https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3507

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELC CASE NO. 17 OF 2021** **HAMISI MASHOBO NYAKI……………………………...…1ST PLAINTIFF** **SHIDA KAHINDI KARISA ………………………...……….2ND PLAINTIFF** **-VERSUS-** **PIJEY INVESTMENTS LIMITED………………………....1ST DEFENDANT** **ATTORNEY GENERAL MALINDI ……………………...2nd DEFENDANT** **LAND REGISTRAR KILIFI……………………….………3RD DEFENDANT** **JACRANDA HOTELS……………………………………...4TH DEFENDANT** **NATIONAL LAND COMMISSION………………...…...5TH DEFENDANT** **JUDGMENT** 1. The plaintiffs, as joint administrators of Mashobo Nyaki Mwachambi's estate, filed these proceedings based on a grant of representation issued on June 25, 2018, and confirmed on May 14, 2019, by the Malindi Chief Magistrates Court. They initiated the case with a plaint dated March 18, 2021, which was amended on May 6, 2022, regarding ownership of the land known as Chembe/Kibabamshe/408. 2. The plaintiffs, by the amended plaint, primarily sought the following reliefs: 3. **A declaration is hereby made that the estate of Mashobo Nyaki Mwachambi-Deceased is the absolute lawful allottee and proprietor of all that parcel of land known as Chembe/Kibabamshe/408, situate in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya;** 4. **An order directing the Land Registrar, Kilifi, the 3rd Defendant, to issue a title deed for the suit land, Chembe/Kibabamshe/408, situate in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya, in favor of Mashobo Nyaki Mwachambi (Deceased) or in the name of his legal representatives (the Plaintiffs) within Fourteen (14) days from the date of judgment, decree, or decision herein;** 5. **A permanent injunction be issued restraining the Defendants, whether by themselves, their agents or servants, or otherwise, from entering upon, remaining upon, transferring, occupying, leasing, charging, alienating, assigning, and/or interfering with the estate of Mashobo Nyaki Mwachambi’s quiet and peaceful possession and occupation of the suit property known as Chembe/Kibabamshe/408, situate in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya; in default, an eviction order do issue, and the officer commanding station, Malindi Police Station, do ensure compliance;** 6. **A declaration is hereby made that the alleged subdivision of the suit property, Chembe/Kibabamshe/408, into Chembe/Kibabamshe/691 and Chembe/Kibabamshe/692 by the 1st Defendant is fraudulent, illegal, null and void, and of no legal effect;** 7. **A declaration is hereby made that the 1st and 4th Defendants have no legal right or recognizable interest in the property known as Chembe/Kibabamshe/408, situated in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya, and that any title documents they purport to hold relating to the suit property, including those for the purported subdivisions, are illegal, null and void, and stand revoked and/or canceled forthwith, and;** 8. **Costs and interest from the date of filing the suit.** 9. The defendants filed their respective defenses, except for the 4th defendant, for whom an interlocutory judgment was entered. The 1st defendant filed an amended defense dated August 31, 2022. The 2nd and 3rd defendants filed an amended statement of defense dated February 2, 2023, and filed it in court on the same date. The 5th defendant filed its defense on September 23, 2023. 10. The case proceeded to a full trial on the merits. Afterward, the Court directed the parties' counsel to submit written arguments, which they did. I received submissions from the plaintiffs' counsel, the 1st defendant, the 2nd and 3rd defendants, and the 5th defendant. These submissions greatly aided the Court in understanding the key issues and reaching a final decision. I appreciate the counsel's efforts. 11. Judgment in this matter was scheduled for delivery on February 4, 2026. However, after a change of counsel, the 1st defendant applied to have the judgment arrested, to present new evidence, to have the case struck out, or to have the case started *de novo*. This application was dismissed on May 13, 2026. The Court determined that: ***“Looking at the reasons proposed for halting the judgment and/or amending pleadings, or for starting the matter de novo or striking out the matter, the issues, as I have said, have already been ventilated in the trial awaiting a resolution on the merits – this is not one of those rare cases for granting the orders sought – the reasons proposed can be canvassed during the final submissions arising from the already concluded trial.”*** 1. The plaintiffs presented evidence through the testimony of the 2nd plaintiff, Shida Kahindi Karisa (PW1), who primarily relied on her amended witness statement dated 3rd February 2023. The plaintiffs contended that the suit land belongs to the estate of Mashobo Nyaki (Deceased). PW1 testified that the Deceased acquired the property during the adjudication process and resided there with his family until his death in 1994. She further indicated that the family continued to occupy the land after his death. Additionally, she stated that the Deceased had occupied the property since the 1970s, before her birth and before the adjudication process, and had planted numerous coconut trees there. PW1 further stated that the 1st defendant obtained questionable title documents for the suit land and claimed to have acquired it from their late brother, Kitsao Mashobo Nyaki, through a power of attorney allegedly granted to Yaa Baya Bimulingo. 2. The plaintiffs testified that the late Kitsao Mashobo Nyaki was not the owner of the suit land but was instead a beneficiary of the estate of Mashobo Nyaki Deceased, as the eldest son in the family. They explained that his family was listed as a beneficiary of the estate. Additionally, the plaintiffs pointed out that the 1st defendant provided inconsistent accounts of how it acquired an interest in the land—sometimes claiming to have bought it from their late brother, Kitsao Mashobo Nyaki, and at other times stating that it was acquired from the Government through adjudication or allocation. 3. PW1 testified that after discovering the 1st defendant’s claim to the suit land and after making multiple attempts to forcibly evict the family, they filed complaints with several government agencies for investigation. These agencies included the local land committee, the police, and, after its establishment, the National Land Commission. 4. The plaintiffs also presented evidence that the National Land Commission, acting within its legal authority, held public inquiries into the disputed ownership of the suit land in the Chembe Kibabamshe section. The inquiries concluded that the land was lawfully allocated to Mashobo Nyaki Mwachambi (Deceased) and that the 1st defendant's acquisition was illegal and fraudulent. 5. The plaintiffs tendered evidence that the National Land Commission properly published its findings and recommendations in the Kenya Gazette, Volume CXIX, No. 97, extract No. 6866, dated July 2017, which was accepted as evidence. 6. PW1 testified in court that after the National Land Commission completed its inquiries and published findings confirming that the estate of the late Mashobo Nyaki Mwachambi lawfully owns the suit land, they jointly applied for letters of administration. The letters were issued on June 25, 2018, and confirmed on May 14, 2019. The plaintiffs submitted the grant and the confirmation certificate as exhibits in this case. 7. PW1 stated that she knew the 1st defendant contested the National Land Commission's decisions and recommendations by filing **Judicial Review Application No. 5 of 2020**, reported as **Pijay Investment Company v Mohamed & 4 others [2022] KEELC 2303 (KLR)**, with this Court, which was ultimately dismissed. 8. PW1 testified that the estate of the late Mashobo Nyaki Mwachambi, who passed away in 1994, had no prior legal disputes with any of the defendants regarding the ownership of the suit property. He also stated that letters of administration for the estate were issued in 2018 and confirmed in 2019. 9. The 1st defendant presented testimony from three witnesses: Prosecution Counsel Kennedy Kirui Kariuki (DW4), retired adjudication officer Mr. Patrick Mwaniki Kilonzo (DW5), and Mr. Ahmed Hassan, an agent of the 1st defendant, who testified as DW6. 10. DW4 testified that he was summoned regarding a letter dated November 16, 2023, which he confirmed he had written and presented as the 1st defendant’s exhibit. He told the Court that the letter recommended that the ownership dispute over the suit land be decided by this Court after he became aware of these proceedings. DW4 also stated that it was unclear how the 1st defendant obtained a copy of the letter, as it was sent only to the office of the Inspector General, and the 1st defendant was not copied. 11. DW5, a retired Land Adjudication Officer, stated he produced letters dated 24th February 1999 and 18th August 1999, which serve as the 1st defendant’s exhibits. He confirmed authorship of these letters. DW5 explained that, despite the letters indicating the 1st defendant as the lessee of the suit land by allocation, he was not involved in verifying squatters or occupants in the Chembe Kibabamshe area. Additionally, he was unaware that the 1st defendant claimed to have acquired the land through purchase. 12. DW6 testified that he was giving evidence on behalf of the 1st defendant, based on a written authority from the 1st defendant and records provided by them. He primarily relied on his written witness statement dated 25th September 2024 as his main evidence. DW4, DW5, and DW6 presented the 1st defendant’s filed documents as exhibits in this case. 13. DW6 told the Court that he was not involved in acquiring the 1st defendant’s property, but his testimony relied on what the 1st defendant’s directors told him and on documents provided. He stated that the 1st defendant owns the title to the land in question, registered on 14th March 1994, which was bought from Kitsao Mashobo Nyaki. DW6 also mentioned that the transaction was conducted on behalf of Kitsao Mashobo Nyaki through a power of attorney dated 16th March 1994, signed by him. However, DW6 was unsure if the sale agreement for the 1st defendant was made on 8th March or 8th April 1994. 14. DW6 testified that in **Malindi ELC No. 86 of 2011**, reported as **Pijey Investment Company v. Athman Mohamed & 2 others [2019] KEELC 2485 (KLR)**, the Court determined that the 1st defendant was the rightful owner of the land in question. He acknowledged inconsistencies in the 1st defendant's ownership records and that the plaintiffs were not involved in that case. DW6 also admitted that the 1st defendant was not known as Pijey Investments Limited in 1994; the name was adopted on January 14, 1999, following a name change and the issuance of a certificate confirming the change. 15. The 2nd and 3rd defendants based their case on testimony from three public officials: Mohamed Billow Ibrahim, the Land Registrar of Kilifi County (DW1); PC Felix Oduya Onyango (DW2); and Mr. Martin Nyamu, the Kilifi Land Adjudication and Settlement Officer. 16. DW1 referenced his witness statement from October 25, 2023, during the trial. He told the Court that the ownership records used by the 1st defendant had obvious irregularities. DW1 pointed out that the power of attorney dated March 16, 1994, was not registered, and the title supporting the 1st defendant’s claim was issued on March 14, 1994, before the power of attorney was authorized and before the sale agreement was signed on April 8, 1994. He emphasized that this was irregular. DW1 also testified that there was no proof that a transfer document was executed and registered, and that the necessary completion documents were obtained before the alleged transfer and registration of the property title due to purchase. 17. DW1 informed the Court that his office was aware that the National Land Commission, in accordance with its legal mandate, had conducted public inquiries into the ownership of the suit land. These inquiries confirmed that Mashobo Nyaki (Deceased) was the rightful allottee and recommended updating the land records to reflect this in favor of his estate. 18. DW2, a police constable from the Directorate of Criminal Investigation, presented an investigation report dated 24th January 2023, as evidence. He testified that, following a complaint, their Kilifi office investigated the ownership of the suit land and found that the records maintained by the 1st defendant had been obtained illegally and fraudulently. DW2 explained that the land was allocated to Mashobo Nyaki Mwachambi. He pointed out several irregularities in the 1st defendant’s ownership records, notably that the title was registered before the power of attorney supposedly issued to Yaa Baya was executed; the title was issued to Pijey Investments Limited on 14th March 1994, although the company was legally formed only in 1999 after changing its name from Pijey Properties Limited. Additionally, the power of attorney was issued after a title was registered in the 1st defendant’s name, and it was not registered, as indicated by information from the land office. 19. DW3 also relied on his witness statement dated 20th March 2025 and submitted records from the Kilifi adjudication and settlement department related to the suit land. He testified that, according to official records, the land was adjudicated to Mashobo Nyaki and that he had complied with all conditions attached to the allocation. DW3 further stated that there are no separate records indicating that the land was adjudicated to either Kitsao Mashobo Nyaki or the 1st defendant. 20. Considering the evidence, materials, and submissions presented to the Court, I identify the following issues for determination: whether the lawsuit is *res judicata* and legally invalid; whether the claim is statutorily barred; whether the plaintiffs or the 1st defendant have established a legitimate and lawful interest in the suit land; whether the plaintiffs have sufficiently proved fraud and illegality against the 1st defendant to meet the required standard; whether the plaintiffs are entitled to the relief they seek; and who should be responsible for the costs of the suit. 21. It should be noted that the land dealings, ownership, and dispositions within the Chembe Kibabamshe Adjudication Section have been quite peculiar and have astounded the Courts concerning the methods of acquisition and allocation, including instances of double titling. Refer to this Court's observation in **Republic v Chief Land Registrar; Kamau (Ex parte Applicant); Guyo & 4 others (Interested Parties) [2023] KEELC 21242 (KLR)**, where this Court observed: ***“The titles issued are no longer indefeasible, the Land registers do not mirror the true disposition and ownership the officials at the adjudication and allocation missed it. Perhaps they will need to account for (indemnify) in future. There is this current slang going around in social media that for you to buy land in Kenya you will need a good lawyer, a surveyor, and a drunkard from that local area to tell you whether you will be purchasing “air”. The latter person will likely mirror the title better than the Land Registries! The titles arising from the Chembe/Kibabamshe Adjudication Section are worse! This will be a discussion in another forum.”*** 1. Concerning whether the suit is *res judicata,* the **Malindi ELC case No. 86 of 2011, Pijey Investment Limited v. Athumani Bakari Muhamed & 2 others**, the plaintiffs, along with the 2nd, 3rd, and 5th defendants, contested the *res judicata* claim. They cited various judicial authorities and argued that the estate of the late Mashobo Nyaki was not involved in the former proceedings. They further contended that the core issue was not the validity of the root of the interest claimed by the 1st defendant and the plaintiffs, and that no such determination was made. 2. Conversely, the 1st defendant argues that the judgment in the previous suit was issued by the Malindi ELC. They also contend that although the current plaintiffs were not direct parties, they participated through Simon Sulubu Kaingu, a relative of the late Mashombo Nyaki Mwachambi. As a result, the same family is estopped from relitigating in this matter. 3. The 1st defendant submits that the investigations carried out by the police, as in this matter, found that the 1st defendant was not culpable and/or fraudulent in the acquisition of the suit property. In addition, the same Land Registrar testified in the former suit and in this suit. 4. The principle of *res judicata* is anchored in the Civil Procedure Act, and Section 7 of the Act states that: ***“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”*** 1. The decision in **Independent Electoral and Boundaries Commission v Kiai & 5 others (Civil Appeal 105 of 2017) [2017] KECA 477 (KLR)** established essential principles to guide the application of the doctrine, as follows: ***“… Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;*** ***(a)The suit or issue was directly and substantially in issue in the former suit.*** ***(b)That former suit was between the same parties or parties under whom they or any of them claim.*** ***(c)Those parties were litigating under the same title.*** ***(d)The issue was heard and finally determined in the former suit.*** ***(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”*** 1. In John Florence **Maritime Services Ltd and another v Cabinet Secretary for Transport and Infrastructure and three other respondents [2021] KESC 39 (KLR),** the Supreme Court, commenting on the doctrine of *res judicata*, held as follows: ***“Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.*** ***59.That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, [2012] eKLR, thus:*** ***The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated,*** ***‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”*** ***59.For res judicata to be invoked in a civil matter the following elements must be demonstrated:*** ***a)There is a former judgment or order which was final;*** ***b)The judgment or order was on merit;*** ***c)The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** ***d)There must be between the first and the second action identical parties, subject matter and cause of action.*** ***(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in***[***Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011***](https://kenyalaw.org/akn/ke/judgment/keca/2013/217)***(2013) eKLR)”*** 1. In **Murage (Suing as the Administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another; KCB Bank Kenya Limited (Interested Party) [2025] KEELC 6488 (KLR)**, this Court (Njoroge J.) observed as follows: ***“In holding as above, this court is conscious of the flaunting of the judgment of the court in Malindi ELC Number 30 Of 2011 as having declared him as a bona fide purchaser for value. However, this court must state here and now that the said judgment was purely between the parties in that case and the plaintiff herein was not among them. When two strangers lacking in legal title are fighting for a house and one is proclaimed the owner, the declaration is confined to only the facts of that particular case. When the real owner of the house appears and lays his provable claim for the same and presents evidence in proof, the court can not afford to uphold any of the stranger’s claim if it is weaker than that of the real owner. That is what has happened in this case. The judgment in the case Malindi ELC Number 30 Of 2011 only proclaimed the 2nd defendant as bona fide purchaser (and not holder of title) from Kahuru Mumbo only relative to all other claimants in that case and not the present plaintiff who was not joined therein as a defendant. As per the nema dat quod non habet rule, Kashuru Mumbo had no legal title that he could transfer to anyone leave alone the 2nd defendant. That judgment is therefore confined to the transaction between the two and can not deter this court from pronouncing the plaintiff the owner of the suit land.”*** 1. Applying the test on *res judicata* as laid out above, a review of the record confirms that the plaintiffs, acting as administrators of the estate of the late Mashobo Nyaki, were not parties in the **Malindi ELC case of 86 of 2011, Pijey Investment Limited v Athumani Bakari Muhamed & 2 others**. It is also clear that the competing claims made by the plaintiffs and the 1st defendant were not resolved in the former suit; an examination of the judgment reveals that no defense was mounted, even though the suits concerned the same subject matter. Additionally, there is no indication that any parties in the earlier lawsuit acted as agents or representatives of Mashobo Nyaki's estate. The record shows that Mashobo Nyaki (the Deceased) died in 1994, and probate was issued in 2018 and confirmed in 2019. The defendants in the **Malindi ELC case of 86 of 2011, Pijey Investment Limited v Athumani Bakari Muhamed & 2 others**, claimed ownership of the land personally, not as agents or nominees of any third party. 2. The 1st and 2nd defendants, or any person, did not litigate as agents or representatives of the estate of the late Mashobo Nyaki in the absence of a legally issued limited grant or confirmed grant of representation, or having dealt with a person duly authorized in law to administer the estate of the Deceased. The Supreme Court in **Petition No. E004 of 2025; Hiram Bere Kinuthia (through the administrators of his Estate) v Edick Omondi Anyanga & 6 Others** pronounced itself that as a settled principle, only a party with locus standi may competently move the Court. 3. This Court, guided by the principles laid down in Independent Electoral and Boundaries Commission v Kiai & 5 others (supra), determines and holds that this suit is not *res judicata* in the **Malindi ELC case of 86 of 2011, Pijey Investment Limited v Athumani Bakari Muhamed & 2 others**. 4. The issue of *res judicata* is connected to whether the suit is legally invalid due to being commenced outside the prescribed limitation period. The 1st defendant argued that the suit is time-barred because it was filed more than thirty years after the 1st defendant was registered as the owner of the land in question. The plaintiffs rejected this claim. They asserted that shortly after discovering the 1st defendant’s interest in the land, in approximately 2011, and following coordinated efforts to forcibly remove them from the property, they, as a family representing the Deceased, lodged multiple complaints with various authorities and agencies, including the police, seeking assistance. 5. These complaints culminated in a 2017 finding by the National Land Commission that the interest held by the 1st defendant was illegally and fraudulently acquired. The Commission recommended the regularization of the estate of the late Mashobo Nyaki, based on the testimonies of PW1, DW1, DW2, and DW3. DW2 also testified that, following the discovery of the fraud, they recommended charging and prosecuting the 1st defendant for obtaining registration by fraud and false pretense. 6. PW1 also testified that, after investigations, the police established that the interest held by the 1st defendant was illegally and fraudulently acquired, as confirmed by DW2. The plaintiffs assert that, because their suit is anchored on fraud discovered following inquiries and investigations carried out by government agencies and offices, the time for purposes of computing the limitation period commenced when the alleged fraud was discovered. 7. The Court of Appeal in the case of **Njenga v Mugo & 3 others (Civil Appeal 145 of 2018) [2023] KECA 18 (KLR)** reaffirmed that, pursuant to section 26 of the Limitation of Actions Act, the commencement of time is triggered when the plaintiff becomes aware of fraud. 8. The plaintiffs have pleaded and submitted that fraud was unearthed by the investigative agencies as well as the public inquiries by the National Land Commission following their complaints from 2011 onwards, then the 12-year limitation period starts running from the time of such discovery. DW2 testified thus: ***“The family had been following the issue of their land since 2011 through the Local Land Committee. The National Land Commission did probe the issues of the parcel No. 408and recommended that the plot was to be regularized to Mashobo Nyaki.”*** 1. Similarly, this Court reiterated the same position in **Ikua v Kilifi Plantations (2014) Limited (Environment and Land Case Civil Suit 42 of 2022) [2023] KEELC 502 (KLR)**, restating that the limitation period commences from the time the alleged fraud is discovered. 2. Guided by the above cited authorities and principles, I find that the suit having been filed in 2021 and fraud having been pleaded, the same is not statute barred on account of time limitation as the fraud was discovered way after 2011 as pleaded by the plaintiffs and confirmed by DW2 who testified that they carried out the investigations that unearthed the alleged fraud that was equally flagged by the 5th defendant following a historical inquiry and it published its findings and recommendations in 2017 vide Kenya gazette. 3. The core issue in this dispute is determining which party—the plaintiffs or the 1st defendant—has established a valid legal interest in the land. Both this Court and the Appellate Courts have set guidelines for resolving conflicts over competing interests or title to property. The law now explicitly provides that when a title's validity is in question, the owner must do more than show the title deed; they must also substantiate the origin of their interest and demonstrate that their acquisition was lawful and properly conducted. Each party is responsible for providing evidence of a genuine and lawful root of their title or interest. 4. In **Dina Management Limited v County Government of Mombasa & 5 others [2021] KECA 503 (KLR),** the Supreme Court, citing the Court of Appeal decision in **Munyu Maina v Hiram Gathiha Maina, Civil Appeal No 239 of 2009 [2013] eKLR**, affirmed that mere possession of a title deed is inadequate to establish ownership. The title deed itself is subject to challenge; therefore, the registered owner must substantiate the lawfulness of the title, demonstrating that the acquisition was legal, properly formalized, and free from encumbrances—encompassing interests not recorded in the register—and that the title or lease was obtained through a lawful process. Should the procedures preceding the issuance of the title fail to comply with legal requirements, then the title cannot be deemed indefeasible. 5. The plaintiffs assert that the suit land was lawfully adjudicated in favor of the late Mashobo Nyaki. They rely on inquiry records and findings by the 5th defendant pursuant to its legal mandate; records held by the adjudication department, which were produced in evidence by DW3; correspondence from the local administration; and the DCI findings to assert that the interest claimed by the estate of Mashobo Nyaki was lawfully acquired. The plaintiffs further contend that, inasmuch as the 1st defendant has presented contradictory narratives on how it acquired an interest in the property, it is untenable that the root of its interest is drawn from Kitsao Mashobo Nyaki, as he has never held any valid interest capable of lawfully being transferred to a third party as purported by the 1st defendant. 6. The plaintiffs’ assertion that the estate of the late Mashobo Nyaki holds lawful ownership of the disputed land was substantiated by evidence provided by DW3 from the Kilifi Adjudication and Settlement Office. DW3 testified that official records from the Kilifi Adjudication and Settlement Office enumerate the late Mashobo Nyaki as the legitimate lessee of the disputed land. Additionally, he affirmed that the deceased had duly fulfilled the conditions for the allocation of the land and that, based on the available evidence, he had occupied the land since the 1970s. The land was also discharged in favor of the deceased. 7. DW3 was categorical that its records show no parallel allocation to Kitsao Mashobo Nyaki, from whom the 1st defendant traces its interest. The official records presented by DW3, together with the testimonies of DW1 and DW2, show that the suit land was allocated to the late Mashobo Nyaki. It has further been shown that the official inquiries by the 5th defendant into the ownership of the suit land established that Mashobo Nyaki was the legal owner of the suit land and that the 1st defendant’s acquisition was irregular and illegal. 8. Importantly, the record shows that the 1st defendant unsuccessfully challenged the findings and recommendations by NLC before this Court vide **Judicial Review Application No. E05 of 2020; Pijey Investment Limited v Athman Mohamed & 4 Others**. There is no evidence that this Court’s decision (Odeny J.) was appealed against. 9. The 1st defendant asserts lawful ownership of the suit land, having been registered as such following the acquisition of the property from Kitsao Mashobo Nyaki. This transaction was carried out on behalf of Kitsao Mashobo Nyaki by Yaa Baya Bimuliungo, acting under a power of attorney dated 16th March 1994. Additionally, the said Yaa Baya Bimulingo executed a sale agreement dated 8th April 1994; however, DW6 testified during the trial that it was signed on 8th March 1994, which predates the execution of the power of attorney. The 1st defendant presented a certificate of title, registered on 14th March 1994, into evidence. 10. The Superior Courts have clarified that anyone claiming to be a *bona fide* purchaser for value must prove they have a lawful, enforceable interest. In its decision in **Dina Management Limited v County Government of Mombasa & others** (supra), the Supreme Court reaffirmed the decision of the Court of Appeal in **Samuel Kamere v Land Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR**. It was established that to be considered a *bona fide* purchaser, one must demonstrate that they obtained a valid and legal title, performed due diligence to identify the legitimate owner from whom they acquired the title, and paid valuable consideration for the property. 11. The 1st defendant, although asserting that they purchased the disputed land from Kitsao Mashobo, did not provide any evidence demonstrating that they conducted due diligence to verify the manner in which Kitsao Mashobo acquired his interest in the land. They failed to produce allocation records, pre-acquisition searches, a duly executed and registered transfer deed, or evidence of stamp duty payment or consideration paid to Kitsao Mashobo. DW1 emphasized these as irregularities pertaining to the 1st defendant’s claim. 12. DW6 also acknowledged that although the 1st defendant is purported to have acquired an interest through a title registered on March 14, 1994, such title was issued prior to the purported donation of the unregistered power of attorney. Furthermore, Pijey Investment Limited did not legally exist at that time, as its name change occurred only in 1999, as evidenced by the certificate of change of name produced in evidence, dated January 14, 1999. 13. The 1st defendant asserts that the suit land has been subdivided into two parcels. Nevertheless, the evidence presented by the 2nd and 3rd defendants, along with their witnesses, indicates that the land remains undivided because the mutation document submitted by the 1st defendant was never registered. Furthermore, the pertinent Registry Index Map (RIM) sheet No. 26, plot 408, remains unaltered and has not been amended, as stated in paragraph 15 of the amended defense filed by the 2nd and 3rd defendants on 2nd February 2023, and corroborated by a letter from the survey department dated 12th April 2022, which was admitted into evidence. Witness DW6 for the 1st defendant acknowledged that the mutation had not been registered. No evidence has been provided to demonstrate that subdivision approvals were obtained, nor any proof to contradict the official survey records, which confirm that the land remains a single, undivided parcel. 14. Additionally, the 1st defendant did not present allocation records as evidence to prove that the Government granted Kitsao Mashobo the land and that he met the required conditions. This omission fails to contradict the testimony and certified records presented by DW3, which confirm the legal ownership of Mashobo Nyaki Mwachambi's estate. 15. The Court of Appeal in the case of **Philemon L. Wambia v. Gaitano Lusitsa Mukofu & 2 Others; [2019] eKLR** underscored the court’s obligation to preserve the integrity of the records maintained at the Lands Office unless persuasive evidence challenges their authenticity or credibility. No such conflicting or compelling evidence has been submitted. 16. The 1st defendant failed to provide evidence verifying the legitimacy of its primary interest and did not present any substantial expert testimony, including from the Ministry of Lands, to contest the critical evidence. This includes the expert reports by DW2 and DW3, which are corroborated by certified official records affirming the plaintiffs’ primary interest. Both this Court and the Appellate Courts have consistently held in numerous decisions that expert evidence may be challenged only by presenting alternative expert evidence. The appropriate way to rebut this expert's report is to obtain a different expert’s report, which must then be evaluated alongside all other evidence in the case. See **Chitembwe v Tribunal Appointed to Investigate into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court [2023] KESC 114 (KLR).** 17. The Apex Court has settled the law and principle to the effect that no protection can be afforded to a purchaser with respect to a title whose acquisition and root are marred by illegality and procedural irregularities. See **Dina Management Limited v County Government of Mombasa & others** (supra). 18. This Court concludes, on a balance of probabilities, that the plaintiffs have proven lawful title to the estate of the late Mashobo Nyaki. In contrast, the 1st defendant has failed to prove the legality of their ownership. Therefore, the plaintiffs are entitled to peaceful possession of the suit land. 19. Whether the plaintiffs’ allegations of fraud and illegality against the 1st defendants have been demonstrated to the required standards. The Court notes that, vide paragraphs 10I and 10J, the plaintiffs pleaded and particularized grounds of fraud and illegality against the 1st defendant. It is now trite that in cases where fraud is alleged, it is not enough to infer fraud from the facts alone; the party alleging fraud must explicitly plead and support it in accordance with the required standards. 20. The plaintiff, along with the 2nd, 3rd, and 5th defendants, asserts that fraud has been established against the first defendant. 21. On the contrary, the 1st defendant contends that the allegations of fraud against it have not been proved, as they are mere conjecture 22. Regarding the standard of proof, it has been established that demonstrating fraud requires a higher standard of evidence than that required in typical civil disputes. In **Fanikiwa Limited & three others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038), & 36 (E039) of 2022 [2023] KESC 105 (KLR)),** the Supreme Court explained that fraud, which may occasionally be categorized as a criminal offense depending on the circumstances, must be pleaded and proven with rigor. Moreover, the Court observed that while the civil standard for establishing fraud is not proof beyond a reasonable doubt, it exceeds the balance-of-probabilities standard commonly employed in civil litigation. See also **Lanet Hill Company Limited v School Management Committee Lion Hill Primary School & another [2023] KEELC 20098 (KLR).** 23. From the record, it is evident that the 2nd and 3rd defendants, through the evidence of DW1 and DW2, presented evidence corroborating the plaintiff's allegations of illegality and irregularities against the 1st defendant’s ownership records. These include, among others, the title dated 14th March,1994, having been issued in the name of a then nonexistent entity and before the issuance of the alleged unregistered power of attorney on which the 1st defendant’s interest is hinged. 24. The attempts by the 1st defendant to attribute the questionable issuance of a title in the name of a nonexistent legal entity to an error on the part of the Land Registrar were also deemed untenable. DW6 acknowledged that even the sale agreement related to the suit land—which the Land Registrar neither prepared nor was a party or witness to—indicated that the purchaser was the same Pijey Investments Limited that appears on the title dated 14th March, 1994. However, the name legally came into existence through a change-of-name certificate issued in 1999. 25. DW1 and DW2 also testified that the power of attorney was allegedly donated on March 16, 1994, after a title was issued in the 1st defendant's name. Additionally, they confirmed it was not registered as required by law. The 1st defendant, through DW6, admitted the irregularity without explanation. The alleged subdivision process for the suit land was also shown to be irregular, and DW6 admitted at trial that there was no evidence of the necessary approvals before the subdivision. Furthermore, the mutation related to the subdivisions and titles was never registered, and RIM was not amended as required by law. 26. In affirming that it was irregular and unlawful for the alleged transaction resulting in the 1st defendant’s acquisition of an interest to have been founded upon an unregistered power of attorney donated after the issuance of the title, I am convinced by the decision of this Court (Dena J) in **Mutisya & another v Mugambi & another (Environment and Land Case E010 of 2023) [2025] KEELC 5847 (KLR)**. The Court observed that a power of attorney must be specific to the land in question, must be registered to confer authority upon a person to deal with the property as a donee. That approval by a Land Registrar does not constitute registration. 27. Whereas no sufficient evidence has been presented to enable the Court to indict the 1st defendant for fraud, sufficient evidence has, however, been tendered, including the 1st defendant’s witness’s admissions on cross-examination, to demonstrate that the interest claimed or held by the 1st defendant in the suit land and/or the purported subdivisions was illegally, unprocedurally, and irregularly acquired. 28. Guided by the decision in **Philemon L. Wambia v Gaitano Lusitsa Mukofu & 2 Others** (supra), the Court has concluded that sufficient evidence has been presented to establish that the interest held by the 1st defendant in the suit land and/or its subdivisions was acquired unlawfully and irregularly. Furthermore, the 1st defendant has failed to demonstrate that its foundational interest is legitimate. Accordingly, the Court finds that the title or titles held by the 1st defendant are subject to revocation and/or cancellation pursuant to Section 26 of the Land Registration Act. 29. The outcome is that the plaintiffs’ suit succeeds on a balance of probabilities, and the Court accordingly grants the following reliefs: 30. **A declaration is issued that the estate of Mashobo Nyaki Mwachambi-Deceased is the absolute lawful allottee and proprietor of the parcel of land known as Chembe/Kibabamshe/408, situated in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya;** 31. **A declaration is issued that the alleged subdivision of the suit property, Chembe/Kibabamshe/408, into Chembe/Kibabamshe/691 and Chembe/Kibabamshe/692 by the 1st defendant is illegal, null, and void.** 32. **A declaration is issued that the 1st and 4th defendants have no legal right or recognizable interest in the property known as Chembe/Kibabamshe/408, situated in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya, or in its purported subdivisions known as Chembe/Kibabamshe/691 and Chembe/Kibabamshe/692. Any ownership or title documents they purport to hold are illegal, null, and void, and stand revoked and/or canceled forthwith.** 33. **The Land Registrar of Kilifi, the 3rd defendant herein, is directed to cancel any title documents held by the 1st defendant, Pijey Investments Limited, and the 4th defendant, Jacaranda Hotels, relating to the property known as Chembe/Kibabamshe/408, situated in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya, and/or its purported subdivisions known as Chembe/Kibabamshe/691 and Chembe/Kibabamshe/692.** 34. **The 3rd Defendant, the Land Registrar of Kilifi, is directed to issue and register a certificate of title in the name of the deceased, Mashombo Nyaki Mwachambi, or the Plaintiffs herein, in their capacity as the legal representatives of the estate of the Late Mashobo Nyaki Mwachambi.** 35. **A permanent injunction is issued, restraining the 1st and 4th Defendants, whether acting by themselves, their agents, employees, or servants, or otherwise, from entering upon, remaining upon, transferring, occupying, leasing, charging, alienating, assigning, and/or in any manner interfering with the estate of the late Mashobo Nyaki Mwachambi’s quiet and peaceful possession, use, and occupation of the property known as Chembe/Kibabamshe/408, situated in Jacaranda Malindi Sub-County within Kilifi County in the Republic of Kenya. By default, an eviction order shall be issued, and the Officer Commanding Station at Malindi Police Station, or the nearest police station, shall ensure compliance.** 36. **Cost to the Plaintiff.** **Dated, signed, and delivered electronically in Nyeri on June 3, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Ndegwa H/B for Mr. Odunga for the Plaintiff** **Ms. Kihungi H/B for Mr. Sheth for the 1st Defendant** **Mr. Munga for the 2nd and 3rd Defendants** **Kendi: Court Assistant** **In the absence of:** **Mr. Kiilu for the 5th Defendant**