Mr Onduso’s office when they signed the agreement i.e. his mother, father, Natania Enole Keshe, Ntajiri Enole Keshe and himself signed the agreement which does not show their postal address. Further, that the letter dated 7th April, 2021 has his name and the letter is requesting them to surrender the title document for the suit property. Also, that he did not get the letter from the Land Registrar. Further, he testified that his father was the one who was approached with an offer for the sale of the property but he was not with his father when the latter was approached. It was his testimony that the 1st defendant was paid kshs. 29,500,000/ and the balance of kshs. 10,500,000/- was paid to Mr Onduso making it a total of kshs. 40,000,000/-. He said that he did not see Mr Onduso remit the money to the 1st defendant. He testified that the agreement shows that the 1st defendant received kshs. 40,000,000/- and the bank statement from the 1st defendant dated 17th January, 2020 shows that kshs. 29,473,500/- was deposited in the bank. Further, that the Land Registrar did not take part in the sale agreement and he does not know if the Land Registrar carried out a rectification of the title.

49. On re-examination, DW3 testified that the agreement shows that the purchase price was paid to the 1st defendant who acknowledged payment and that he did not participate in any fraudulent activity.

50. On 25th May, 2023, Tom Chepkwesi (DW4), while adopting his witness statement dated 14th September, 2022 as his evidence in chief, testified that the register for the suit property was opened on 10th June, 1971 in the name of the County Council of Narok and that on the 9th May, 1973, the County Council of Narok leased the parcel of land to Issack Mussa Haji, Karim Box Mussa Haji and Nasir Ali Mussa Haji for 33 years beginning 1st May, 1971. That before the expiry of the lease, there was a charge dated 10th May, 1974 to Barclays Bank International Ltd and from the record, the charge was discharged on 24th February, 1995. He testified that upon the lapse of the lease, another lease was issued and registered on 2nd October, 1992 in favour of Issak Mussa Haji, Karim Bux Mussa Haji and Nassir Ali Mussa Haji. Further, that a transfer was registered on 24th February, 1995 in favour of Essak Mussa Haji and a certificate of lease was issued to him on the same date. Further, that on 31st March, 1998, a charge in favour of National Bank of Kenya Ltd was registered to secure kshs. 3,000,000 which charge was discharged on 12th March, 2019.

51. DW4 further testified that on 12th March, 2019, the firm of Onduso and Company Advocates presented forms which include RL 19 and RL 7 which are forms registered during transmission. He identified RL 19 as the application to register as proprietor by transmission and RL 7 as the transfer by personal representative of a person entitled under a will or intestacy. According to him, the documents were properly drawn as required and certified by an advocate, and were registered and a certificate of lease issued to the 1st defendant on 12th March, 2019. According to him, it is not fatal that the entry of the discharge is not reflected on the title. It was his testimony that on the green card, the entry of discharge must be entered but, on the title, it may not be entered if the chargor retains the title. He further testified that he issued a notice to the 2nd, 5th,6th and 7th defendants dated 7th April, 2021 to surrender the title and, that it is not true that the 3rd defendant colluded with the plaintiff to revert the title to Issak Mussa Haji. He testified that upon calling for the title, the Land Registrar exercised his authority under Section 79 of the Land Registration Act and Section 16 of the Registration of Documents Act to cancel the title upon learning of fraud and misrepresentation.

52. DW4 produced D. Exhibit No. 5 to 15 respectively in his evidence and testified that the entire process leading to the acquisition of the parcel of land by the 2nd, 4th,5th,6th and 7th defendants was fraudulent.

53. On cross examination, DW4 testified that as per the forms RL 19 and 7, the administrator is the 1st defendant and he is also the beneficiary. That according to him, he would call for the grant to confirm that the person presenting the documents is the administrator and if any grant was presented, the 1st defendant should have been the administrator. It was also his testimony that he did not know if the original certificate of lease in the name of Issack Mussa was surrendered as it ought to have been surrendered unless it had been gazette as lost. According to him, that entry is registered. He agreed that RL 7 is the actual transfer document in succession and it captures the same information as in RL 19. Further, that according to RL 7, the deceased person is Essak Mussa Haji and therefore what is in paragraph 6 of his statement is not correct. He further testified that the transfer to the 2nd, 5th,6th and 7th defendants and 2 minors was done on 16th January, 2020 and the said transfer required the consent from the Land Administration Office at the National and County Level. Further, that in this case, he has not seen the documents in question and does not know if the two (2) documents i.e. certificate of no objection and consent to transfer were presented. It was his testimony that if the two documents are not there, the transfer is not regular. Further, he testified that the transfer document does not bear any form of assessment of stamp duty paid and he does not know if any stamp duty was paid. He also said that he does not know if clearance certificate for rates was ever issued as it was necessary to have the clearance certificate as one of the documents in support of the transfer. He admitted that his office is supposed to conduct a visit to the suit property before transfer and he does not know if a visit was ever done.

54. According to DW4 he realized that there was fraud and blames the people benefitting. He testified that the irregularities were not detected at the time of registration and he does not know if this is a case of a purchaser for value without notice. He further agreed that the instruments were presented by an advocate and he does not have a copy of the presentation book and hence he cannot tell what documents were presented and the fees collected. He also said that he could not be able to tell the person who picked the certificate of lease. Further, that on surrender of title, he issued a notice of surrender with a copy to CCIO Narok who was undertaking an investigation. He pointed out he did not know if any investigation was carried out. He testified that he was not called to record a statement and that there was no collusion on his part and the plaintiff.

55. On further cross examination, DW4 testified that he has served as a Land Registrar for 25 years with enormous experience and he was aware of the issues and that the cancelation was done as a result of fraud. According to him, fraud is one obtaining a good or service through misrepresentation or lying. He agreed that certain parameters ought to have been ascertained before cancellation and the parameters that necessitated the registration was discovery of the presence of the head title with the complainant. He admitted that he does not know how the certificate of lease issued to the 1st defendant was cancelled. He agreed that the transfers by transmission presented by Onduso and Company Advocates were properly presented and that the forms were duly executed and certified as required in law. Further, that there are instances where an administrator can also be a beneficiary. He further agreed that a title was issued to the 1st defendant on the basis of RL 19 and RL 7. Further, that his office issued the title to the 1st defendant on 12th March, 2019 and that a title in the hands of a proprietor means that he possesses the land under Section 30 of the Act. He further agreed that the defendants proceeded to purchase the property from Naim Issak Mussa and he was not aware if a search was done. When he was referred to the plaintiff’s list of document dated 20th January, 2020, DW 4 agreed that the registered owner as per the search is the 1st defendant. On being shown the agreement for sale, DW4 testified that the stamp duty would have been kshs. 800,000/- which figure is determined by the Land Registrar and he does not know if there was assessment for stamp duty. It was his testimony that he did not know if there is a procedure that was supposed to be followed by the purchasers which they failed to follow and, that except for the summon of the Land Registrar to surrender the title, he did not have anything to connect the said purchasers with the fraud.

56. He further testified that he did not cancel the title courtesy of the court order and that the court order did not invite him to cancel the title deed. He testified that he issued a title to the 1st defendant on 12th March, 2019 which date is on the green card. He agreed that the dated on the green card should match the date on the certificate of lease but in this case, the certificate of lease issued to the 1st defendant is dated 19th March, 2019. The certificate of lease and the green card are similar. Further, that the certificate of lease was issued to the 2nd, 4th,5th,6th and 7th defendants on 16th January, 2020 which shows that there was quite a bit of time between the 2 entries. He agreed that he did not have nexus to connect the 1st defendant and the 2nd defendant to the 4th to 7th defendants with fraud and admitted that his office did not carry any audit to determine the correctness of the record. He further admitted to have issued a notice to surrender the title under Section 79 (2) of the Land Registration Act but he was not sure if he effected personal service upon them.

57. On re-examination, DW4 testified that whatever he did was a rectification of the register and that a cancellation of a title is done with an order of the court. Further, that the information presented to him at the point of transfer seemed to be proper. He testified that the notice of 7th April, 2021 was sent via email and it was delivered. Further, that he was not the complainant in order for him to make a follow up with the DCI as he was not adversely mentioned. He agreed that he owes the citizenry a duty of care which is why he rectified the register to indicate the correct owner for the reason that the irregularities raised do not make the transfer proper. He testified that the nexus between the 1st defendant, 2nd defendant and the 5th to 7th defendants is a sale and purchase and the said defendants benefited from the irregularities. Also, that he was not aware of the fraud before the filing of this sit.

58. On 22nd June, 2023, the plaintiff filed his written submissions dated 20th June, 2023. He raised seven issues for determination as follows: -i.Did the plaintiff have a beneficial interest in plot no. Narok Township/58 previously registered in the names of her deceased husband?ii.Did the 1st defendant herein have a good title to pass to the 4th,5th,6th and 7th defendants herein?iii.Was the transfer of all that piece of land comprised in title plot no. Narok Township/58 into the names of the 4th,5th,6th and 7th defendants unlawful, irregular, fraudulent and void and if so, the effect thereof?iv.Did the 2nd,4th,5th,6th and 7th defendants execute due diligence before purchasing all that piece of land comprised in title plot no. Narok Township/58?v.Was there any fraud in the manner in which plot no. Narok Township/58 was sold and transferred into the names of the 4th,5th,6th and 7th defendants herein?vi.Does the plaintiff have a sustainable cause of action against the 1st,2nd,3rd,4th,5th,6th and 7th defendants?vii.Is the plaintiff entitled to the prayers sought herein?

59. On the above issues, the plaintiff submitted that the transfer of the suit property to the 5th,6th and 7th defendants were undertaken illegally, fraudulently and unprocedurally and that the said fraudulent transfers were perpetrated by the 1st,2nd and 3rd defendants jointly and severally. Further, that it is trite law that a purchaser of immovable property acquires title no better than that of the transferor and with the 1st defendant’s title being defective, it automatically follows that the title acquired therefrom by the 5th,6th and 7th defendants was also defective. The plaintiff relied on the cases of Richard Gitau Muguno versus Benson Macharia Wandungo & 2 Others [2017] eKLR, Esther Ndegi Njiru & Another versus Leonard Gatei [2014] eKLR, Antony Ted Andrew Hoarea versus May Muthoni Wanjohi [2018] eKLR, Martha Wangui Thurura & Another versus Henry Gitahi Thurura & 3 Others [2021] eKLR and Marjorie Waithera Wambugu & Another versus Grace Wairimu Gachie & 4 Others [2018] eKLR.

60. The plaintiff urged this court to exercise its powers provided under Section 80 of the Land Registration Act and cancel the certificate of lease issued in favour of the 2nd,4th,5th, 6th and 7th defendants.

61. On 13th July, 2023, the 2nd,5th,6th and 7th defendants filed their written submissions dated 4th July, 2023 and. They raised the following issues for determination: -i.Whether the plaintiff-Farid Issak Musa had the locus standi to institute this suit.ii.Whether Naim Issak Musa, the 1st defendant obtained the suit land through fraud and misrepresentation.iii.Whether the 3rd and 4th defendants owed a duty of care to the 2nd,5th,6th and 7th defendants.iv.Whether the 5th,6th and 7th defendants had paid stamp duty as per the requirements of the Stamp Duty Act.v.Whether the 3rd and 4th defendants breached the doctrine of legitimate expectation owed to the 2nd,5th,6th and 7th defendants.vi.Whether the 2nd,5th, 6th and 7th defendants were issued with a notice of cancellation by the Land Registrar.vii.Whether a certificate of lease is a conclusive evidence of proprietorship.viii.Whether the 2nd,5th,6th and 7th defendants were victims of fraud.ix.Whether the plaintiff is entitled to the orders sought.

62. On the first issue, the 2nd,5th,6th and 7th defendants submitted that the plaintiff lacks locus standi by virtue of Order 1 Rule 1, Order 9 Rules 1 and 2 (a) and Order 32 of the Civil Procedure Rules. On the second issue, it was submitted that the 1st defendant was not fraudulent in the transmission of the land process in his favour as he followed due process and presented valid documents to the Land Registrar. Reliance was placed in the case of Vijay Morjaria versus Nansingh Madhusingh Darbar & Another [2000] eKLR.

63. On the third issue, it was submitted that the Land Registrar failed in his mandate and thus breaching the duty of care owed to the 5th,6th and 7th defendants and wondered how long or soon would the Land Registrar realise the alleged fraud by the 1st defendant. On the 4th issue, the 2nd,5th,6th and 7th defendants submitted that it is the duty of the Land Registrar to access stamp duty and determine how much is to be paid in a particular land transaction. While relying on the case of Moxam Limited versus Heineken East Africa Import Company Limited & Another [2019] eKLR, the 2nd,5th,6th and 7th defendants submitted that it is not in order for that a certificate of lease was issued to the 5th,6th and 7th defendants yet stamp duty was paid.

64. On the fifth issue, it was submitted that the 3rd an 4th defendants breached the legitimate expectation that they owed to them and being public bodies, they are to be held accountable in lieu of the doctrine of legitimate expectation. They relied on the case of Kenya Revenue Authority versus Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31. On the sixth issue, the 2nd,5th,6th and 7th defendants submitted that following an application under a certificate of urgency dated 10th February, 2023, this court issued restraining and prohibitory orders against the 2nd defendant. Consequently, that on the 28th April, 2021 the Land Registrar rectified the title to the suit property by cancelling and expunging the certificate of lease issued to the 1st defendant and that of the 2nd,5th,6th and 7th defendants. They submitted that they were not issued with the notice of alteration pursuant to Section 79 (2) of the Land Registration Act.

65. On the seventh issue, the 2nd,5th,6th and 7th defendants submitted that the certificate of lease was issued to the 1st defendant more than a year before the purchase was made and, the 2nd,5th,6th to 7th defendants upon conducting a search, were convinced that the 1st defendant as the lawful owner and legal proprietor. They relied on the case of Dr. N.K. Ng’ok versus Justice Ole Keiwua & 2 Others C.A No. 60 of 1997. On the eighth and ninth issues, the 5th,6th and 7th defendants and the two minors were innocent purchasers for value. Further, that the 5th,6th and 7th defendants have demonstrated that they were not aware nor were they a party to the alleged fraud. As such, they submitted that the remedies sought by the plaintiff have already been overtaken by events on account of the plaintiffs and the 3rd defendant’s action to cancel the certificates of lease and revert the land back to the original deceased owner.

66. On the 27th July, 2023 the 3rd and 4th defendants filed their written submissions dated 26th July, 2023 where they raised four issues for determination as listed below: -a.Whether the 2nd,5th,6th and 7th defendants were innocent purchasers for value.b.Whether the actions by the land registrar were lawful.c.Whether the orders sought by the plaintiff should be granted.d.Whether the orders sought by the 2nd,5th,6th and 7th defendants in their counter claim should be granted.

67. On the first issue, 3rd and 4th defendants submitted that the 1st defendant did not have a good and indefeasible title to transfer the same to the 2nd,5th,6th and 7th defendants. They went on to submit that the 2nd,5th,6th and 7th defendants did not conduct enough due diligence to establish that the 1st defendant did not have a valid title to the suit property. The 3rd and 4th defendants relied on the case of Dina Management Limited versus County Government of Mombasa & 5 Others [2021] eKLR.

68. On the second issue, the 3rd and 4th defendants submitted that the actions by the Land Registrar were lawful and within his mandate. Reliance was placed in the cases of Michael Otieno Oloo versus Homabay Land Registrar & 2 Others [2022] eKLR and James Njambi versus James Kamau Waweru [20220] eKLR.

69. On the third issue, the 3rd and 4th defendants submitted that upon realization of fraud and misrepresentation, he rectified the register and reinstated the original owner, Essak Musa Haji, and having acknowledged that there were irregularities, the 3rd defendant went ahead and regularized the said irregularities.

70. On the fourth issue, the 3rd and 4th defendants submitted that the 1st defendant’s family was willing to refund the 2nd,5th,6th and 7th defendants the sum of Kshs. 30,000,000/- but they refused. Further, that the 2nd,5th,6th and 7th defendants are not entitled to payment of general damages as neither the plaintiff nor the 3rd defendant benefitted from the money that was given to the 1st defendant.

71. I have carefully analysed and considered the pleadings, evidence on record, the written submissions filed and the authorities cited and the issues for determination are as listed: -i.Whether the allegations of fraud was proved.ii.Whether the plaintiff and the 2nd,5th,6th and 7th defendants are entitled to the prayers sought in the plaint and counter claim respectively.iii.Who is to bear costs.

72. Fraud is a serious matter which must be proved to the required standard. In R.G Patel versus Lalji Makanji 1957 E.A 314, the Court of Appeal stated as follows:“Allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”.

73. The allegations of fraud was proved in this case to the extent that the 3rd defendant admitted that the 1st defendant did not have a good and indefeasible title and upon realization of fraud and misrepresentation, rectified the title to reflect the deceased as the original owner of the suit property. The 3rd defendant agreed that it was not possible for the 1st defendant to pass an indefeasible title to the 2nd,5th,6th and 7th defendants However, no one took blame of the fraud and from the testimonies of the witnesses in court, each party blamed the other. PW1 and PW2 testified that they were not aware of any transaction of sale of the suit property as they had in their possession the original certificate of lease. They agreed that the suit property was not available for sale and they were willing to refund the 2nd,5th,6th and 7th defendants ‘whatever’ money was paid to the 1st defendant as purchase price. Unfortunately, the 1st defendant having passed on, it is pretty obvious that he could not be available to shed light on what transpired. However, there being an acknowledgement of fraud and misrepresentation, such act could only have been committed by any party. In this case, DW2 mentioned that the 1st defendant’s mother visited his office a day after the sale agreement was entered into seeking a token of the amount, who according to her, the 1st defendant seemed not to have paid/or advanced her any money.

74. In my view, the 1st defendant may have committed fraud, first in acquiring the title to himself as was admitted by the 3rd defendant and secondly, with full knowledge of the fact that his title was not a good title, proceeded to enter into a sale agreement for the sale and transfer of the suit property to the 5th,6th and 7th defendants.

75. DW2 admitted to have acted for both parties and, the 2nd,5th,6th and 7th defendants being satisfied with the official search conducted, proceeded to enter into a sale agreement. On this, I cannot trace the direct involvement of the 2nd,5th,6th and 7th defendants in the fraudulent activity. Interestingly, the plaintiff sought to file the instant suit on behalf of his mother on the grounds that she is aged. Whereas this fact was not disputed, I am not certain whether she is of unsound mind or bedridden to say that she could not be a witness to this case. I read some mischief in her deliberate exclusion from the proceedings for the reason that I find that she would have been a key witness as she is said to be a beneficiary of the estate of her deceased husband.

76. On the second issue, the 3rd and 4th defendants in their reply to defence and counter claim stated that upon being served with the pleadings and the order, the 3rd defendant realized that the 1st defendant was not the administrator of the estate of Essak Musa Haji (deceased) and, therefore the registration of the 1st defendant was obtained by fraud, mistake and misrepresentation as well as the subsequent transfer to the 2nd,5th,6th and 7th defendants. Looking at the amended plaint dated 10th February, 2022, and the orders sought, and bearing in mind the rectification of the register to include the deceased as the registered owner of the suit property, I am of the view that the orders sought in the plaint have been overtaken by events and cannot issue at this stage.

77. With regard to the counter claim, the 3rd and 4th defendants in their amended statement of defence stated that upon rectification of the title pursuant to Section 79 (2) of the Land Registration Act and Section 16 of the Registration of Documents Act, the 3rd defendant cancelled the registration of the 1st defendant and the certificate of lease issued to the 1st defendant as well as the 5th,6th and 7th defendants together with Allan Seiyanduki and Manguyo Nelson (minors), the suit property reverted back to the deceased who is the registered owner. The drastic action taken by the 3rd defendant, which they claimed to have been provoked by the pleadings and the orders served upon them, was in my view, unfair as the 2nd,5th,6th and 7th defendants were not properly served and neither were they given a chance to support their claim of ownership of the suit property. The 3rd defendant acted unprocedurally in carrying out the rectification.

78. Bearing in mind that the plaintiff’s witnesses expressed their intention to pay back the monies received by the 1st defendant and having found that fraud was committed by the 1st defendant, the 2nd,5th,6th and 7th defendants are entitled to the refund of the purchase price paid. On general damages, the 2nd,5th,6th and 7th defendants did not substantiate the damages suffered to enable this court award damages. Further it was not possible to claim damages from a property in which it was established that the 1st defendant’s ownership was obtained by fraud and in that case, the award of general damages is not available to them.

79. There is no denial of the fact that the 1st defendant who is now deceased was paid kshs. 29,473,500/- through his bank account by the 2nd 5th,6th and 7th defendants. There is also no doubt that DW2 was paid kshs. 10,500,000/- out of which he claims to have paid to the 1st defendant kshs. 9,000,000/-. The above sum will add up to kshs. 38,473,500/-. In my judgement therefore, I am satisfied that the 1st defendant was paid the sum of kshs. 38,473,500 which sum of money the plaintiff should refund to the 2nd, 5th, 6th and 7th defendants.

80. Arising from the above, the amended plaint dated 10th February, 2022 is dismissed. The counter claim dated 8th November, 2022 partially succeeds in the following terms; -i.That by a copy of the bank statement dated 17th February, 2020 and receipt dated 17th January, 2020, the 2nd,5th,6th and 7th defendants are entitled to a sum of Kshs. 38,473,500 payable to them by the plaintiff within 90 days from the date hereof in default of which the said defendants will be at liberty to execute.ii.Each party to bear its own costs.It is so ordered.

DATED, SIGNED & DELIVERED VIA EMAIL THIS31ST DAY OF OCTOBER, 2023. HON. MBOGO C.G.JUDGE31/10/2023In the presence of:CA:Meyoki