https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/500

Lamu MCELC/E003/2025 judgment REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT LAMU COUNTY COURT NAME: LAMU MAGISTRATE COURT CASE NUMBER: MCELRC CAUSE NO. MCELC/ E 003 OF 2026 MWAISHA BAISHE SHEE MOHAMED.............................................................PLAINTIFF VERSUS MOHAMED AWADH SALIM.................................................................................. DEFENDANT JUDGMENT 1. This suit commenced by plaint dated 6/2/2025 in which the plaintiff seeks for prayers against the defendant as per the plaint in the following terms: a. An order of this Honorable Court that she is the legal owner of the land held under the title LAMU/MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321. b. An Order of this Honorable Court that the title LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 issued to the Defendant be cancelled with immediate effect. 1 | P a g e Lamu MCELC/E003/2025 judgment c. An order of this Honorable Court directing the Lamu County Land Registrar to effect the registration of the land held under the title LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 in the name of the Plaintiff, MWANAISIIA BAISIIE SHEEMOHAMED of identification number 0655362. d. An order of this Honorable Court that costs of the suit be borne by the Defendant. e. Any other orders as this Honorable Court deems fit. 2. The claim is defended by statement of defense and Counterclaim dated 28th May 2025, in which the defendant seeks: i. to be declared the rightful owner of all that parcel of land comprised in title number LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 situated at Mbwajumwali area of Lamu County measuring approximately 1.2 hectares. ii. An order directing the plaintiff and her proxies to vacate the land in tittle number LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 and deliver vacant possession to the defendant. iii. A permanent injunction be issued be issued against the plaintiff whether by herself , her agents ,servants, relatives, proxies or otherwise howsoever from remaining on or continuing to occupy any part or in any other manner dealing with tittle number LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 2 | P a g e Lamu MCELC/E003/2025 judgment iv. An order directing OCS Kizingitini police station to ensure compliance with above order. v. General damages for trespass and costs 3. The plaintiff filed her Reply to Defense and Counterclaim dated 7th August 2025. 4. The case proceeded for hearing where the plaintiff Mwaisha Baishe Shee Mohamed testified and called 6 witnesses being Bakari Bunu Bakari(PW2), Hadija Amini Mbwarahaji (PW3), Tima Shee Muhaj(PW4), Hadija Kae Shee(PW5) , Kassim Famau Madi Shosi (PW6) , in support of her case. They all adopted their respective written statement as evidence in chief. The defendant Mohamed Awadh Salim(DW1) testified and called Habiba Nasibu Vae( DW2) as defense witness in support of his case. They similarly also adopted their respective written statement as evidence in chief 5. Both the plaintiff and the defense filed written submissions which the court has read and will revert to them later as appropriate. 6. The case of the Plaintiff is that she together with her late husband; Hassan Muhaji bought a shamba from Mwanamkuu Shosi(deceased) in 1992 evidenced on receipt dated 5/2/1992 for Kshs 20,000 whereby Kshs 17,000 was paid by cash and balance Kshs 3000 to be paid later. That the Plaintiff cleared the balance of Kshs. 3,000 through DW2's husband. 7. The defendant opposes the plaintiff case and counterclaimed to be declared the rightful owner of all that parcel of land comprised in title number LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321, 3 | P a g e Lamu MCELC/E003/2025 judgment sought vacant possession and permanent injunction against the plaintiff. That contrary to the plaintiff’s claim, the plaintiff had approached the Mwanamkuu Shosi seeking permission to reside on the suit land with her family. That the permission was granted on condition that the plaintiff would take care of the land on behalf of the owners’ family and will notify them in any event of trespass or attempted grabbing. . That this went well until the plaintiff started to claim ownership and proceeded to sell or give out portions of the land to third parties. That even in 2015 in Malindi Civil Suit no 232 of 2015 the plaintiff was restrained from trespass or dealing or interfering with ownership. That later they met to see if they can resolve the matter amicably and have the plaintiff vacate suit properly. This did not work and so the defendant issued demand letter to the plaintiff seeking vacant possession and so the plaintiff instituted this suit 8. Plaintiffs Issues for determination are whether there was a valid transaction between the plaintiff and the Deceased vendor regarding a disposition of an interest in land? , Whether full payment of the purchase price created an equitable interest in favor of the Plaintiff? Whether the Defendant's subsequent registration as proprietor extinguished the Plaintiff's prior equitable rights? Whether the Defendant acted fraudulently and concealed material facts? Who should pay costs of the suit? 9. Defendants’ issues for determination. a)Whether the hand-written receipt dated 5/2/1992 conferred upon the Plaintiff any proprietorship rights or interests over the suit property (b) Whether there was fraud on the part of the Defendant in obtaining the title to the suit property (c) Who, between 4 | P a g e Lamu MCELC/E003/2025 judgment the Plaintiff and the Defendant, is the lawful owner of the suit property (d) What orders commend themselves in this suit (e) Who shall bear the costs of the suit. 10.From the above the issues can be distilled into : a) What is the legal implication of the hand-written receipt dated 5/2/1992 specifically as to whether this hand-written receipt dated 5/2/1992 conferred upon the Plaintiff any proprietorship rights or interests over the suit property (b) Whether there was fraud on the part of the Defendant in obtaining the title to the suit property (c) Who, between the Plaintiff and the Defendant, is the lawful owner of the suit property (d) What orders commend themselves in this suit (e) Who shall bear the costs of the suit. 11.Legal implication of the hand-written receipt dated 5/2/1992 It is the plaintiff’s case that, the handwritten receipt dated 5th Febmary,1992 ,marked and produced as Plaintiff's `exhibit number 2' is the evidence that the vendor, the late Mwanamkuu Shosi sold her shamba to the Plaintiff and her late husband for Kshs. 20,000. The vendor acknowledged receipt of Kshs. 17,000 with the balance to be paid in May, 1992 – that Kshs. 3,000 was paid through DW2's husband. That the two witnesses to transaction are deceased. He said that Somoe had children Aziza and Abdul Karim but they did not sign though the children said they got the money. That the defendant has even sold the property to other 5 | P a g e Lamu MCELC/E003/2025 judgment people, and even to some she gave them for free , some testified in court as witness of the plaintiff. That she was selling on her own names. She agreed she has no title and pleaded that the title by Mohammed Awadh is by mistake. She denied knowledge that Mohamed Awadh was administrator of Shosi though she never objected to him being chosen as administrator. 12.The defense case supported by the evidence of Mohamed Awadh is that per deed of transfer dated 28/3/1949 the suit property that was originally for the defendant great grandmother called Fatuma Binti Kale devolved to her children Somoe Binti Shosi and Mwanamkuu Binti Shosi who were the surviving beneficiaries. That at that time the property was just described as Shamba with plots situated at Kiwaiyu and Mbwajumwali Faza. That later the properties were surveyed and title known as LAMU/MYAB0GI MBWAJUMWALI MASHAMBANI SCHEME/321 in names of Somoe Binti Shosi and Mwanamkuu Binti Shosi were issued. 13.That the defendant is the grandson of Somoe Binti Shosi and is an administrator of estates of Somoe Binti Shosi and Mwanamkuu Binti Shosi per grant issued on 30/7/2015 in Mombasa succession cause no 426 and 427 both of 2013. He disputes the receipt herein stating that it does not confer any proprietary rights to the plaintiff over the suit property. That the said receipt was disowned by Mwanamkuu Binti Shosi. That the plaintiff action on the land amount to trespass. 14. That the Plaintiff in her reply to defense and counterclaim dated 7th 6 | P a g e Lamu MCELC/E003/2025 judgment August, 2025 under Paragraph 6 stated that one of the witnesses in the sale of shamba transaction; Mr. Mohamed Athman, had paid the balance of Kshs. 3,000 to Habiba's husband at Mbwajumwali. 15. It is the submission of the plaintiff that during Cross examination, DW2; Ms. Habiba Nasiba acknowledged that her mother was given the K8hs. 17,000 in Mbwajumwali and also that her husband was given the balance of Kshs. 3,000 while in Mbwajumwali for him to give to her DW2 mother in Mombasa . That DW2 further admitted that her late mother, who was the vendor told her that the Plaintiff gave her money and the witness is God. That this was corroboration of the Plaintiff's averments and the written receipt's terms that a consideration of Kshs. 20,000 was paid for the sale of the Shamba to the Plaintiff. 16. The defendants submission are that impugned receipt cannot be taken as a valid and enforceable agreement under the provisions of Section 3 (3) of the Law of Contract Act as reiterated in the provisions of Section 38 of the Land Act, 2012 which reads “No suit shall be brought upon a contract for the disposition of an interest in land unless- (a) the contract upon which the suit is founded – (i) (ii) is in writing; is signed by all the parties thereto; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party. Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.” 7 | P a g e Lamu MCELC/E003/2025 judgment 17.I have keenly looked at the handwritten receipt dated 5th February,1992 marked and produced as Plaintiff's `exhibit number 2. The hand-written receipt states as follows: “Mimi Mwanamkuu Shosi nimewauzia shamba yangu Hassan Muhaji na Mwanaisha Baishe shirika kwa shilingi elfu ishirini (20,000/=). Elfu kumi na saba nimetakabadhi Shilingi elfu tatu zilizobaki wakimaliza kulipa mwezi Mei mwaka elfu moja mia tisa na tisini na mbili (1992) nitawapatia hati yao rasmi. Naliwauzia mbele ya mashahidi kama wafuatao: Mohamed Athman Headmen Mohamed Bwanahamad Shamba hiyo iko Mbwajumwali” 18. Looking at above wordings , what is undisputed is an acknowledgement of receipt and strictly does not meet the legal threshold of a binding legal agreement from the formal requirement of what a contract generally and even as contract in respect of disposition of an interest in land ought to be. The Plaintiff nor her deceased husband signed the receipt contrary to Section 3(3) of the Law of Contract Act which expressly requires that an agreement for sale of land must be signed by both the vendor and the purchaser and attested by witness for it to be valid. Under 19.The law requires that the agreement must have sufficient details for identification of the parties, description of the property under sale, consideration, completion date, signatures of the vendor and purchaser and the attestation by witnesses. There is no argument by the plaintiff that what is presented in court is a receipt dated 5/2/1992 which acknowledges receipt of the payment. The fact is that even on its face is even titled “Hii ni Rasiti” which counsel for plaintiff explained it means “this is a receipt” in 8 | P a g e Lamu MCELC/E003/2025 judgment Bajuni dialect. 20.It is not a valid land sale agreement but a written acknowledgement receipt for payment. I have looked at the evidence of DW2 who also confirmed that this money was paid but disputes it was for sale but for appreciation of the recipients by the plaintiff. This receipt of payment cannot legally proof that the plaintiff legally acquired an equitable interest or constructive trust over the suit property. I am not convinced for above reasons that Sec 25 of the Land Registration Act provides that rights of a registered proprietor are subject to overriding interests and prior equitable claims is applicable in the case in favor of the plaintiff. The net effect is that there is no valid and enforceable legal agreement in the receipt dated 5/2/1992. 21.There is no one to confirm if the said receipt was authored by the Mwanamkuu Binti Shosi in absence of any corroborative evidence except as claimed by the plaintiff and disputed by the defense. 22.I find that having failed to establish that this receipt is a valid contract or agreement or has any such terms as to reasonably be construed as being capable of creating an inference of an agreement to sale an interest in land, then it is incapable to create an equitable interest on the land in issue. The said receipt as noted earlier does not identify the land, the locality nor title in issue and is not even signed by the two purchasers. The seller is only Mwanamkuu Shosi yet by deed of transfer the owners are two. It is not open to one co-owner sell the others portion without express or legal permission of the other co-owner. 9 | P a g e Lamu MCELC/E003/2025 judgment 23. Whether there was fraud on the part of the Defendant in obtaining the title to the suit property It is not in dispute that the suit property originally belonged to the Defendant’s great grandmother named Fatuma Binti Kale (Deceased). It is not controverted Somoe Binti Shosi and Mwanamkuu Binti Shosi (both deceased) were the surviving beneficiaries to the estate of Fatuma Binti Kale. Then legally and practically it follows that the properties of Fatuma Binti Kale devolved to her said daughters upon her demise. Each of the said daughters had a share in the estate of their mother and in this case in that property contained in Deed of Transfer dated 28th March 1949. 24.The Defendant being the son of one Aziza Abdulkarim who is the daughter of the said Somoe Binti Shosi (Deceased) obtained a Grant of Letters of Administration in respect to the respective estates of Somoe Binti Shosi and Mwanamkuu Binti Shosi in Mombasa Succession Cause No. 426 of 2013 and No. 427 of 2013 respectively, and a Certificate of Confirmation of a Grant was issued on 30th July 2015. All these are uncontested facts. 25.It is the evidence of the defendant that in the year 2015, during the issuance of title deeds to the bona fide land owners at Mbwajumwali Village, the title to the suit property came out in the joint names of Somoe Binti Shosi and Mwanamkuu Binti Shosi. That subsequently the title was registered in the name of the Defendant as the duly appointed administrator of their estate in the year 2024. This fact is clear confirmation that this land belonged to Somoe Binti Shosi and Mwanamkuu Binti Shosi otherwise the verification and survey team which relies on information 10 | P a g e Lamu MCELC/E003/2025 judgment from local community should have clearly made it known that the land was for the plaintiff. Why she didn’t raise issue with the survey and titling team in the year 2015 makes me believe she knew this land was not hers. It is highly unlikely that the local administration and committee members could have missed her by mistake yet she has ben in long occupation on the land. 26.The defendant being the son Aziza Abdulkarim who is the daughter of the Somoe Binti Shosi (Deceased), then under law of succession Act he was entitled to take out as he did the letters of administration of the estates of Somoe Binti Shosi and Mwanamkuu Binti Shosi - Mombasa Succession Cause No. 426 of 2013 and No. 427 of 2013 respectively. The Certificate of Confirmation of a Grant issued on 30th July 2015 is lawful and valid. The inclusion of the title the subject of this case in the succession cause in view of the finding that there were no legal or equitable interests created by the receipt or the alleged transaction in favor of the plaintiff; then it follows that the defendant had no obligation to disclose the said receipt or transaction in the succession cause. I find that the receipt herein was incapable of being a legally recognized an overriding interest contrary to the claim by the plaintiff. In any event there is no such interest never registered during the succession causes. 27.I hold that there is no fraud proved to the high standard of above the balance of probabilities but not as high as beyond reasonable. 28.The evidence availed by the plaintiff’s witnesses PW2, PW3 , PW4 ,PW5 and PW6 who were not there when the alleged agreement was made cannot support the plaintiff’s claim that the plaintiff bought the land from 11 | P a g e Lamu MCELC/E003/2025 judgment Mwanamkuu Binti Shosi in view of the above findings. 29.It is rather curious how and why no close family member of Somoe Binti Shosi and Mwanamkuu Binti Shosi were never involved in the alleged receipt or acknowledgement of sale and why if they were available to receive the proceeds of the sale they were not ready or available to sign sale agreement. 30.The payment of the monies is not denied but as to the exact purpose of the payment is highly contested. It is not reconcilable how Mwanamkuu Binti Shosi was selling the whole land that did not belong to her alone yet it was co-owned with her sister Somoe Binti Shosi. This agreement does not have any corroborative evidence that supports its existence or the terms therein stated safe for the word of the plaintiff. There is no believable evidence that Somoe Binti Shosi had relinquished her interest. I concur with the submission by the defense that the suit property remained part of the estate of the Late Fatuma Binti Kale for so long as no succession proceedings had been undertaken to ascertain and crystallize the respective interests of the beneficiaries therein so as to be capable of legally selling. 31.In any event as found earlier the alleged sale of the entire estate property by a beneficiary entitled only to a partial interest and without the consent, authority or participation of the other beneficiaries is sufficient to lead to nullify the sale at least for the share of Somoe Binti Shosi but this is not possible for the other reason I have made herein. 32.The cited authority in Suyianka & another v Suyianka [2026] KEELC 444 (KLR), wherein the Court held that an agreement executed by one 12 | P a g e Lamu MCELC/E003/2025 judgment beneficiary to the exclusion of the other beneficiaries and without the requisite authority to transact on behalf of the deceased’s estate, was invalid and unenforceable in law. 33. Similarly, disposal of property without legal capacity as per the Court of Appeal decision in Abed v Ali [2025] KECA 1323 (KLR) has serious egal implications on legal capacity to sell and ability to transfer only what he is lawfully permitted to transfer in this case, what he owns. 34.I note evidence was led toward proving that attempts were made to resolve this dispute and meetings were held between the plaintiff and the defendants’ family in Lamu or Mombasa. My analysis of the evidence and looking at the whole picture this meeting and outcomes of no agreement on the plaintiff’s claim cannot be deemed as acknowledgement of the sale transaction. 35. The submission by the plaintiff and cited authorities including Kimonye v Kirera & 2 Others [2023] eKLR by the plaintiff to effect that the purchase price once fully paid, then the buyer acquires equitable ownership and that it that survives the seller's death does not apply for above reasons. A reading of Section 28 of the Land Registration Act, 2012 on overriding interest in land is distinguished from the current facts outlined hereinabove. 36. As to who, between the Plaintiff and the Defendant, is the lawful owner of the suit property the Plaintiff is claiming ownership based on the receipt herein and the alleged transaction , which the defendant claims ownership pursuant to the confirmed grant. The answer lies in the 13 | P a g e Lamu MCELC/E003/2025 judgment determination made in the previous two issues. Since the plaintiff’s claim based on the receipt or the alleged transaction as stated on the receipt, then it follows that the land properly devolved to the defendant under the grant. The validity of the grant is not subject of this case and legally the land in issue if for the defendant. 37.The authority in Likama v Bakari (Environment and Land Appeal E023 of 2021) [2024] KEELC 6199 (KLR) that administrators hold property subject to obligations and that a buyer who paid in full before death has superior rights, and Kioko v Musembi (ELC E076 of 2022) [2024] KEMC 31 (KLR) that equitable purchasers cannot be dispossessed by later titles obtained through succession are not relevant nor applicable in the current case. Similarly, the Supreme Court in Torino Enterprises Ltd v Attorney General (Petition No. 5 (E006) of 2022) and Dina Management Ltd, county Govemment of Mombasa&50thers [2023] KESC 30 (KLR) addressed indefeasibility of title and or equitable rights and but these authorities are not applicable to current facts and issues before court. 38.I find that the Defendant, as the administrator of the Estate of the Deceased's vendor and her sister, obtained title legally and did not disregard to the Plaintiff's prior equitable rights as non were in existence. 39.Although Defendant instituted an ELC suit against the Plaintiff being Malindi Civil Suit No. 232 OF 2015 and the matter was eventually dismissed for want of prosecution this legally did no bar him to file another suit as done in current counterclaim. The Malindi Civil Suit No. 232 OF 2015 was never heard and nor finalized on the merits 14 | P a g e Lamu MCELC/E003/2025 judgment 40.I don’t find that defendant concealed material facts of the sale of the suit property by the Deceased vendor and the occupation of the suit property by the Plaintiff when he applied for the grant 41.The plaintiff’s suit is dismissed in the entirety with costs to the defendant. 42. The defendant’s claim per the counter claim dated 28th May 2025, is merited and allowed in favor of the defendant as follows: i. The Defendant is hereby be declared the rightful owner of all that parcel of land comprised in title number LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 situated at Mbwajumwali area of Lamu County measuring approximately 1.2 hectares. ii. An order is hereby issued directing the plaintiff and her proxies to vacate the land in tittle number LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 and deliver vacant possession to the defendant. iii. A permanent injunction is hereby issued be issued against the plaintiff whether by herself , her agents ,servants, relatives, proxies or otherwise howsoever from remaining on or continuing to occupy any part or in any other manner dealing with tittle number LAMU/ MYABOGI MBWAJUMWALI MASHAMBANI SCHEME/321 iv. The Plaintiff and all her proxies are granted 90 days’ notice to peacefully vacate and upon lapse of the said time the Defendant is at liberty to execute strictly within the law. 15 | P a g e Lamu MCELC/E003/2025 judgment v. An order directing OCS Kizingitini police station to ensure compliance with above orders as appropriate . 43.On the prayer General damages for trespass the court notes that this order is not available. The Plaintiff has been in occupation with permission from one of the owners. This possession was not or did not amount to trespass. In any event the defendant did not submit on this quantum aspect of the claim and court has no basis to start assessing general damages without factual basis. 44.On Costs , Section 27 of the Civil Procedure Act states: `` (1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. 45.The general principle that costs follow the event apply. Costs in respect of the plaintiffs claims and the defendants counterclaim are awarded to the Defendant against the plaintiff. 16 | P a g e Lamu MCELC/E003/2025 judgment Judgment read and delivered virtually at Lamu Law Court this …18th ……day of … …June …………2026 at 9.30am P.W. Wasike Principal Magistrate In the presence of Court Assistant Rhova …………………. For the Plaintiff Ms. Suheila ………… For the Defendant Mr. Abdul Munim …………… 17 | P a g e