https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4143

Perrucchetti & another v Kinuthia Holdings Ltd & 4 others (Environment and Land Case 213 of 2014) [2026] KEELC 4143 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEELC 4143 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 213 of 2014 LL Naikuni, J July 3, 2026 Between Marcello Perrucchetti 1st Plaintiff Marilena Belli 2nd Plaintiff and Kinuthia Holdings Limited 1st Defendant Obadiah Kioko Kavivya 2nd Defendant Caroline Njogu t/a Ms J Thongori & Co Advocates 3rd Defendant Kwale District Land Registrar 4th Defendant Hon Attoeney General 5th Defendant Judgment I. Preliminaries 1.The Judgment of this Honourabe Court pertains to the Amended Plaint dated 25th April, 2017 filed by Marcello Perrucchetti and Marilena Belli, the Plaintiffs herein, against Kinuthia Holdings Limited, Obadiah Kioko Kavivya, Caroline Njogu t/a J. Thongori & Co. Advocates, the Kwale District Land Registrar, and the Honourable Attorney General, the 1st, 2nd, 3rd, 4th & 5th Defendants herein. 2.Upon service of the pleadings and summons to enter appearance, the Defendants duly complied accordingly. Subsequently, parties filed their pleadings as follows:-a.the 1st Defendant filed its Amended Statement of Defence and Counter - claim dated 29th August, 2017;b.the 2nd Defendant filed a Statement of Defence dated 20th September, 2017.c.the 3rd Defendant filed her Defence and supporting documents dated 2nd June, 2021 and accompanying list of witnesses, witness statement and list of documents all dated 2nd June, 2021 and the Supplementary list of documents dated 17th March, 2023; andd.the 4th and 5th Defendants filed a Defence to Counter - claim dated 29th September, 2014. 3.From the onset, it is instructive to note that the Plaintiffs withdrew the case against the 1st Defendant. Hence, their only participation in the matter was due to their filed Counter – Claim hereof as shall be expansively addressed herein. II. Description of the parties 4.The 1st Plaintiff, Marcello Perrucchetti, was described as an adult male of sound mind, a Citizen of Italy and a tourist in Kenya, an Insurance Agent residing in Milano in Italy who sought to acquire land for residential purposes within the County of Kwale. The 2nd Plaintiff, Marilena Belli, was described as an adult female of sound mind, also a Citizen of Italy and residing in Milano, Italy and a tourist in Kenya, who jointly entered into the transaction for the purchase of the suit property. 5.The 1st Defendant, Kinuthia Holdings Limited, was described as a limited liability company duly incorporated under the provisions of the Companies Act, under Cap. 486, Laws of Kenya, with its registered offices in Nairobi and elsewhere in the Republic of Kenya, and the registered proprietor of land parcel known as Land reference Numbers Kwale/Galu Kinondo/397. The 2nd Defendant, Obadiah Kioko Kavivya, was described as an adult male of sound mind residing, a citizen of Kenya and working for gain within the County of Kwale who purported to sell the suit property to the Plaintiffs. 6.The 3rd Defendant, M/s. Caroline Njogu t/a J. Thongori & Co. Advocates, was described as an Advocate of the High Court of Kenya practicing in Diani, the County of Kwale, who acted for the Plaintiffs in the conveyancing transaction and prepared the Sale Agreement. 7.The 4th Defendant, the Kwale District Land Registrar, was described as a public officer charged with the custody and registration of all land records within County of Kwale, sued in his official capacity. 8.The 5th Defendant, The Honourable Attorney General, was described as the principal legal adviser to the Government of Kenya and sued pursuant to the Government Proceedings Act, representing the State in matters arising from the actions of public officers. III. Court directions before the hearing 9.On 17th April, 2018, upon confirming that all parties had fully complied with the provisions of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court directed that the matter be set down for hearing. 10.Consequently, on 15th October, 2018, the Honourable Court fixed the hearing date, and the matter proceeded by way of adducing “Viva voce” evidence. The Plaintiffs called their first witness, PW - 1 – Marcello Perrucchetti, who testified and produced documentary exhibits. The Plaintiffs thereafter called PW - 2 – Marilena Belli on 2nd May, 2019, after which they marked their case closed. 11.By consent recorded on the same day, the Plaintiffs’ suit against the 1st Defendant, Kinuthia Holdings Limited, was marked as withdrawn with no order as to costs. 12.The 1st Defendant’s Counter - Claim was heard on 30th October, 2019, wherein DW - 1 – Philip Waithaka Kinuthia, a director of the Defendant company, testified and produced documents in support of the Counter - Claim. The 1st Defendant marked its case closed on the same day. 13.The 4th and 5th Defendants, represented by Counsel, marked their case closed on 3rd March, 2020. The 3rd Defendant, M/s. Caroline Njogu Advocate, testified as DW - 2 on 1st July, 2024, adopting her witness statement and documentary evidence, after which she marked her case closed. Upon closure of all parties’ cases, the Court directed that written submissions be filed on 1st July, 2024, and subsequently reserved judgment on 23rd September, 2024 and later the same was scheduled to be on notice as the Court was on transfer. IV. The case by the Plaintiff 14.From the filed pleadings, through the Law firm of Messer. John Bwire & Associates Advocates, at all material times relevant to the suit, the Plaintiffs were bona fide purchasers for value without notice for all that parcel of Land known as Kwale/Galu Kinondo/2368, measuring 0.60 HA (“the Suit Property”), from one Obadiah Kioko Kavivya, the 2nd Defendant herein. 15.The Plaintiffs averred that during and after the Purchase of the Suit Property, they instructed the 3rd Defendant to be their legal counsel to among other things, conduct due verification of ownership of the Suit Property and oversee the process of sub - division of land known as Land Reference numbers Kwale/Galu Kinondo/399 which sub - division gave rise to the suit property. The Plaintiffs further averred that it was an implied, alternatively, a tacit term of the Advocate - Client relationship that:-a.The 3rd Defendant had the duty to perform her services diligently and in the exercise of skill which could be reasonably expected of a person of his knowledge and experience;b.The 3rd Defendant had a duty to act in good faith including the duty to work honestly, to desist from any form of fraud and deceit.c.In their relationship with the Plaintiffs, the 3rd Defendant was not to engage in any form of collusion with the Vendor. He was also expected to generally look and act in the interests of the Plaintiffs; andd.As a legal counsel, the 3rd Defendant was required to exercise all due diligence to verify ownership of the Suit Property and protect the Plaintiffs from any sort of fraud 16.On the basis of the legal advice of the 3rd Defendant and assurance that the Suit Property belonged to the 2nd Defendant, the Plaintiffs, on 13th March, 2014 entered into a Sale Agreement with the 2nd Defendant to purchase the Suit Property for a consideration of a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs 13,500,000.00/=) which money was paid in full through the 2nd and 3rd Defendants. 17.The Plaintiffs averred that subsequent to the execution of the sale agreement aforesaid, the 4th Defendant duly approved the transfer of property from the 2nd Defendant to the Plaintiffs by expending his signature and issuing a title deed as proof of ownership. The Plaintiffs further averred that upon being issued with the title deed aforesaid, they embarked on constructing their holiday home when the 1st Defendant confronted them and laid claim of ownership of the suit property and produced another title deed of the Suit Property in the name of the 1st Defendant. The Plaintiffs reported the matter to the police and also went to peruse the parcel file of the suit property at the 4th Defendant's offices where they noticed that the 4th Defendant had made an adverse entry on the green card freezing all transactions on the Suit property on grounds that the Plaintiffs title was procured illegally and fraudulently. 18.The Plaintiffs averred that they immediately approached the 2nd Defendant with a view of obtaining a refund of the purchase price but the 2nd Defendant had informed them that he was not aware of any fraud and that he was not paid full purchase price. The Plaintiffs had recently discovered that the 2nd, 3rd and 4th Defendants conspired to defraud them the purchase price by opening and creating another parcel file (read Green Card) for the suit property, particulars which were as follows:-a.2nd and 3rd Defendants prepared and advised the Plaintiffs to sign the sale agreement when they knew or had reasons to know that the Suit Property did not belong to the 2nd Defendant;b.2nd, 3rd and 4th Defendants illegally opened another parcel file of the suit property and created a title deed in favour of the Plaintiffs when they knew very well or had reasons to know that the 2nd Defendant did not have any title in the Suit Property;c.2nd, 3rd and 4th Defendants illegally and fraudulently issued and/or caused to issue official searches, Green card, Parcel file and title deed in the name of the 2nd Defendant when they knew or had reasons to know that the 2nd Defendant had no ownership on the suit property. 19.The Plaintiffs averred that as already pleaded in Paragraphs 9 above, the 3rd Defendant breached her duty of care particulars of which are as follows:-a.failing to conduct due verification of ownership of the suit property before signing of the sale agreement;b.failing to exercise care and due diligence during the transaction;c.Conspiring with the 2nd and 4th Defendants to defraud the Plaintiffs 20.The Plaintiffs averred that as a result of fraud and breach of duty aforesaid, the Plaintiffs had suffered loss and damages. Despite demand and notice of intention to sue, the 1st Defendant had persisted trespassing onto the Plaintiffs property. The cause of action arose within the jurisdiction of this Honourable Court. There was no pending suit or previous proceedings before any Court of law between the same parties over the same subject matter. 21.The 1st and 2nd Plaintiffs prayed for Judgment to be entered against the 1st, 2nd, 3rd, 4th & 5th Defendants herein jointly and severally for Orders that:-a.A permanent injunction restraining the Defendants by itself themselves, it’s their agents and/or servants from trespassing onto the Plaintiffs’ parcel of land known as Kwale/Galu Kinondo/2368, measuring 0.60HA.b.A declaration that the Plaintiffs are the absolute owners of land known as Kwale/Galu Kinondo/2368, Measruing 0.60HA.c.In the alternative an order do issue against the 2nd, 3rd and 4th Defendants jointly and severally compelling them to refund the purchase price paid to them by the Plaintiff.d.A mandatory injunction compelling the Defendant to forthwith pull down and remove any buildings and/or other structures build by the Defendant on the Plaintiffs parcel of land known as Kwale/Galu Kinondo/2368, MEASRUING 0.60HAe.General damages.f.Costs of the suit and interestg.Any other relief this Honourable Court may deem just and fair to grant. 22.The Plaintiffs called PW - 1 on 15th October, 2018 at 11.00 am who testified as follows:- A. Examination in chief of PW - 1 by Mr. Bwire Advocate and interpreted by Mr. Randu: - 23.PW - 1 was sworn and testified in English language. He was called Marcello Perrucchetti, a citizen of Italy. He told the Court that he was an Insurance Agent in Milano in Italy. He was a tourist in Kenya. He was aware why he was in court that day. PW - 1 stated that he knew the 2nd Defendant, Obadiah Kioko Kavinya. PW - 1 testified that he was in need of land to purchase for the construction of a house because he was growing old. PW - 1 stated that he found some land. PW - 1 testified that he was introduced to the land by one Collins. PW - 1 further stated that Collins was a person to whom he had been referred and who had worked with some people he knew. 24.PW - 1 testified that Collins took him to the land and he liked it. PW - 1 testified that Collins did not take him to the owner of the land. PW - 1 further stated that Collins told him the land belonged to one Obadiah who resided in Nairobi. PW - 1 confirmed that Obadiah was the 2nd Defendant herein. PW - 1 stated that he asked Collins what he would do to purchase the land and Collins advised him that they would go to an advocate. 25.PW - 1 testified that he went to Imperial Bank, Diani Branch, where he saw the Manager and asked to be referred to an Advocate. PW - 1 further stated that the Bank Manager referred him to M/s. Caroline Njogu Advocate, the 3rd Defendant. PW - 1 confirmed that he called M/s. Caroline Njogu to book an appointment to see her and thereafter visited her office. PW - 1 testified that he was accompanied by his wife, Belli Marilena, the 2nd Plaintiff, and a friend whose name he could not remember at the time of testifying. However, PW - 1 clarified that he has now remembered the friend’s name was Eva. 26.PW - 1 stated that he told the advocate he was interested in buying land and she asked him where it was. PW - 1 stated that he told the advocate he was interested in buying land and she asked him where it was. PW - 1 confirmed that when they visited the advocate, they had already agreed on the purchase price. 27.The witness stated that Collins told him that Mr. Obadiah Kioko Kavivya, the 1st Defendant was asking for a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13, 500, 000/=). PW1 testified that he was told to engage Mr. Kavivya and that if they agreed on the price, they could proceed. PW - 1 further stated that he was being told these things by people whom he met around that time. PW - 1 confirmed that he engaged the advocate as he had been advised, to prepare the sale agreement for the land. PW - 1 testified that Caroline Njogu, the 3rd Defendant, explained to him the procedure of how to make payment. PW - 1 stated that the search was conducted later, after the signing of the agreement. PW - 1 clarified that the search was made by one Vincent, who had been introduced to them. PW - 1 stated that he had not seen any title in the name of Obadiah Kioko Kavivya before they signed the agreement. PW - 1 testified that the advocate later told him she required ninety (90) days to conduct a search. PW - 1 confirmed that the advocate was Caroline Njogu, the 3rd Defendant. 28.PW - 1 testified that later the same advocate called him and told him the land was clean, but advised him not to pay the entire amount. PW -1 stated that he signed an agreement together with the advocate of Obadiah Kioko Kavivya. PW - 1 confirmed that the agreement was signed in the office of the 3rd Defendant, Caroline Njogu. 29.PW - 1 stated that he wished to produce the Agreement for Sale as an exhibit, marked Plaintiff’s Exhibit No. 1. PW - 1 testified that the purchase price was a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13, 500, 000/=). He paid as follows:-a.a deposit of a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1, 500, 000/=) on 13th March, 2014.b.the second instalment of a sum of Kenya Shillings Four Million (Kshs. 4, 000, 000/=) in May, 2014 in the name of Obadiah.c.the final payment of a sum of Kenya Shillings Eight Million (Kshs. 8, 000, 000/=)_ in August, 2014 to the 3rd Defendant. 30.PW - 1 clarified that he had copies of the cheques that were paid to Obadiah Kioko. PW - 1 stated that he wished to produce copies of the Bankers Cheques dated 13th March, 2014 in the name of Obadiah Kioko Kavinya as exhibits, marked Plaintiff’s Exhibit No. 2. PW - 1 stated that he wished to produce the Funds Transfer Form dated 30th May, 2014 for a sum of Kenya Shillings Four Million (Kshs. 4,000,000/-) in favour of Obadiah Kioko Kavinya as an exhibit, marked Plaintiff’s Exhibit No. 3. PW1 stated that he wished to produce the Funds Transfer for a sum of Kenya Shillings Eight Million (Kshs. 8, 000, 000/=) in favour of John Thongori Advocates dated 6th August, 2014 as an exhibit, marked Plaintiff’s Exhibit No. 4. 31.PW - 1 stated that after paying the full purchase price, he went to the office of M/s. Caroline Njogu Advocate. PW - 1 testified that Caroline Njogu gave him the title deed for Title No. Kwale/Galu Kinondo/2368 measuring 0.6HA in their names. PW - 1 stated that he wished to produce the Title Deed as an exhibit, marked Plaintiff’s Exhibit No. 5. PW - 1 testified that before he made the last payment, Caroline Njogu had confirmed to him that everything was okay. After he got the title deed, he went home happy, having acquired land in Kenya. 32.PW - 1 stated that after six to seven days he went to the site with the intention of putting up a stone fence. PW - 1 testified that a lorry came to the site and demolished what was being constructed. PW - 1 further stated that he was surprised as he did not know how they came to know that he was on the site and had started construction. PW - 1 testified that one lady came out of the lorry and waved a copy of a Title Deed, telling him that the land was hers and that he had been conned. PW - 1 stated that he called the advocate, Caroline Njogu, who told him she was sorry and that she could not continue with the issue. PW - 1 testified that Caroline Njogu told him she did not know what was happening and advised him to get another advocate as she could not assist any further. PW - 1 confirmed that he asked why, yet he had instructed her and even paid her fees of a sum of Kenya Shillings Five Hundred Thousand (Kshs. 500,000/-). 33.PW - 1 told the court that Caroline Advocate never assisted as she later left. PW - 1 stated that Caroline Njogu referred him to Vincent, who was the advocate for the vendor, and told him to instruct him. PW - 1 testified that he went to the Police Station at Ukunda where he lodged a complaint and made a report. PW - 1 confirmed that he recorded a statement on 21st March, 2015. PW - 1 stated that he wished to produce the statement as an exhibit, marked Plaintiff’s Exhibit No. 6. PW - 1 testified that the police told him they would carry out a search to find out the position of that title. 34.PW - 1 stated that he followed up the issue with the Kwale Lands Office Registry, who informed him that he had been conned and that the Title Deed which had been given to him was fake. PW - 1 testified that he blamed Caroline Njogu Advocate, to whom he had paid a sum of Kenya Shillings Eight Million (Kshs. 8, 000, 000/=) through her law firm. PW - 1 further stated that he also paid M/s. Caroline Njogu Advocate a sum of Kenya Shillings Five Hundred Thousand (Kshs. 500,000/-) in cash for legal fees and another sum of Kenya Shillings Five Hundred Thousand (Kshs. 500,000/-) for official search, conveyancing and taxes. 35.PW - 1 stated that in total he paid a sum of Kenya Shillings One Million (Kshs. 1,000,000/-) to M/s. Caroline Njogu Advocate and Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13, 500, 000/=) for the land. PW - 1 stated that the total amount he paid was a sum of Kenya Shillings Fourteen Million Five Hundred Thousand (Kshs. 14, 500, 000/=). PW - 1 testified that he was asking the court to enter judgment against the Defendants as prayed. B. Cross Examination of PW - 1 by Ms. Ngigi for 1st Defendant:- 36.PW - 1 stated that he started the negotiations around March, 2014. PW - 1 testified that he had visited the land severally and even took photographs. PW - 1 further stated that there was a small house on the land and that Caroline Njogu Advocate wrote to the occupants of that house to vacate, though he did not remember the date that letter was written. PW - 1 confirmed that it was true he visited the property and found some people there. PW - 1 stated that he did not ask those people who they were. PW - 1 confirmed that there was a structure on the property. PW - 1 testified that the property did not have a physical boundary, so he could not tell whether the structure was on that property or outside. PW - 1 further confirmed that the structure was still there, but it was out of that parcel. PW - 1 stated that he did not know anything about the letter written on 8th August, 2014 by Thongori & Co. Advocates. PW - 1 stated that he paid money for survey as the advocate had told him. PW -1 testified that he did not go to the site when the survey was being done. 37.PW - 1 stated that the church could be on the suit property. PW - 1 testified that the two people he met were introduced to him by Collins, and they showed him the boundary while informing him that the owner was in Nairobi. PW - 1 stated that two people told Collins that the price of the land was a sum of Kenya Shillings Thirteen Million Five Hundred (Kshs. 13, 500, 000/=), and Collins relayed the same to him. PW - 1 testified that he never saw Obadiah, and even when he asked, the advocate was not present but told him that Vincent was there representing Obadiah. 38.PW - 1 further stated that he never met the two people again. PW - 1 testified that the name Obadiah was being used, but he did not know if the said Obadiah existed or not. PW - 1 confirmed that he never saw the search, though the advocate told him she had carried out one. PW - 1 further stated that he did not understand what a Green Card was, had never seen it, and even if he had seen it, he could not understand it. PW - 1 stated that he did not remember seeing the original Title Deed in the name of Obadiah. PW - 1 testified that he trusted his advocate entirely. PW - 1 further stated that in his list of documents there was a copy of a Title Deed in the name of Obadiah Kioko Kavinya. PW - 1 confirmed that he did not ask the people on the site who the owner of the property was. 39.PW - 1 confirmed that he had been conned and stated that he was not asking for the land to be given to him but was only seeking for justice. He testified that all what he was asking was for the court to order that he be refunded the money he had paid for the land transaction. PW - 1 further stated that when he went to the Lands Offices, he was told that the Title Deed he had was fake. His testimony was that he instructed his advocate, who filed pleadings including the parties therein. PW - 1 confirmed that he now knew - Kinuthia Holdings Ltd, the 1st Defendant, was the owner of the suit property, and that his advocate had included the name of Kinuthia Holdings Ltd. in the suit. 40.PW - 1 stated that his case was against one Mr. Obadiah, the 2nd Defendant and all those people who were involved, including those at the Land Registry. PW - 1 testified that if Kinuthia Holdings Ltd. was holding a genuine Title Deed, he would not object. C. Cross Examination of PW - 1 by Mwandenje for the 4th and 5th Defendants: - 41.PW - 1 stated that he paid a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13, 500, 000/=) to purchase the land. PW - 1 testified that the advocate told him there were taxes to be paid, though he did not know whether they were paid or not. PW - 1 further stated that he was given the Title Deed by the advocate. That he walked to her office where she handed it over to him. PW - 1 confirmed that he signed all the documents given to him by his advocate, though he did not know if a transfer was one of them. 42.PW - 1 testified that he only went to the Lands Office after learning that he had been conned. He went there to verify if the Title Deed he had was genuine. PW - 1 stated that he did not go to the Lands Office earlier because he trusted his advocate, who had told him that was the procedure. PW - 1 further testified that if the signature in the Title Deed was from a person at the Lands Office, then he also blamed that person or official. PW - 1 confirmed that it was his advocate who handed the Title Deed to him. 43.The Plaintiffs stood down the witness and PW - 2 was called on 2nd May, 2019 for re – examination. By consent, the Plaintiffs suit against the 1st Defendant, Kinuthia Holdings Limited. Was hereby hereby marked as withdrawn with no order as to costs on the same day. 44.The Plaintiffs called their second witness on the same date who testified as follows:- A. Examination in Chief of PW – 2 by Mr. Bwire Advocate. 45.PW - 1 was sworn and testified in Italian language, She was called MARILENA BELLI who was of the Italian nationality and lived in Milano, Italy. She was in Kenya as a tourist in Diani Beach, Mombasa. PW- 1 testified that she signed a witness statement dated and filed on 14th August, 2014. PW - 1 further stated that she and her associates would like to be paid back the consideration they had paid to purchase the suit property, being a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13, 500, 000/=). 46.The Plaintiffs through their counsel Mr. Bwire Advocate marked their case closed on 2nd May, 2019. The 2nd to 5th Defendant marked their case closed as well. 47.On 1st July, 2024, the 1st Plaintiff was recalled and he testified that: - A. Examination in chief of PW - 1 by Mr. Tembe Advocate. 48.PW - 1 was sworn and testified in the Italian language. PW - 1 stated that he adopted the evidence already on record as his evidence‑in‑chief. B. Cross Examination of PW - 1 by Mr. Muriithi Advocate. 49.PW - 1 stated that when they went to Diani, they were not accompanied by a Land Agent. PW - 1 testified that he never went to an Advocate called Osoro, but only met M/s. Caroline Njogu Advocate. PW - 1 stated that he bought the land from Obadiah and that the Advocate was Caroline. PW - 1 further testified that he was given the Title Deed by Caroline. PW - 1 stated that the Advocate conducted an official search of the land, but it turned out to be a fake Title Deed. PW - 1 confirmed that Advocate Caroline had shown him the search before she prepared the Sale Agreement. 50.PW - 1 testified that he was shown a document by Caroline to indicate that the land belonged to Obadiah, and referred to an official search dated 10th March, 2014, which he prayed not to have seen. PW - 1 further stated that he paid the purchase price to Obadiah through the Imperial Bank at Diani. C. Re - Examination of PW - 1 by Mr. Tembe Advocate. 51.PW - 1 stated that he had been introduced to Caroline Advocate by a person called Richard. PW - 1 testified that Caroline was his Advocate. PW - 1 further stated that he had never met nor seen Obadiah at all, and that he would only go through him by way of Caroline Advocate. PW - 1 testified that he transacted everything through Caroline Advocate. PW - 1 stated that he had been shown documents indicating that the land belonged to Obadiah, and that at the time Caroline Advocate had indicated that the documents were lawful, which they presented to the bank. 52.PW - 1 further testified that it was upon presentation to the bank that they discovered the documents were irregular and fraudulent. PW - 1 confirmed that the documents were in the English language. PW - 1 stated that he paid the purchase price to Caroline Advocate. 53.The Plaintiffs called their case to a close. V. The 1st Defendant case 54.The 1st Defendant opposed the claim through an Amended Statement of Defence and Counter - Claim dated 29th August, 2017 through M/s. Ngigi & Co. Advocates. The 1st Defendant stated that save and except what was expressly admitted herein, the 1st Defendant denied each and every singular allegation of fact contained in the Amended Plaint as though each had been set out singularly and traversed in seriatim. The 1st Defendant admitted the descriptive parts of paragraphs 1, 2, 2A, 2B, 2C, and 2D of the Amended Plaint. 55.The 1st Defendant denied the contents of paragraph 3 of the Amended Plaint and put the Plaintiffs to strict proof thereof. 56.The 1st Defendant was a stranger to the averments contained in paragraphs 3A, 3B(a)–(d), 4, and 4A of the Amended Plaint and was therefore unable to respond to the same. The Plaintiffs were otherwise put to strict proof thereof. The 1st Defendant admitted the contents of Paragraph 4B of the Amended Plaint but added that the Plaintiffs’ entry into the suit property had been illegal and/or unlawful because they held no good title to the suit property. 57.The 1st Defendant was a stranger to the averments contained in Paragraphs 5 and 5A of the Amended Plaint and was therefore unable to respond to the same. The Plaintiffs were otherwise put to strict proof thereof. The 1st Defendant was a stranger to paragraphs 6 and 6(a)–(c) of the Amended Plaint, save for the admission made by the Plaintiffs to the effect that fraud had indeed been committed in the manner in which the Plaintiffs procured a title to the suit property. The 1st Defendant was a stranger to the averments contained in paragraphs 7, 7(a)–(c), and 8 of the Amended Plaint and was therefore unable to respond to the same. The Plaintiffs were otherwise put to strict proof thereof. 58.In response to paragraph 9 of the Amended Plaint, the 1st Defendant denied that it was a trespasser upon the suit property as alleged or at all and put the Plaintiffs to strict proof thereof. Further, no demand or notice to sue had been served upon the Defendant as required by law. The jurisdiction of the Honourable Court was admitted. The Defendant admitted the contents of paragraph 11 of the Amended Plaint. 59.Without prejudice to the foregoing, the 1st Defendant reiterated the averments in its Amended Defence and Counter - Claim as follows: 60.The Plaintiff by way of Counter - Claim was a limited liability company incorporated pursuant to the provisions of Cap. 486, Laws of Kenya, having its registered offices in Nairobi and elsewhere within the Republic of Kenya. The 2nd and 3rd Defendants were male and female adults respectively of sound mind residing and/or working in Diani, Kwale County, within the Republic of Kenya. The 4th Defendant was a public officer responsible for, inter alia, the registration of all dealings in land within Kwale County. The 5th Defendant was the Attorney General of the Republic of Kenya, sued as the principal legal adviser to the Government of Kenya and the person authorized by law to represent the Government in court proceedings. 61.The Plaintiff averred that it was and had been registered as the absolute and indefeasible owner of the property known as Kwale/Galu Kinondo/397, measuring approximately 1.4 hectares, having purchased the same for valuable consideration from William Njoroge Mbote in or about October, 1980. The Plaintiff stated that it had since been in possession of the suit property and had permitted a church and a kiosk to be put up and operated from the suit property. The Plaintiff averred that it had established that sometime in October, 2012, the 1st Defendant (Obadiah Kioko Kavinya) had colluded with the 4th Defendant to fraudulently, illegally, unlawfully, irregularly and/or wrongfully procure registration of the suit property in his name. 62.The Plaintiff further stated that the 1st Defendant had proceeded to illegally, fraudulently, unlawfully, irregularly and/or wrongfully sub - divide the entire suit property into resultant parcels known as Kwale/Galu Kinondo/2366, 2367, and 2368 (Hereinafter referred to as “The Sub - divisions”). 63.The Plaintiffs relied on the following particulars of fraud and illegality on the part of the 1st Defendant:-a.That the 1st Defendant had procured, through illegal and underhand means, a title deed in respect of the suit property knowing that the Plaintiff was the bona fide and registered owner thereof.b.That the 1st Defendant had fraudulently and deliberately procured registration of the suit property in his favour knowing that the Plaintiff was notoriously in possession thereof.c.That the 1st Defendant had illegally sub - divided the suit property into the three subdivisions. 64.The Plaintiffs relied on the following particulars of collusion and fraud on the part of the 1st and 4th Defendants:-a.The 4th Defendant had permitted the 1st Defendant to be registered as the owner of the suit property without due regard to the records in the Land Registry and/or knowing that the Plaintiff was the registered owner thereof.b.The 1st and 4th Defendants had failed to have due regard to the Plaintiff’s registered interest in the suit property.c.The 4th Defendant colluded with the 1st Defendant to issue to the 1st Defendant a title over the suit property while the original title issued to the plaintiff has not been cancelled and/or surrendered to the 4th Defendant.d.That the 4th Defendant misrepresented to the plaintiff's directors that the register in respect of the suit property was lost, misplaced and/or could not be traced yet he knew or ought to have known that that was not true.e.The 4th Defendant permitted subdivision of the suit property to be carried out by the 1st Defendant yet he knew and/or ought to have known that the 1st Defendant was not the bona fide owner of the suit property 65.The Plaintiff stated that the 2nd and 3rd Defendants also colluded with the 1st Defendant to fraudulently and/ or illegally acquired the purported sub - division number Kwale/Galu Kinondo/ 2368. 66.The Plaintiff relied on the following particulars of collusion and/ or fraud and/or illegality on the part of the 2nd and 3rd Defendants:-a.The 1st and 2nd Defendant procured registration of the said sub - division while they knew and/or ought to have known that the Plaintiff is notoriously in possession thereof. 67.In the foregoing, the Plaintiff averred that the title issued to the 1st Defendant over the suit property and the resultant titles to the sub - divisions were invalid, null and void. The Plaintiff prayed for a declaration that it was the rightful and/or bona fide owner of the suit property and the Plaintiff to be restored by the 4th Defendant as the owner of the suit property. The Plaintiff averred that if the 1st, 2nd and 3rd Defendants’ illegal, fraudulent and/or irregular titles over the suit property are allowed to stand, the Plaintiff stands to suffer irreparably. 68.The Plaintiff prayed for revocation and/or cancellation of title numbers Kwale/Galu Kinondo/2366,Kwale/Galu Kinondo/2367 and Kwale/Galu Kinondo/2368 which were the purported sub - divisions over the entire suit property and any material or entry in the register which was in the name of 1st, 2nd and 3rd Defendants in respect of the suit property. The Plaintiff averred that on 18th August, 2014, the 1st, 2nd and 3rd Defendant’s agent, employees and/or servants entered the suit property and demolished part of the perimeter wall constructed by the plaintiff and that they are also threatening to demolish the church and the kiosk thereon and to evict the Defendant’s agents, servants and/or employees from the suit property. 69.The Plaintiff was apprehensive that unless the 1st, 2nd and 3rd Defendants were restrained by this Honourable Court, they may deal with the suit property (and the purported sub - divisions number Kwale/Galu Kinondo/2368, 2367 and 2366 in a manner that is adverse to the Defendant’s interest in the suit property and if that happens the Defendant stood to suffer irreparably. The Plaintiff therefore prayed for a permanent injunction to restrain the 1st, 2nd and 3rd Defendants whether by themselves or through their servants, agents and/or employees or through anyone deriving title through them from entering, occupying, leasing, transferring, charging, selling and/or from demolishing the structures on and/or evicting the Defendant’s agents, servants and/or employees or in any manner whatsoever dealing with the suit property and/or the purported sub - divisions. 70.The Plaintiff averred that despite demand and notice of intention to sue having been given, the Defendants had refused and/or neglected to rectify the land register and to restore the Plaintiff as the owner of the suit property. 71.The 2nd Defendant/Plaintiff by way of Counter - claim prayed for Judgment entered against the Defendants for the following orders:a.The Amended Plaint be dismissed.b.A declaration that Plaintiff is the rightful and/or bona fide owner of the property known as Kwale/Galu Kinondo/397.c.A declaration that the purported registration of the 1st Defendant as the owner of Plot Number Kwale/Galu Kinondo/397 and the resultant sub - divisions number Kwale/Galu Kinondo/2366, Kwale/Galu Kinondo/2367 and the registration of the 2nd and 3rd Defendants as owners of Kwale/Galu Kinondo/2368 is invalid, null and void.d.An order compelling the 4th Defendant to revoke and/or cancel the titles to Plot Numbers Kwale/Galu Kinondo/397,Kwale/Galu Kinondo/2366, Kwale/Galu Kinondo/2367 registered in the name of the 1st Defendant and Kwale/Galu Kinondo/2368 registered in the name of the 2nd and 3rd Defendants.e.An order compelling the 4th Defendant to rectify the land register and to register and/or restore the Plaintiff as the owner Plot Number Kwale/Galu Kinondo/397.f.A permanent injunction restraining the 1st, 2nd and 3rd Defendants whether by themselves or through their servants, agents and/or employees or through anyone deriving title through them from entering, occupying, leasing, transferring, charging, selling and/or from demolishing the structures on and/or evicting the defendant's agents, servants and/or employees or in any manner whatsoever dealing with the property known as Plot Number Kwale/Galu Kinondo/397.g.The Defendants do jointly and severally pay the costs of the suit plus interest 72.The 1st Defendant’s Counter - Claim was heard on 30th October, 2019 wherein the 1st Defendant called DW - 1 at 12.00Noon who testified as follows:- A. Examination in Chief of DW - 1 by Ms. Ngigi Advocate. 73.DW - 1 testified in English language and under oath. He was called - Philip Waithaka Kinuthia. He told the court that he recorded his witness statement on 2nd May, 2019, which he wished to adopt as his evidence‑in‑chief. DW - 1 testified that he was a director of the Defendant’s Company and that the other directors were:-i.M/s. Monica Kinuthia.ii.Mr. Timothy Kinuthia.iii.M/s. Carol Kinuthia.iv.M/s. Ruth Kinuthia.v.Mr. Mwangi Kinuthia. 74.DW - 1 stated that he knew the land known as Kwale/Galu Kinondo/397, It belonged to them. It had been purchased by his late father, Stephen Kinuthia, who was a director of Kinuthia Holdings Ltd, on 23rd October, 1980. DW - 1 testified that his father was now deceased. DW - 1 further stated that he had a copy of the Title Deed and wished to produce the documents filed on 1st February, 2016 as Defence Exhibits 1 to 13. DW - 1 confirmed that he had an official search done on 21st June, 2004. DW - 1 testified that he knew the suit against Kinuthia Holdings Limited had been withdrawn by the Plaintiffs. In their Counter - Claim they had sued:-a.Mr. Obadiah Kioko Kavivya.b.Mr. Marcello Perrucchetti.c.M/s. Marilena Beli.d.The Registrar of Titles, Kwale &e.The Attorney General. 75.DW - 1 stated that they had sued the 1st Defendant because he had unlawfully sub ‑ divided the land. DW - 1 testified that in June, 2014, their agents who were on the land informed them that people were coming to loot the land. DW - 1 further stated that there was a church which they had allowed to use the land, as well as a shade used by taxi men while waiting for their customers. DW - 1 confirmed that the photographs he had produced showed the church, which was a makeshift structure with mabati walls and a makuti‑thatched roof. 76.DW - 1 stated that the place where taxi drivers used was made of sticks. DW - 1 testified that when they learnt there were people looking at the land, they went to the Registrar at Kwale and conducted a search. DW - 1 further stated that they were told the Green Card was missing, and they undertook the process of opening a new Green Card. Yjey applied for a Deed of Indemnity. DW - 1 confirmed that a new Green Card was opened upon advertisement in the Kenya Gazette, and thereafter a new Green Card was issued. DW - 1 testified that around August, 2014, their agents again informed them that people had delivered building materials to the site. DW - 1 further stated that they discovered that those people had given their agents, the church, a letter dated 8th August, 2014 requiring them to vacate the land on the basis that the land had been sold. 77.DW - 1 stated that they went back to the Land Registrar at Kwale. DW - 1 testified that they were sued for trespass by the Plaintiffs in this case. DW - 1 further stated that they were shown a Sale Agreement in which Obadiah Kioko Kavivya had allegedly sold the land known as Kwale/Galu Kinondo/397 to the Plaintiffs. DW - 1 testified that the Plaintiffs were purchasing a portion of the land. DW - 1 confirmed that there was an illegal sub‑division that had been done by Obadiah Kavinya Kioko, resulting in parcels numbers Kwale/Galu Kinondo/2367, 2366 and 2368 respectively. 78.DW - 1 stated that in the Green Cards he had produced, the registered owner of three sub - divisions was Obadiah Kioko Kavinya. DW - 1 testified that he also saw in court a Title Deed for Plot No. 397 in the name of Obadiah Kioko. DW -1 confirmed that at no time had they sold Plot No. 397 to Obadiah Kioko Kavinya. DW - 1 stated that the Title Deed issued to Obadiah was dated 11th October, 2012, while the Title Deed in the name of Kinuthia Holdings Limited. was dated 23rd October, 1980. DW - 1 further testified that the map sheet he had produced showed the three sub - divisions, which had been done in Mombasa. 79.DW - 1 stated and refuted that Obadiah Kioko’s registration was fraudulent because they had never sold the plot to him. DW - 1 testified that they had sued the Plaintiffs because the Plaintiffs did not carry out due diligence, despite the fact that they had agents on the land. DW - 1 further stated that the Sale Agreement had been prepared by J. Thongori Advocates, who were the Plaintiffs’ advocates. DW - 1 confirmed that the letter written to the Church, who were their agents, was issued on 8th August, 2014. 80.DW - 1 stated that he had seen the Title Deed produced by the Plaintiffs, which was issued on 31st July, 2014. DW - 1 testified that the letter to the church had been issued barely a month later, and that the Plaintiffs ought to have asked for vacant possession beforehand. DW - 1 further stated that the three sub - divisions were fraudulent. DW - 1 testified that they wanted the court to revoke the Title Deed in the name of Obadiah Kioko Kavinya together with the subsequent sub - divisions. DW - 1 confirmed that he also wanted the court to cancel the Plaintiffs’ Title Deed and for the register to revert back to Kinuthia Holdings Limited. 81.DW - 1 stated that they had sued the Registrar of Titles because one could not transfer land without the involvement of the Registrar. DW - 1 testified that he had not been shown how Obadiah Kioko obtained Title, nor had he been shown any documents that the Registrar relied upon to issue the Title in the name of Obadiah Kioko. DW - 1 further stated that they had been given three uncertified Green Cards for the sub - divisions. DW - 1 confirmed that they sought to be paid costs for the Counter ‑ Claim by the Defendants they had sued. B. Cross Examination of DW - 1 by Mr. Muliro Advocate. 82.DW - 1 stated that the Registrar of Titles had copies of all the records of land and that the Registrar authored the documents. DW - 1 testified that from the documents, the Plaintiffs had acquired Plot No. Kwale/Galu Kinondo/2368 from Obadiah Kioko Kavinya. DW - 1 further stated that Plot No. 2368 was a s.ub - division of Plot No. 397, which Obadiah was alleged to have had a Title to. DW - 1 testified that it was his evidence that Obadiah had obtained Title to Plot No. 397 fraudulently from Kinuthia Holdings Limited. DW - 1 confirmed that they had sued the Plaintiffs because the Plaintiffs ought to have known, and that from the record it showed Obadiah Kioko had Title to Plot No. 2368, which the Plaintiffs acquired by purchasing from him. 83.DW - 1 further stated that he was aware the land had been sub - divided and that they had agents on the ground who occupied Plot No. 2368. DW - 1 confirmed that he had the letter from the Plaintiffs to the church asking them to vacate the land. DW - 1 stated that it was for that reason that he suspected the Plaintiffs had colluded in the fraud. C. Cross Examination of DW - 1 by Mr. Mwandenje Advocate. 84.DW - 1 stated that the church had received a letter. DW - 1 testified that he saw the Sale Agreement in the court papers. DW - 1 further stated that they had filed a report with the police, although it was not part of their list of documents. 85.On 30th October, 2019, the 1st Defendant marked their case closed through their advocate Ms. Ngigi Advocate. VI. The 2nd Defendant’s case 86.The 2nd Defendant opposed the Plaintiffs’ claim through a Statement of Defence dated 20th September, 2017 though the Law firm of Messrs. Morara, Onsongo & Company Advocates. The 2nd Defendant averred that save in what was expressly admitted herein, the 2nd Defendant denied each and every allegation contained in the Amended Plaint as though they had been set out verbatim and traversed seriatim. The 2nd Defendant admitted the contents of Paragraphs 1, 2, 2B, 2C, and 2D of the Amended Plaint in so far as they were merely descriptive of the parties herein. 87.The 2nd Defendant admitted the contents of Paragraph 3 of the Amended Plaint. In response to the contents of Paragraphs 3A and 3B of the Amended Plaint, the 2nd Defendant stated that he had no knowledge of the facts enumerated therein and the particulars thereof, thereby putting the Plaintiffs to strict proof. The 2nd Defendant, in reply to Paragraphs 4, 4A, and 4B of the Amended Plaint, stated that he was a stranger to the allegations contained therein, as his contact with the Plaintiffs had ceased at the point of sale of the suit property, thereby putting the Plaintiffs to strict proof thereof. 88.The 2nd Defendant denied the contents of Paragraphs 5 and 5A of the Amended Plaint and stated that he had no knowledge of the facts contained therein, thereby putting the Plaintiffs to strict proof thereof. The 2nd Defendant denied the contents of Paragraph 6 of the Amended Plaint and distanced himself from the particulars of fraud enumerated therein, thereby putting the Plaintiffs to strict proof of the same. The 2nd Defendant was a stranger to the averments contained in Paragraph 7 of the Amended Plaint, as they were issues touching on the Advocate ‑ Client relationship and confidentiality. 89.The 2nd Defendant stated that he had no knowledge of any fraud or breach of duty of care, nor of the accompanying loss and damages as alleged by the Plaintiffs in Paragraph 8 of the Amended Plaint, thereby putting the Plaintiffs to strict proof of the same. Demand and Notice of Intention to sue had not been issued against the 2nd Defendant. The jurisdiction of the Honourable Court was admitted. Paragraph 11 of the Amended Plaint was admitted, as there was no other suit pending between the parties herein over the same subject matter. 90.For reasons wherefore the 2nd Defendant prayed that the Plaintiffs’ Amended Plaint be dismissed with costs. 91.In support of their case, the 2nd Defendant filed a List of the following documents dated 7th December, 2021. These were:-a.Title Deed to Rolf Robert Meier issued on 19th October, 2006 in respect to all that parcel of land known as Kwale/Galu Kinondo/397.b.Pin Certificate No. A002478645D for Rolf Robert Meier.c.Certificate of Official Search dated 6th September, 2012.d.Certified copy of the Green Card in respect of the land known as Kwale/Galu Kinondo/397.e.Transfer of land Registered on 8th October, 2012 in favour of Obadiah Kioko Kavinya for land known as Kwale/Galu Kinondo/397.f.Title Deed for title no. Kwale/Galu Kinondo/397 in the name of Obadiah Kioko Kavinya issued on 11th October, 2012.g.Copy of Passport for Rolf Robert Meier.h.Stamp Duty Receipt from the Kenya Commercial Bank dated 8th October, 2012. 92.It is imperative to note that the 2nd Defendant neither testified nor called any witness in support of their case. VII. The 3rd Defendant’s case 93.Through the Law firm of Messrs. Muriithi , Kireira & Company Advocates, the 3rd Defendant responded to the Plaintiffs’ claim and averred as follows:-a.Save and except what was herein admitted, the 3rd Defendant denied each and every allegation contained in the Amended Plaint as if the same had been set forth hereunder and traversed seriatim.b.The 3rd Defendant admitted the descriptions of the parties set out in Paragraphs 1, 2, 2A, 2B, 2C, and 2D of the Amended Plaint, except that the 3rd Defendant’s address of service for purposes of the proceedings.c.The 3rd Defendant denied in toto the contents of paragraph 3 of the Amended Plaint and put the Plaintiffs to strict proof thereof.d.The 3rd Defendant further stated that the purchasers and the vendor had met long before they went to the 3rd Defendant’s offices to give her instructions.e.The 3rd Defendant averred that the vendor was a stranger to her and that they had never met. The purchasers came to her offices in the company of the vendor’s advocates and their agents.f.In response to Paragraph 3A of the Amended Plaint, the 3rd Defendant stated that she had received instructions from the Plaintiffs to act as their advocate in the purchase of the suit property, and that the vendor also had his own advocate.g.The 3rd Defendant further stated that the purchasers and the vendor had met long before they both went to her offices to give her instructions.h.The 3rd Defendant also stated that by the time she was being instructed, the purchasers had already seen the land and agreed on all the terms of the sale with the vendor; therefore, when they came to her office, everything had already been agreed upon.i.Further, in response to paragraphs 3A and 3B of the Amended Plaint, the 3rd Defendant stated that she had conducted due diligence as the Advocate acting for the Plaintiffs within the scope of the advocate‑client relationship and put the Plaintiffs to strict proof if they deemed otherwise.j.In response to Paragraph 4 of the Amended Plaint, the 3rd Defendant stated that the monies had been wired to the vendor, his advocates, and his agents, and that she had not retained any of the money.k.In response to Paragraphs 4A, 4B, 5, and 5A of the Amended Plaint, the 3rd Defendant stated that she was a stranger to the allegations contained therein and that her contact with the Plaintiffs had ceased after the sale, thereby putting the Plaintiffs to strict proof thereof.l.The 3rd Defendant vehemently denied the contents of Paragraph 6 of the Amended Plaint and further put the Plaintiffs to strict proof thereof.m.In response to Paragraph 7 of the Amended Plaint, the 3rd Defendant stated that the duty of care and due diligence had been duly conducted, thereby putting the Plaintiffs to strict proof thereof.n.In response to Paragraph 8 of the Amended Plaint, the 3rd Defendant denied any breach of duty of care or loss and damages as alleged by the Plaintiffs, thereby putting the Plaintiffs to strict proof thereof.o.Paragraph 9 of the Amended Plaint was vehemently denied, and the Plaintiffs were put to strict proof thereof.p.The 3rd Defendant admitted the jurisdiction of the Honourable Court.q.The contents of Paragraphs 10 and 11 of the Amended Plaint were admitted. 94.The 3rd Defendant prayed that the Plaintiffs’ amended Plaint be dismissed with costs. 95.The 3rd Defendant testified as DW - 2 on 1st July, 2024 wherein she testified that: - A. Examination in chief of DW - 2 by Mr. Muriithi Advocate. 96.DW - 2 was sworn and testified in the English language. She was called Caroline Nyambura Njogu. She was an Advocate of the High Court of Kenya practicing Law under the name of the law firm of Messrs. J. Thongori Advocate in Diani, Kwale. DW - 2 testified that she had recorded a witness statement dated 2nd June, 2021. DW - 2 further stated that she had filed a List of Documents on 2nd June, 2021 comprising two documents. DW - 2 confirmed that she had also filed a Supplementary List of Documents dated 17th March, 2024. DW - 2 testified that she had filed a Defence and wished to adopt her statements as part of her evidence in this matter. 97.DW - 2 stated that the Plaintiff had come to her offices sometime in the month of March, 2014. DW - 2 testified that the Plaintiff had been referred to her by the manager of Imperial Bank, Mr. Richard, for whom she acted for in other matters. DW - 2 further stated that at about 12.00 noon, the Plaintiff together with four agents and a counsel came to her offices and requested that a Sale Agreement be prepared. DW - 2 testified that by then an official search had already been undertaken. DW - 2 stated that Advocate Mr. Nyamosi Mogaka requested her to prepare the documents, indicating that they were to fly back to their country. 98.DW - 2 confirmed that they agreed on the terms and she prepared the sale agreement. The purchaser had some cheques and signed the agreement. DW - 2 further testified that she was later informed that the Vendor had changed the lawyer, and therefore she had to change the details. DW - 2 stated that she forwarded the draft agreements to the lawyer for the Vendor through a letter dated March, 2014. DW - 2 stated that they had prepared a blank transfer which was signed together with the Land Control Board application forms. DW - 2 testified that they had forwarded the cheques and that the sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1, 500, 000.00/=) was paid to the Vendor. DW - 2 further stated that the land was to be sub - divided. 99.DW - 2 stated that the consideration for the transaction was for a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13,500,000/=). DW - 2 testified that an initial payment of a sum of Kenya Shillings Four Million (Kshs. 4,000,000/=) was made as authorization. DW - 2 further stated that the land was to be sub – divided to hive off the portion to be sold off to the purchase. The land measured 1.4 hectares. DW - 2 testified that the purchaser was to take 1.5 acres, but at first the sub - division was improperly done. It was later on rectified. DW - 2 confirmed that after the whole transaction they were given the completion documents, they were issued with the Title Deed, and the entire purchase price was paid. 100.DW - 2 stated that it was upon taking possession that they discovered there were other people on the ground who were claiming ownership of the land. DW - 2 testified that they conducted an official search and confirmed that they had paid the purchase price to the Vendor, one Mr. Obadiah Kioko Kavivya. DW - 2 further stated that they had received the completion documents from the Vendor’s Advocates. 101.DW - 2 referred to the contents of her statement and testified that she had conducted the official search and obtained the information that the documents were genuine. DW - 2 stated that there was nowhere she could have colluded with the other Defendants. DW - 2 confirmed that the best she could do in the circumstances was to conduct an official search. DW - 2 further testified that the Vendor and the purchaser had walked into her offices together. B. Cross Examination of 3rd Defendant by Mr. Tembe Advocate. 102.DW - 2 testified that she was a conveyancing Advocate. DW - 2 stated that the Vendor could obtain a copy of the certificate of Title to enable them to conduct an official search before purchasing the land. DW - 2 testified that it was after the Plaintiffs went to the ground that they discovered there were other people already on the land claiming ownership. DW - 2 stated that they also went to the ground and that another lawyer, Mr. Mogaka Advocate, thereafter took over the matter. DW - 2 testified that they conducted a personal search, which she had not mentioned in her statement, and from that search she found that the land belonged to Obadiah Kioko Kavinya. 103.DW - 2 testified that even the personal search had disclosed that the land belonged to Obadiah Kioko Kavinya. DW - 2 stated that the Green Card was not displayed in court and that the Green Card showing Obadiah as the owner had not been produced as evidence. DW - 2 further testified that where there were competing parties over the same land, it showed that one of them was not genuine. DW - 2 referred to the Title Deed issued on 11th October, 2012 in the name of Obadiah and the competing Title Deed dated 23rd October, 1980 in the name of the 1st Defendant. DW - 2 stated that she had not known of any competing Title at that time. 104.DW - 2 testified that she had prepared the Sale Agreement for both the Vendor and the Purchaser, and that it was Advocate Mogaka who was involved. DW - 2 stated that the Vendor and Purchaser were supposed to be called to testify. DW - 2 further testified that the testimony of the Advocate would have been valuable to the matter. C. Re - Examination of 3rd Defendant by Mr. Muriithi Advocates. 105.DW - 2 confirmed that when the Purchaser and agents went to her office, they brought with them a copy of the Title. DW - 2 stated that it was this copy that she used to transact the official search. DW - 2 further testified that before that time she had not been privy to the existence of another competing Title Deed. 106.The 3rd Defendant marked her case closed on 1st July, 2024 through her counsel Mr. Muriithi Advocate. VIII. The 4th and 5th Defendant’s case 107.Through the State Law office, the 4th and 5th Defendants filed a Defence to Counter - Claim dated 29th September, 2014. On 3rd March, 2020 the 4th and 5th Defendants marked their case closed through their Counsel Mr. Mandenje Advocate. IX. Submissions 108.Upon the closure of the 1st & 2nd Plaintiffs and the 1st, 2nd, 3rd, 4th & 5th Defendants case, the Court directed that each party files their written submissions on 1st July, 2024. Pursuant to that, the Plaintiffs, 1st, 3rd 4th & 5th Defendants complied accordingly. 109.It is instructive to note that despite of all these, the 2nd Defendant never participated at all in this process. By the time of penning down the Judgement, the Honourable Court could not access any written submissions from the 2nd Defendant. 110.On 23rd September, 2024 the court reserved the Judgment on notice. Eventually, it delivered its Judgement on 19th June, 2026 accordingly. A. The Written Submission by the 1st & 2nd Plaintiffs 111.The 1st & 2nd Plaintiffs through the Law firm of Messrs. John Bwire & Associates Advocates filed their written submissions dated 29th July, 2020. Mr. Tembe Advocate commenced his submissions by stating that this was a dispute bringing into light, a fraudulent scheme between the 2nd Defendant in cohort with the 4th Defendant and/or its officers, with the 1st and 3rd Defendants being at the center stage to streamline the entire process. According to the Learned Counsel it was a deliberate scheme since as they would demonstrate in these submissions:-a.The Plaintiffs were diligent by hiring the services of the 3rd Defendant to assist them by applying due care and skill expected of them as professionals to secure their interests in the transaction;b.The Plaintiffs relied on the 4th Defendant's records and approvals before proceeding to purchase a portion of the suit property;c.Relying on the 4th Defendant’s, records and approvals and the representations by the 2nd Defendant, the Plaintiffs were bona fide purchasers for value without notice of any fraud on the suit land. 112.The Learned Counsel further submitted that in these submissions, they would rely on the following documents;a.The Plaintiff’s amended Plaint dated 25th April, 2017;b.The 1st Defendant’s amended Defence and Counter - Claim dated 29th August, 2017 and filed on even date;c.The 2nd Defendant’s statement of Defence dated 20th September, 2017 and filed on 15th September, 2017;d.The Plaintiff’s list of documents dated 14th August, 2014 including supplementary list of documents filed on 15th October, 2018; ande.The Defendant’s witness statement filed on 2nd May, 2019. 113.On the Plaintiffs’ gravamen, the Learned Counsel submitted that in the amended Plaint the Plaintiffs stated that they were introduced to the 1st Defendant as the potential Vendor. The 1st Defendant was then living in Nairobi. Before proceeding to transact, on 10th March, 2014 the Plaintiffs carried out and obtained a Certificate of Official search on the mother title being land reference Numbers Kwale/Galukinondo/397 which showed that on 11th October, 2012 the 1st Defendant was registered as the absolute owner of the parcel Kwale/GAUKINONDO/397. The certificate of official search and title had been produced as Plaintiff Exhibits Numbers 5 and 1 respectively. 114.Relying on the said documents, on 14th March, 2014 the 1st & 2nd Plaintiffs and the 2nd Defendant entered into a sale agreement for the purchase of a portion of the parcel Kwale/GAUKINONDO/397 at a contractual fee (read consideration) of a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13, 500, 000/=) which sum was paid to completion. The Agreement had been exhibited in Court as well. The parties embarked on the sub - division of the main parcel Kwale/Galukinondo/397 as shown on the Mutation Form from the land registry after obtaining all the approvals from the relevant authorities including the 4th Defendant herein. 115.Consequently, the parcels Kwale/Galukinondo/ 2366, Kwale/Galukinondo/ 2367 and Kwale/Galukinondo/ 2368 resulted from the said sub - division. The 2nd Defendant transferred the portion Kwale/Galukinondo/2368 to the Plaintiffs as agreed. Soon after the Plaintiffs took possession of the Kwale/Galukinondo /2368, the 1st Defendant appeared claiming to be the owner of the whole parcel of land LR No. Kwale/Galukinondo/397 prompting the Plaintiffs to file this suit, citing the 1st Defendant as the trespassers on their property. According to the Learned Counsel, this was what had precipitated the dispute before the Honourable Court. 116.On the 1st Defendant’s case, the Learned Counsel submitted that the 1st Defendant denied the Plaintiffs’ claim and instead raised a Counter - Claim vide its amended Statement of Defence and Counter – Claim dated 29th August, 2017. In particular, the 1st Defendant disputed that the Plaintiffs obtained a good title to the suit property and/or portion thereof. In the Counter - Claim, the 1st Defendant accused the Plaintiffs and the rest of the Defendants of colluding to fraudulently sale and sub - divide parcel Kwale/Gaukinondo/ 397. Consequently, the 1st Defendant urged the Honourable Court to order for a cancellation of the portions Kwale/Galukinondo /2366, Kwale/Galukinondo/2367 and Kwale/Galukinondo /2368 respectively. 117.On the 2nd Defendant’s case, the Learned Counsel submitted that the 2nd Defendant filed its Statement of Defence on 25th September, 2017 wherein it essentially denied the Plaintiffs' claim and made no averment particularly as to whether the title documents registered in its name were fraudulently procured or not. Instead, the 2nd Defendant pleaded that their relationship with the Plaintiffs ceased at the point of sale of the suit property, essentially turning his back on the Plaintiffs. For the record, the 3rd and 4th Defendants failed to file a defence despite being afforded the opportunity and summons being issued against them. 118.The Learned Counsel relied on the following two ( 2 ) issues for its determination. Firstly, whether the Plaintiffs were innocent purchasers for value without notice of defect of title. The Learned Counsel submitted that the Plaintiffs had pleaded being innocent purchasers for value without notice of defect of title, of a portion of the Kwale/Galukinondo/397 from which Kwale/Galukinondo/ 2368 was hived off and/or sub-divided. From the evidence tendered before the Court, the Plaintiffs had shown that they not only carried out due diligence before purchasing the property, but they also followed all the laid down legal procedures until the 4th Defendant issued a title deed for the Kwale/Galukinondo/2368. 119.According to the Learned Counsel, before issuance of the title to the portion Kwale/Galukinondo/2368, the 4th Defendant never raised any issue as to the legality of the mother title (Kwale/Galukinondo/397) nor the legal processes in the sub-division and transfer of the suit property. It was now trite that for one to invoke the doctrine of innocent purchaser for value without notice, the tests espoused in the Ugandan Court of Appeal of “Katende – Versus - Haridar & Company Limited [2008] 2 E.A.173” have to be met. The Court held as follows:-“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that:a.he holds a certificate of title;b.he purchased the property in good faith;c.he had no knowledge of the fraud;d.he purchased for valuable consideration;e.the vendors had apparent valid title;f.he purchased without notice of any fraud;g.he was not party to any fraud.A bona fide purchaser of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.”See also the case of Lawrence Mukiri v. Attorney General & 4 Others [2013] eKLR” 120.According to the Learned Counsel and as to whether the Plaintiffs had met the above tests was a matter of factual interrogations which had to be ascertained from the evidence tendered before the Honourable Court. In compliance with the above test and the provision of Sections 107 and 108 of the Evidence Act, Cap. 80 the Plaintiffs had adduced various evidence key amongst them:-a.Certificate of title to the mother title including green cards thereto;b.Certificate of official search or the mother title;c.The Agreement for sale;d.Mutation form and all other pre-requisite approvals for sub -division of the mother parcel;e.Title deed for the portion Kwale/gaukinondo/2368 after the sub - division;f.Payment details including copies of cheques and bank transfers as received by the 2nd Defendant and their Advocates; andg.A certificate of official search of the Kwale/Galukinondo /2368 after a successful transfer. 121.They had asked themselves whether the chain of the test in the “Katende Case (Supra)” was broken at any one point. What the Honourable Court could agree with them was that the Plaintiffs met all the above requirements, hence it was on the basis of the records in possession of the 4th Defendant that the 4th Defendant authorized the transaction, approved sub - division of the mother parcel and went further to issue a title document to the Plaintiffs. Any fraud if at all, could not be attributed to the Plaintiffs whom they had demonstrated followed the law to the latter. Worth to mention, was the fact that Obadiah Kioko Kavivya obtained his title way back in the year 2012 while the sale transaction took place in the year 2014. According to the Learned Counsel if there was fraud, it must be linked to the Plaintiffs back in the year 2012 when the mother title (Kwale/Galukinondo/397) was allegedly procured by the 2nd Defendant. This burden had not been discharged accordingly. 122.In the circumstances, the 1st Defendant were estopped from claiming that there was fraud in procuring the title to Kwale/Galukinondo/397 or subsequent subdivisions thereto, and at the very least, the Plaintiffs had not been shown to have participated in the fraud. To buttress on this point, they relied on the case of “Eunice Grace Njambi Kamall and another – Versus - The Hon. Attorney General and 5 Others Civil Suit No. 976 of 2012” where the court cited with approval, the case of “Flectcher – Versus - Peck 10 U.S 87 (1810)” to illustrate how other jurisdictions had handled the issue of sanctity of title and the rights of innocent third parties. Further in “Flectcher – Versus - Peck case (Supra)” Marshall J had this to say:-“If a suit be brought to set aside a conveyance obtained by fraud and the fraud be clearly proved, the conveyance will be set aside, as between the parties: but the rights of third persons who are purchasers without notice for a valuable consideration cannot be disregarded. Titles, which according to every legal test, are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe, If there be, any concealed defect arising from the conduct of those who had held the property long before he acquired it of which he had no.”notice that concealed defect cannot be set up against him 123.Marshall J went further to state as follows:-“He has paid money for a title good at law, he is innocent whatever may be the guilt of others and equity will not subject him to the penalties attached to that guilt. Titles would be insecure, and intercourse between man and man would be very seriously obstructed if this principle be overturned.” 124.According to the Learned Counsel their understanding of the above holding was that whereas an intending purchaser of a property was ordinarily expected to carry out due diligence to verify the details and particulars of the property, it could not be expected that the scope of such due diligence would extend beyond what the law provides as being sufficient e.g. official searches and inspection of survey records unless there is on the face of it, apparent need to carry out further investigation. 125.They asserted that the Plaintiffs were under no duty to trace the root title for the parcel Kwale/Galukinondo/397 other than the records within the possession of the 4th Defendant. 126.Secondly, on the 1st Defendant’s Counter - Claim, the Learned Counsel submitted that the 1st Defendant had raised a Counter - Claim and alleged fraud and/ or collusion on the part of the Plaintiffs and the rest of the Defendants (by way of original suit). An allegation of fraud was information specifically within the 1st Defendant’s knowledge, the duty of proof which lies upon the 1st Defendant under the provision of Sections 108 and 112 of the Evidence Act, Cap. 80. In any case, it had been held that the allegations of fraud attracted a higher standard of proof upon the party who alleged it which burden had not been discharged by the 1st Defendant. 127.The Counsel referred Court to the case of:- “Kinyanjui Kamau – Versus - George Kamau [2015] eKLR” the Court expressed itself as follows:-“.......It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo – Versus - Ndolo (2008) / KLR (G & F) 742 wherein the Court stated that: “.....We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases. namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...in cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” 128.According to the Learned Counsel, the Court of Appeal further amplified this position in the case of:- “Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR”, where Tunoi, JA.(as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved. and it is not allowable to leave fraud to be inferred from the facts.” 129.In the circumstances, in absence of any evidence that the Plaintiffs participated in the fraud, (which they had submitted could only be traced way back in the year 2012 during the acquisition of the title to the parcel Kwale/Galukinondo/397), the allegation held no water and must fail. At the very least, no evidence has been tendered to prove the allegations as against the Plaintiffs. 130.They further invited the Honourable Court to find guidance in the holding of the case of “Kuria Kiarie & 2 others – Versus - Sammy Magera [2018] eKLR” where the Court of Appeal dismissed the Defendant's Counter - Claim alleging fraud as against the Plaintiff where no evidence was tendered in proof of the allegations. 131.Thirdly, on whether the orders sought should issue. The Learned Counsel argued that the Plaintiffs were bona fide purchasers for value without notice of defect in title of the suit property. They had also submitted that despite raising the allegations of fraud or collusion by the Plaintiff and the rest of the Defendants, the 1st Defendant had placed no evidence before the Honourable Court to prove the allegations. The position therefore remained that the Plaintiffs obtained good title over a portion of the parcel Kwale/Galukinondo/397 even where the Honourable Court were to find and hold that the 2nd Defendant obtained title illegally. In view of the fact that the Honourable Court had directed for the revocation of the Plaintiff's title, they submitted that the proper Order was the refund of the purchase price to the Plaintiffs as prayed for under paragraph 2A of the Plaint, including damages. 132.In so submitting, they relied in the case of “Duncan Githiga Mwangi – Versus - Kanu Maendeleo Ya Wana-Wake Muranga Branch & 4 others [2019] eKLR” where the Defendants were Ordered to repay the purchase price to the Plaintiff who was found the bona fide purchaser for value of the suit property. The same remedy was upheld by the Court of Appeal in “Sukhdev Singh Laly – Versus - Philip Ojwang Kamau & 3 others [2018] eKLR” when it upheld the judgment of the trial Court which had ordered the Defendants to jointly and severally refund the Plaintiffs, the purchase price where the Land Registrar could not explain the circumstances leading to the issuance of two title deeds in respect of similar property. 133.In conclusion, the Learned Counsel earnestly urged the Honourable Court to find guidance in the above cited authorities to dismiss the 1st Defendant’s Counter Claim with costs, allow the Plaintiff's suit and order the Defendants to jointly and severally refund the Plaintiffs' purchase price as prayed in the Plaint B. The Written Submissions by the 1st Defendant 134.The 1st Defendant through the firm of Messrs. Waithera Ngigi & Company Advocates filed their submissions dated 20th September, 2024. M/s. Ngigi Advocate commenced her submissions by providing a background of the matter. She told the court that the 1st and 2nd Plaintiffs commenced this suit by way of a Plaint dated 14th August, 2014. The Plaintiffs later amended their pleadings and filed an Amended Plaint dated 25th April, 2017 seeking the following orders:a.A permanent injunction restraining the defendants by itself, its agents and/or servants from trespassing onto the Plaintiffs parcel of land known as Kwale/Galu Kinondo/2368measuring 0.60 HA.b.A declaration that the Plaintiffs are the absolute owners of land known as Kwale/Galu Kinondo/2368 measuring 0.60HA.c.In the alternative an order do issue against the 2nd, 3rd and 4th defendants jointly and severally compelling them to refund the purchase price paid to them by the Plaintiff.d.A mandatory injunction compelling the Defendant to forthwith pull down and remove any buildings and/or other structures build by the Defendant on the Plaintiffs parcel of land known as Kwale/Galu Kinondo/2368, measuring 0.60HA.e.General damages.f.Costs of the suit and interest.g.Any other relief this Honourable court may deem just and fair to grant 135.The Learned Counsel further submitted that the 1st Defendant, Kinuthia Holdings Limited, filed a Defence and Counter - Claim dated 20th August, 2014. The Defence was later Amended and an Amended Defence and Counter - Claim dated 29th August, 2017 was filed in court on 29th August, 2017. In the Counter - Claim, the 1st Defendant (who is the Plaintiff by way of Counter - Claim) sought for the following orders:-a.The Amended Plaint be dismissed.b.A declaration that plaintiff is the rightful and/or bona fide owner of the property known as Kwale/Galu Kinondo/397.c.A declaration that the purported registration of the 1st Defendant as the owner of Plot Number Kwale/Galu Kinondo/397 and the resultant sub - divisions number Kwale/Galu Kinondo/2366, Kwale/Galu Kinondo/2367 and the registration of the 2nd and 3rd Defendants as owners of Kwale/Galu Kinondo/2368is invalid, null and void.d.An order compelling the 4th Defendant to revoke and/or cancel the titles to Plot Numbers Kwale/Galu Kinondo/397, Kwale/Galu Kinondo/2366, Kwale/Galu Kinondo/2367 registered in the name of the 1st Defendant and Kwale/Galu Kinondo/2368 registered in the name of the 2nd and 3rd Defendants.e.An order compelling the 4th Defendant to rectify the land register and to register and/or restore the Plaintiff as the owner Plot Number Kwale/Galu Kinondo/397.f.A permanent injunction restraining the 1st, 2nd and 3rd Defendants whether by themselves or through their servants, agents and/or employees or through anyone deriving title through them from entering, occupying, leasing, transferring, charging, selling and/or from demolishing the structures on and/or evicting the Defendant’s agents, servants and/or employees or in any manner whatsoever dealing with the property known as Plot Number Kwale/Galu Kinondo/397.g.The Defendants do jointly and severally pay the costs of the suit plus interest 136.On the 1st Defendant’s testimony, the Learned Counsel submitted that Phillip Waithaka Kinuthia (DW - 1), a director of the 1st Defendant relied on his Witness Statement and the evidence which is already on record on behalf of the 1st Defendant (Kinuthia Holdings Limited). He produced the documents in the List of documents filed on 1st February, 2016 as 1st Defendant's exhibits 1-13. DW - 1 testified that the 1st Defendant purchased the suit property (Kwale/GALU KIINDO/397) measuring 1.4HA in the 1980s and a Certificate of title was issued to it on 23rd October, 1980, 1st Defendant Exhibit No. 8. DW - 1 also produced a Certificate of Search dated 21st June, 2004, evidencing that the 1st Defendant was the registered owner of the suit property as at that date. 137.DW - 1 stated that, with the 1st Defendant’s permission, there were structures on the suit property, a church which operated from a makeshift building and a shade for taxi operators as evidenced by the bundle of photographs produced as 1st Defendant exhibit No. 13. DW - 1 testified that in June, 2014, they were informed by their agents who were on site that there were people going into the property to check on it. That they immediately decided to visit the Kwale Lands Office to conduct a search but the Land Registrar, the 4th Defendant, by way of Counter - Claim, informed them that the Green card was missing and/or misplaced. 138.DW - 1 stated that they were advised by the Land Registrar to initiate the process of opening a new green card as evidenced by the Letter of Indemnity dated 9th June, 2014, the 4th Defendant's Letter dated 10th June, 2014 and Receipts for gazettement produced as 1st Defendant Exhibit Numbers 5, 6 and 7 respectively. DW - 1 testified that shortly thereafter, their agents informed them that there were building materials which had been deposited in the suit property and that a letter from J. Thongori Advocates dated 8th August, 2014 had been served upon the church members to vacate the suit property, the letter was produced as 1st Defendant Exhibit No. 11. 139.According to the Learned Counsel the 1st Defendant was then sued by the Plaintiffs for trespass. That that was when they discovered that there was a sale agreement (1st Defendant Exhibit No.1) in which the Plaintiffs had allegedly bought a portion of the suit property from the 2nd Defendant – Mr. Obadiah Kioko Kavivya (who was sued as the 1st Defendant by way of Counter - Claim). That the 2nd Defendant had illegally sub - divided the suit property into three ( 3 ) sub - divisions, that is,(Kwale/Galu Kinondo/2366, 2367, and 2368) as evidenced by exhibits produced as the 1st Defendant Exhibit Numbers 3, 4 and Map Sheet produced as Plaintiff Exhibit No. 10. DW - 1 stated that he also saw the title deed in respect of the suit property (Kwale/Galu Kinondo/397) which was in the name of the 2nd Defendant, Mr. Obadiah Kioko Kavivya issued on 11th October, 2012, produced as 1st Defendant Exhibit No. 2. DW - 1 testified that the 2nd Defendant’s (Obadiah Kioko Kavivya) registration was fraudulent because the 1st Defendant never sold the suit property to him. 140.The Learned Counsel submitted that the Plaintiffs did not conduct due diligence because the 1st Defendant’s had agents on the suit property who had structures thereon and operating from the suit property; the Plaintiffs only sought to have the 1st Defendant's agents removed from the suit property barely a week after purchasing it. That they should have sought for vacant possession beforehand. That his title deed held by the 2nd Defendant and the subsequent fraudulent subdivisions ought to be cancelled and the title to revert to the 1st Defendant. 141.DW - 1 further stated that the 1st Defendant had sued the Land Registrar (4th Defendant) because there was no document which the Land Registrar relied on to issue a title deed in favour of the 2nd Defendant. 142.On the law, the 1st Defendant produced a Certificate of Title that was issued to it on 23rd October, 1980 (1st Defendant Exhibit No. 8). It also produced a Certificate of Search dated 21st June, 2004 (1st Defendant Exhibit No.9) in respect of the suit property, Kwale/Galu Kindondo/397. They submitted that the 1st Defendant therefore proved on a prima facie basis that it was the lawful registered owner of the suit property. They were guided by the provision of Section 26 of the Land Registration Act (LRA) 2012 provided as follows:-“ 26. (1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the Proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except-(a)On the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 143.The 1st Defendant however pleaded the 2nd Defendant (Obadiah Kioko Kavivya) fraudulently, wrongfully, illegally and/or irregularly procured the registration of suit property in his name and then illegally sub - divided the suit property. 144.On whether the 1st Defendant (Plaintiff by way of Counter - Claim) proved fraud, illegality and/ or irregularity on the part of the Defendants (by way of Counter - Claim), the Learned Counsel submitted that the 1st Defendant filed a Counter - Claim against Obadiah Kioko Kavivya, Marcello Perruchetti, Marilena Belli, Registrar of Titles, Kwale and the Honourable Attorney General. On fraud/ illegality and collusion as against the 2nd and 4th Defendants, the Learned Counsel averred that the 2nd Defendant, Obadiah Kioko Kavivya, had been sued as the 1st Defendant by way of Counter - Claim. The 4th Defendant is the Land Registrar, Kwale. 145.Under the contents of Paragraph 20 of the Amended Defence and Counter - Claim, the 1st Defendant had pleaded and particularized fraud and illegality against the 2nd Defendant. It had also pleaded collusion, fraud and/or illegality on the part of the 2nd Defendant and the 4th Defendant. The 1st Defendant averred that the 2nd Defendant obtained a title deed in respect of the suit property through underhand means knowing that the 1st Defendant was the bona fide registered owner of the suit property and was in possession. He then proceeded to illegally subdivide the suit property. As against the 4th Defendant, the Kwale Land Registrar, the 1st Defendant pleaded that he permitted the 2nd Defendant to be registered as the owner of the suit property without due regard to the lands records and knowing that the 1st Defendant’s title had not been cancelled and/or surrendered. 146.That further, the Land Registrar, Kwale also misrepresented to the 1st Defendant that the register in respect of the suit property had been lost and/or misplaced yet he knew or ought to have known that that was not true. That the Land Registrar also allowed the 2nd Defendant to sub - divide the suit property whilst he knew that the 1st Defendant was the bona fide owner thereof. The 4th Defendant filed a Defence but did not give evidence in the matter. The 2nd Defendant despite being served with summons, failed to enter appearance and/or to file a defence. The 1st Defendant proved that it was legitimately registered as the owner of the suit property and a certificate of title issued to it on 23rd October, 1980. It was DW - 1’s evidence that the 1st Defendant never transferred or sold or parted with its interest in the suit property in favour of the 2nd Defendant (Mr. Obadiah Kioko Kavivya) and/or to anyone else. The 1st Defendant’s evidence to that effect was uncontroverted. 147.The Learned Counsel submitted that the 2nd Defendant however held a title deed in respect of the suit property which was allegedly issued to him on 11th October, 2012. However, he failed to appear in Court and give clear and cogent evidence as to how he acquired title to the suit property which was already in the name of the 1st Defendant. In perpetuating the fraud further, the 2nd Defendant proceeded to illegally sub - divide the suit property into three ( 3 ) portions (Kwale/Galu Kinondo/2366, 2367 and 2368) and to sell a portion No. Kwlae/Galu Kinondo/2368 to the Plaintiffs (2nd and 3rd Defendants by way of Counter - Claim), knowing that he did not have a valid title deed or that he was not the genuine owner thereof. 148.They submitted that from the above, it was obvious that the 2nd Defendant fraudulently, illegally and/or irregularly obtained the registration of the suit property in his name. They were guided by the authority of:- “Samuel Odhiambo Oludhe & 2 Others – Versus - Jubilee Jumbo Hardware Limited & Another [2018] eKLR” where the court held that:“I am in agreement with Munyao J. that section 26 is meant to protect the real title holders from unscrupulous persons whose intention is to benefit where they have not sown. The real title holder having led evidence that they neither sold nor transferred the suit land to the Defendant, is prima facie evidence that the Defendant got the suit land unprocedurally”. 149.They further averred that it was obvious that the 2nd Defendant deliberately and fraudulently colluded with the 4th Defendant (Kwale Lands Registrar) to obtain the registration of the suit property in his name because it was the 4th Defendant who had the sole mandate to register the interest of parties in land. In June, 2014, the 4th Defendant had indicated to the 1st Defendant that the register in respect of the suit property was lost or misplaced. He even went ahead and authorized the opening of a new register in the name of the 1st Defendant and all the necessary charges were paid for by the 1st Defendant. (They referred to the 1st Defendant Exhibit Nos. 5, 6 and 7). 150.The 4th Defendant, who is the custodian of lands records, failed to disclose that he had issued a title deed to the 2nd Defendant on 11th October, 2012 and authorized the sub - division of the suit property by the 2nd Defendant at about the same time. The 4th Defendant did not give evidence in court; therefore he failed demonstrate how or what supporting documents he relied on to issue a title deed to the 2nd Defendant, more so without cancelling and/or surrendering the prior existing and validly acquired title held the 1st Defendant. At all times, it was the duty of the 4th Defendant to ensure the sanctity of a title, and purporting to issue two titles in respect of the suit property was fraudulent and/or grossly negligent. This Honourable Court ought not to countenance such acts of the 4th Defendant. 151.On that basis, they urged this Honourable court to find that the Plaintiff had proved to the required standard of the law, that the 4th Defendant illegally, fraudulently or irregularly manipulated and issued the 2nd Defendant with a title deed. They relied on the authority of “Alice Chemutai Too – Versus - Nickson Kipkurui Korir & 2 others [2015]eKLR”, where the Court stated that:“No succession proceedings have ever been filed in respect of the estate of the deceased and it follows that the estate of the deceased has not been distributed. I do not think it necessary to belabour the point that the title of the 1st Respondent was improperly acquired. It does not need space science to bring one to the conclusion that the 1st Respondent must have acquired registration of the suit property by way of fraud. He obviously could not have perpetrated the fraud on his own and he must have colluded with corrupt and morally deficient fellows in the land registry”. 152.Thus, it was their submissions that the 1st Defendant had proved fraud on the part of the 2nd and 4th Defendants (1st and 4th Defendants by way of Counter - Claim) to the required standard of the law. 153.On whether the 1st Defendant had proved fraud on the part of the Plaintiffs. The Learned Counsel contended that the Plaintiffs had pleaded fraud against the Plaintiffs (2nd and 3rd Defendants by way of Counter - Claim) and the particulars thereof were contained in Paragraph 21 of the Amended Defence and Counter - Claim. DW - 1 testified that the 2nd and 3rd Defendants fraudulently failed to conduct due diligence before acquiring the suit property. Therefore, the Plaintiffs were not innocent purchasers for value without notice. DW - 1 stated that the suit property there was a makeshift structure which operated as a church on the suit property and a shade used by taxi operators, authorized by the 1st Defendant. 154.The 2nd and 3rd Defendants though having admitted to visiting the suit property ignored the same and went ahead to negotiate and purchase the suit property. The Plaintiffs clearly had the chance to do a background check on the suit property and the seller but they failed to do it. PW - 1 also admitted in cross examination that he did not ask the people on the suit property who the owner was. Had the Plaintiffs done so, they would have easily discovered the 1st Defendant is the lawful owner of the suit property. In fact, a few days after obtaining a title deed, they wrote a letter dated 8th August, 2014, through their advocates, to the members of the church on the suit property to vacate. They failed to explain why that was not done beforehand. In examination in chief, PW - 1 also stated that a search was conducted after the signing of the sale agreement; the Plaintiffs therefore deliberately entered into the sale agreement before conducting due diligence. By failing to do the above, the Plaintiffs substantially contributed to the fraud committed by the 2nd and 4th Defendants. The Plaintiffs could not also claim to be innocent purchasers for value without notice. It would be seen that the provision of Section 143 (2) does not protect a proprietor who “caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.” 155.On whether the Plaintiffs’ title is protected under the provision of Section 26 of the Land Registration Act, 2012, the Learned Counsel submitted that even if this Honourable Court was to find that the Plaintiffs were innocent purchasers for value, their title was and still could not stand under the provision of Section 26(1)(b) of the Land Registration Act, 2012. 156.They relied on the authority of “Elijah Makeri Nyang’ra – Versus – Stephen Mungai Njuguna & Another [2013] eKLR” in which the court held that:“Is the title impeachable by virtue of Section 26(1) (b) ? First, it needs to be appreciated that for Section 26 (1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26(1)(b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions.” 157.Further in the authority of “Petronillah Nafuna Khaemba – Versus - Attorney General & 7 Others [2019] eKLR” the Court held that:“Both this Court and the Court of Appeal have been consistently categorical that it was never the intention of Parliament to confer a thumb of approval to fraud in acquisition of title to land both under the repealed and current land registration legal framework. Where a legitimate land owner is dispossessed of land through fraud such as what is before court presently, courts of law have a duty to remedy the fraud by annulling the fraudulent entries. Indeed, our courts have reiterated this principle in a myriad of cases, among them.” 158.In view of the above findings, they submitted that it being crystal clear that the manner in which the 2nd Defendant obtained title to the suit property was patently irregular, illegal and/or fraudulent. Any title to land obtained through a fraudulent dealing cannot be allowed to stand. That was indeed the import of the provisions of Section 26 of the Land Registration Act, Act No. 3 of 2012 and therefore the Plaintiffs’ title, which was a resultant of the fraudulent or illegal sub - divisions of the suit property cannot stand, it is null and void. They urged this Honourable court to make a declaration to that effect. 159.Thus, they urged this Honourable Court to find that the 1st Defendant was the lawful owner of the suit property and to revoke and/ or cancel the 2nd Defendant’s title to the suit property and the resultant subdivisions and to order the 4th Defendant to rectify the land register and to register and/ or restore the 1st Defendant as the owner Plot Number Kwale/Galu Kinondo/397. 160.In a nutshell, they prayed that the 1st Defendant’s Counter - Claim be allowed with costs as prayed for. C. The Written Submissions by the 3rd Defendant 161.The 3rd Defendant through the Law firm of Messrs. Muriithi Kireria & Associates Advocates filed their written submissions dated 18th September, 2024. Mr. Muriithi Advocate submitted that the matter before the Honourable Court commenced by way of Plaint dated 14th August, 2014 and later on amended and filed the Amended Plaint dated 25th April, 2017 against the 1st to the 5th Defendants herein seeking among other prayers that:-a.In the alternative, an order do issue against the 2nd, 3rd and 4th Defendants jointly and severally compelling them to refund the purchase price paid to them by the Plaintiffb.General damagesc.Costs of the suit and interest 162.According to the Counsel, the Plaint was opposed vehemently via Statement of Defense dated 2nd June, 2021 and accompanying list of witnesses, witness statement and list of documents all dated 2nd June, 2021 and the Supplementary list of documents dated 17th March, 2023 all produced as evidence in chief for the 3rd Defendant in this matter. 163.The Learned Counsel submitted that they intended to demonstrate that the claim against the 3rd Defendant was not merited this claim should be dismissed with costs to the Plaintiffs under the following headlines:-a.Factual background.b.Applicable law.c.Upshot. 164.On the factual background, the Learned Counsel submitted that the Plaintiffs visited her chambers and requested if she could represent them in the transaction of buying the property from the Vendor, the 2nd Defendant herein. The 3rd Defendant went ahead and enquired and carried out due diligence over the property. He was advised that the Vendor and the Purchaser had already met and set the purchase price of the suit property at a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs 13,500,000.00/=). The Purchaser's advocate had conducted their search and the 3rd Defendant had also conducted her own search to ensure that the 2nd Defendant had true title over the property. The agreements were signed and later on the balance of the purchase price sent to the Purchaser. The 3rd Defendant went ahead with her work normally not until the Plaintiffs called her and told her of the ordeal that occurred later and to her shock she directed them to the 2nd Defendant’s advocate. On or about the 14th August, 2014, the Plaintiffs herein went ahead and instituted this claim and sought among other prayers that the 3rd Defendant refund the purchase price with the argument that the 2nd Defendant, 4th Defendant and the 3rd Defendants were in a fraudulent scheme to try and defraud the Plaintiff. 165.According to the Learned Counsel they intended to show that the 3rd Defendant acted in her best capacity as the advocate of the Purchasers in the agreement and that the allegations brought forward were not only generic but unintelligible, speculative, not particularized and denied in totality. 166.On the applicable law and on whether the Plaintiffs had established any case against the 3rd Defendant. The Learned Counsel averred that it was quite evident that the 3rd Defendant herein was an advocate in her chambers and by the luck, clients entered her chambers just like manna from heaven and instructed her to draft legal instruments such as land sale agreement. The allegations alleged herein were not only malicious, speculative, unintelligible but also damaging to her character as an advocate of the High Court of Kenya, practiced with distinction for the last 18 years. The Plaintiffs and the 2nd Defendant had met earlier and not only had they visited the property but had discussed the purchase price before the Purchasers, the Plaintiffs herein visited the 3rd Defendant chambers. 167.The Plaintiffs had strategically stated in their witness statement that they had established a relationship with the 2nd Defendant prior to them visiting the 3rd Defendant’s chambers and further that they had already sent the deposit of a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000.00/=) to the 2nd Defendant herein. (Reference is Plaintiffs’ exhibit 2 of the Bankers Cheque to the 2nd Defendant herein). The single purpose of the Plaintiffs visit was to instruct the 3rd Defendant to only draw for them a sale agreement. Notwithstanding the apparent purpose of the Plaintiffs visit to the office, 3rd Defendant went ahead and conducted an official search and only proceeded with the drafting of the agreement. This was once she was satisfied with the results of the official search. (Reference to the search dated 10th March, 2014). 168.The official search was furnished by the Lands Registry, Kwale the 4th Defendant herein, which corresponded with the earlier search that the Plaintiffs had brought and was listed in Clause 8 of the Agreement for sale. (Reference is to their Supplementary list of documents dated 17th March, 2023). The search acted as a shield of fraud and discovered that the property indeed belonged to the Vendor, the 2nd Defendant herein. Afterwards the Plaintiffs had agreed prior that the stated purchase price – a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13,500,000.00/=) which a deposit of Kenya Shillings One Million Five Hundred (Kshs. 1,500,000.00/=) had already been paid prior to them arriving at the 3rd Defendant's chambers as captured in Clause 2.1 of the Sale agreement. (Reference was to their Supplementary list of documents dated 17th March, 2023). 169.The balance was immediately transferred to the Vendor's advocate. The 3rd Defendant never retained any amount on behalf of the Vendor. Upon receipt of the balance the Vendor's advocates released the completion documents to the 3rd Defendant's for them to register the property. 170.The Learned Counsel humbly submitted that the 3rd Defendant, an officer of this court acted with the utmost care and skill required and expected of an advocate of the High Court. The 3rd Defendant had no relationship with the 2nd nor the 4th Defendant herein. The 3rd Defendant when dealing with this transaction followed the due process of registering and transferring title to property. 171.The Learned Counsel asserted that they were aware that the search from the Land Registry was conclusive of title belonging to an individual and provided details of any encumbrances in the title. In this scenario, the search was full proof that the 2nd Defendant had title over the property. Thus, the 3rd Defendant in the best interest of the client, the Plaintiffs herein, advised that they do sign the agreements and transfer to the title. For a party to allege fraud, one party must only allege via pleadings but bring evidence that showed the conspiracy to do so. The 2nd and 3rd Defendants were never in communication and that all communication was through the 2nd Defendant’s advocate. Hence, one could not collude and commit fraud with a stranger. 172.Further, the Learned Counsel contended that fraud was a common law tort of deceit whose ingredients were false representation of a false fact with the intention that the other party should act on it and that party suffers damage. Fraud has been defined in Black’s Law Dictionary 11th Edition as“A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.” 173.They had clearly stated above that the 3rd Defendant acted in the best interest of the Plaintiffs in the transaction and that had no intention to defraud them. To buttress his point, the Counsel cited several cases of:- “Jumra Limited – Versus - UBA Bank Kenya Limited; Victoria Commercial Bank Limited & another (Interested Parties) (Commercial Case E089 of 2023) [2023] KEHC 2674 (KLR) (Commercial and Tax) (29 March 2023)(Ruling)”; which quotes the case of “Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR”, where Tunoi, JA. (as he then was) stated as follows;“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 174.The allegations of fraud carry a heavier burden and standard of proof than normal civil cases; the Learned Counsel cited in “Kinyanjui Kamau – Versus - George Kamau [2015] eKLR”, expressed itself as follows:-“.........It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo – Versus - Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that:-“.......We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” 175.Further, the Counsel made reference to the case of:- “Yalwala & 3 others (Sued in their capacity as Board of Trustees of Chavakali Yearly Meeting of Friends (Quakers)) – Versus - Kadenge & 3 Others (Environment & Land Case 4 of 2021) [2022]KEELC 2510 (KLR)(21 July 2022) (Judgment)” where the Court stated that:-“On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in the ordinary civil cases. In Koinange & 13 others – Versus - Charles Karuga Koinange 1986 KLR at page 23 the court held that:“When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.” 176.From the above, it was the argument by the Counsel that the Plaintiffs had failed to categorically list the particulars of fraud and also proof beyond doubt that the 3rd Defendant was in a conspiracy to defraud the Plaintiffs herein. Such allegations were not only pleaded but supported by concrete evidence. Indeed, the 3rd Defendant acted in the best interest of the Plaintiffs as any advocate of this court would do. They humbly submitted that the case against the 3rd Defendant lacked merit and should be dismissed and awarded costs. 177.On the general damages. The Learned Counsel submitted that they were awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. It was their humble submission that the 3rd Defendant was not part and parcel to any infringement that the Plaintiffs would have incurred or lost thus they sought that the prayer for damages does not engulf the 3rd Defendant herein. 178.On the costs. The Counsel held that costs follow event. This Honourable Court was guided by the provision of Section 27 of the Civil Proceedings Act, Cap. 21. 179.The upshot of it being that they humbly sought that the Amended Plaint dated 25th April, 2017 be dismissed with costs to the 3rd Defendant. X. Analysis and Determination 180.I have keenly assessed the filed pleadings by all the Plaintiffs and Defendants herein, the oral testimonies adduced in court, the documentary evidence tendered, the written submissions filed by the respective counsel, the plethora of cited authorities, and the relevant provisions of the Constitution of Kenya, 2010 and the statutes governing land ownership and registration. 181.In order to reach an informed, reasonable, and just decision in the subject matter, this Honourable Court crafted the following six ( 6 ) issues for its determination. These were: -a.Whether the 1st & 2nd Plaintiffs have lawfully acquired ownership and title to land parcel number Kwale/Galu Kinondo/2368.b.Whether the 2nd, 3rd, and 4th Defendants have engaged in any fraudulent or collusive acts leading to the issuance of the Plaintiffs’ title deed.c.Whether the 1st Defendant has proved ownership of the original parcel Kwale/Galu Kinondo/397 and the alleged fraudulent sub - divisions thereof.d.Whether the Plaintiffs are entitled to the reliefs sought in the Amended Plaint, including declarations of ownership, injunctions, and refund of the purchase price.e.Whether the 1st Defendant’s Counter - Claim is merited and whether the resultant sub - divisions—Kwale/Galu Kinondo/2366, 2367, and 2368—are invalid, null, and void.f.Who bears the costs of the suit and the Counter - Claim. Issue No. a). Whether the 1st & 2nd Plaintiffs have lawfully acquired ownership and title to land parcel number Kwale/Galu Kinondo/2368. 182.Under this sub‑title the Honourable Court shall critically examine the evidence adduced by the 1st & 2nd Plaintiffs, the Defendants’ responses, and the applicable law governing land ownership and registration in Kenya.The main substratum of the matter herein is on the land ownership. 183.Fundamentally, the Plaintiffs assert that they purchased the suit parcel known as Land Reference numbers Kwale/Galu Kinondo/2368 from the 2nd Defendant, Obadiah Kioko Kavivya, for a consideration of a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13,500,000/=), relying on the professional services of the 3rd Defendant, Caroline Njogu Advocate. To support their assertion, the role played and case, they produced a sale agreement dated 13th March, 2014, bankers’ cheques, and a title deed issued in their names. They contend that they were bona fide purchasers for value without notice of any defect in title. 184.While tackling on the root of the title to the suit land, the 1st Defendant, Kinuthia Holdings Limited, on the other hand, maintains that it was the registered proprietor of the original parcel known as Land Reference Numbers Kwale/Galu Kinondo/397 since 23rd October 1980, having purchased it from one William Njoroge Mbote. According to the evidence on record and adduced herein from the Division of Land & Adjudication Office (DLASO), Mr. Mbote was the first allottee to the suit land and hence Court to have been issued with a Certificate of Title upon the opening of a Green card by the Land Registrar. However, this never happened as it was argued that Obadiah Kioko Kavivya fraudulently obtained a title to the same land in year 2012 from the said Mr. Mbote. Subsequently, he unlawfully sub - divided it into parcels several parcels – numbers 2366, 2367, and 2368 in some questionable manner. It was one of the sub – divided parcels – Numbers 2368 that was later on transferred to the Plaintiffs. 185.As already indicated, the Honourable Court under this title is to deciphers the main substratum herein is on the issue of legal ownership to the suit land. From the very onset, Judicial notice will be taken to the fact that land in Kenya is extremely sensitive and emotive. Land is a source of livelihood and a lot of importance is bestowed on it. Land is not just a vital resource for development but also a tool for the mobilization of resources, being the security collateral for project financial base such as loans. There has been plenty of disputes over the occupation, title and rights of land. 186.According to Chapters five, Articles 61, 62, 63 & 64 the Constitution of Kenya, 2010 has been clearly spelt out the principles and classifications. Land is categorized into three – Private; Public and Community land. 187.With promulgation of the Constitution of Kenya, 2010, all the legal regime of land legislation were condensed into a few legal framework, Significant, after the repealing of several legislation, two of them were sustained being “The Land Registration Act, No. 3 of 2012 and the Land Act, No. 6 of 2016”. 188.It is instructive to note that the suit land was registered under the Registration of Title Act, Cap. 281 (now Repealed). As already correctly pointed out by the Learned Counsel for the Defendant, based on the provisions of Section 107 of the Land Registration Act No. 3 of 2012 provided that any right, interest, title, power, or obligation acquired, accrued, or established under the repealed Acts would continue to be governed by the law applicable to it immediately prior to the commencement of the new Act. This Legal position finds grounding in the provisions Section 23 ( 3 ) ( c ) of the Interpretation and General Provisions Act, Cap. 2 which provides:-“Where a written law repeals in whole or in part another written law, then unless a contrary intention appears the repeal shall not affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law so repealed”Ideally, I wish to point out that Section 7 of the Land Act, No. 6 of 2012 provides the mode upon which one acquires land in Kenya. Additionally, the Land Registration Act, No. 3 of 2012 makes provision on the effect and efficacy of registration of title and its indefeasibility. The provision of Section 24(a) provides as follows:-“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 189.When a person’s ownership to a property is called into question, it is trite that the said proprietor has to show the root of his ownership. In the case of “Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [2016] eKLR”, where the Court held that;‘A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’ 190.Further to this, the Honourable Court is guided by the Court of appeal in the case of: “Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No.239 of 2009”, the Appeal Court held that:-“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 191.The law is clear that, the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as ‘the prima facie’ conclusive evidence that the person named as proprietor of the land is the absolute and legal owner with indefeasible title, rights and interest on the land and the proprietor shall not be subject to challenge except – On the ground of fraud, mistake, omission or misrepresentation to which the person is proved to be a party; or Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 192.This court in considering this matter referred to the case of:- “Elijah Makeri Nyangw’ra – Versus - Stephen Mungai Njuguna & Another (2013) eKLR” where the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. The court in the case while considering the application of provision of Section 26(1) (a) and (b) of the Land Registration Act holds as follows:-“--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.” 193.Now turning to the issues from the instant case.The Court notes that under the provision of Section 24(a) and Section 25(1) of the Land Registration Act, 2012, registration confers absolute ownership and rights to the registered proprietor, subject only to encumbrances noted on the register. However, the provision of Section 26(1) of the same Act provides that a certificate of title may be challenged if it is shown that it was obtained through fraud, misrepresentation, or an illegal, unprocedural, or corrupt scheme. 194.In the present case, the Plaintiffs admitted, a strangely so, that although they entered into a sale agreement for the purchase of the land terms and conditions stipulated thereof, they never met the Vendor personally. Instead, they relied entirely on their advocate’s assurances, and later discovered that the title deed issued to them was declared fake by the Kwale Lands Registry. According to the evidence of DW - 1, Philip Waithaka Kinuthia, the records at the Land Registry confirmed that the parent (read mother) title was Land Reference Numbers Kwale/Galu Kinondo/397 had never been transferred to Obadiah Kioko Kavivya, the 2nd Defendant herein, and that the sub - division was done fraudulently. 195.From the record, the Land Adjudication official search, the Green Card and Certificate of title, all that parcel of land known as Land Reference numbers Kwale/Galu/Kinondo/397 measuring 1.4 Ha (approximately 3.46 acres) was registered in the names of Kinuthia Holdings Limited, the 1st Defendant herein on 23rd October, 1980. The 1st Defendant had acquired the land from Mr. William Njoroge Mbote. From a search dated 21st June, 2021 conducted from the offices of the Division of land Adjudication & Settlement Office (DLASO), Kwale, this parcel was registered in the names of Mr. Mbote. On 15th November, 1974, a Green Card was opened at the Land Registry, Kwale and according to entry record number 1 and 2 a Certificate of Title was issued to Mr. Mbote. Subsequently, a sale agreement and transfer documents of October, 1980, he transferred the land to the 1st Defendant. On the 23rd October, 1980 they were issued with a Certificate of title and hence became the absolute and legally registered owners to the suit land. However, it was until the year 2014 upon visiting the Land Registry that they were shocked to discover that the original green card was misplaced and a new one bearing the following information was placed on the parcel file. It was opened on 15th November, 1974; Entry Number 1 dated 15th November, 19174 was in the names of William Njoroge Mbote; Entry 3 dated 21st October, 1987 in the names of Pawan Kumar Gupta; Entry Number 5 dated 19th October, 2006 was in the names of Rolfmeier Robert (of Zurich); Entry Numbers 7 dated 11th October, 2012 was in the names of Obadiah Kioko Kavviya the 2nd Defendant herein. He was issued with a Certificate of Title Deed. It will be noted that this Green Card was though certified as true copy of the original by a Land Registrar called Mr. E. N. Marwanga, numbers 253 it was never signed. In the year 2014, the 2nd Defendant caused the parcel of land to be sub – divided into several parcels – Numbers 2359, 2360 2361, 2362 and 2368. On discovering, the 1st Defendant swore an Indemnity dated 9th June, 2014 on the misplacement and/or loss of the green card. A Gazette sixty ( 60) days notice dated 10th June, 2014 was published in the Kenya Gazette by the Land Registrar, Kwale one Mr. Ngetich in accordance with the Law. Taking that there was no objection raised, the Green Card was reinstated and/or restored in the names of the 1st Defendant. Hence, as per the records, it is the 1st Defendant who is the absolute and registered owners to the parcel Number Kwale Galu Kinondo/397. Ironically, all these facts were never controverted as the 2nd Defendant though filed a Statement of Defence dated 20th September, 2017 and a List of Documents, but opted never to testify nor file any submissions in Court as required by Law. Indeed, he also filed a Preliminary Objection dated 26th September, 2014 whereby he wished to have his names struck out from the suit. Under the Contents of Paragraphs 4 and 5 of the Defence he holds as follows:-Paragraph 4:- The 2nd Defendant in response to Paragraphs 3A and 3B of the Amended Plaint states that he has no knowledge of the facts enumerated therein and the particulars thereby putting the Plaintiffs to strict proof thereof.Paragraph 5:- The 2nd Defendant in reply to Paragraphs 4, 4A and 4B of the Amended Plaint states that he is a stranger to the allegations contained therein as his contact with the Plaintiff ceased at the point of sale of the suit property and thereby putting the Plaintiffs to strict proof thereof.From the face value, the 2nd Defendant seem to be running away from having any contractual relationship with the Plaintiffs. The Court finds that rather unusual, bizarre and legally unfair. That is adequate on the brief facts. 196.Juxtapose, and at this juncture, the main issue this Court needs to determine is whether the Plaintiffs were bona fide purchaser for value without notice. Black’s law Dictionary 10th Edition defines a ‘bona fide purchaser’ as follows:‘One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.’ 197.On challenging validity of title, the provision of Sections 26 (1) (b) of the Land Registration Act states that:‘The Certificate of Title issued by the Registrar upon registration or to a purchaser of land upon a transfer shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge, except –a.On the ground of fraud or misrepresentation to which the person is proved to be a party; orb.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.’ 198.In the case of “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others (2015) eKLR”, the Court of Appeal dealt exhaustively with the issue of bona fide purchaser for value without notice and held that a party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular. Further in the Uganda Court of Appeal Case of “Katende – Versus - Haridar & Company Ltd (2008) 2 EA 173”, the Court defined what amounts to a bona fide purchaser for value thus:‘A bona fide purchaser for value is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, he must prove the following:a.He holds a Certificate of Titleb.He purchased the Property in good faith;c.He has no knowledge of the fraud;d.The vendors had apparent valid title;e.He purchased without notice of any fraud;f.He was not party to any fraud.A bona fide purchase of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner. 199.While in the case of “Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura – Versus - Attorney General & 4 others (2017) eKLR”, the Court of Appeal held that a party cannot claim a bona fide purchaser for value where the vendor did not have a valid title. 200.Applying these legal principles, as already graphically demonstrated above, the Court finds that the Plaintiffs’ title to Kwale/Galu Kinondo/2368 was derived from a fraudulent and illegal sub - division of Kwale/Galu Kinondo/397, whose absolute and rightful owner was Kinuthia Holdings Limited, the 2nd Defendants herein. Professionally speaking, I have noted that their Advocate M/s. Caroline Njogu played a very laid back or what one would call an arm chair and passive role in the whole transaction. As her Counsel puts it, she got a brief as manna falling from heaven and the only tangible thing she did was to conduct an official search and drawing a sale agreement. She never undertook any tangible steps as expected of a Conveyancing Advocate. There was no physical inverstigation of the land; never caused the Vendor and Purchaser to physically meet, engage, interrogate the terms and conditions of the agreement nor and witness its execution as spelt out under the provision of Sections 3 of the Laws of Contract Cap. 23 and Section 38 ( 1 ) & ( 2 ) of the Land Act, Number 6 of 2012. Indeed, when the Plaintiffs were confronted by a certain lady brandishing a copy of Certificate of title Deed and claiming ownership to the suit land, they turned to their Advocate for assistance. Paradoxically, rather than assist them, she send them away to one Mr. Vincent the land agent. She emphatically stated that she was no longer on record for them. Certainly, she was not helpful at all which was extremely unfortunate from a professional view point. I say so as she had already been paid for the services and there had been no notice of change of Advocate nor order to cease from acting for the Plaintiffs under the provisions of the law – Order 9 Rule 13 of the Civil Procedure Rules, 2010 produced. They were left to be on their own. One would have expected her to have taken drastic emergency legal action for instance seek a court order for temporary and/or permanent injunction orders under the provision of Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules, 2010 or cause the registration of an inhibition against the parcel under the provision of Section 68 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012 and/or Section 79 ( 1 ) & ( 2 ) of the Land Registration (General) Regulations of 2017 in order to preserve the suit property. 201.As far as this court is concerned, M/s. Caroline Njogu Advocate is still on record for the Plaintiffs. This Court can never exonerate her from her Legal responsibilities and obligations as a profession engaged to perform a duty. It would be extremely unfair and travesty of Justice to do so to her clients – the Plaintiffs herein. 202.Be that as it may, the Plaintiffs therefore did not lawfully acquire ownership or title to the suit property within the meaning of the provision of Section 26(1)(b) of the Land Registration Act. While the Plaintiffs may have been innocent purchasers, the doctrine of indefeasibility of title does not protect a title whose root is tainted by fraud. Their remedy lies not in ownership of the land but in restitution against the 2nd and 3rd Defendants for the purchase price paid. 203.Accordingly, the Court holds that the Plaintiffs did not lawfully acquire ownership and title to land parcel Kwale/Galu Kinondo/2368, and their registration as proprietors is invalid, null, and void. The Plaintiffs’ claim to ownership must therefore fail, though their right to seek compensation for the monies expended remains preserved against the parties who facilitated the fraudulent transaction. Issue No. b). Whether the 2nd, 3rd, and 4th Defendants have engaged in any fraudulent or collusive acts leading to the issuance of the Plaintiffs’ title deed 204.Under this sub‑title the Honourable Court shall examine the conduct of the 2nd, 3rd, and 4th Defendants in light of the pleadings, oral testimony, documentary evidence, and the applicable statutory provisions. The Plaintiffs alleged that the 2nd Defendant, Obadiah Kioko Kavivya, purported to sell them land parcel Kwale/Galu Kinondo/2368, which was a sub - division of Kwale/Galu Kinondo/397, despite not having a valid root of title. They further alleged that the 3rd Defendant, M/s. Caroline Njogu Advocate, failed in her professional duty of care by preparing the Sale Agreement, receiving part of the purchase price, and assuring them of the validity of the transaction without conducting proper due diligence or even offering any other service to them. The Plaintiffs also accused the 4th Defendant, the Kwale District Land Registrar, of colluding in the creation of a parallel parcel file and issuing a fraudulent title deed in their names. 205.From the evidence, PW - 1 testified that he never met the vendor personally and relied entirely on the 3rd Defendant’s assurances. He stated that the title deed handed to him was later declared fake by the Lands Registry. DW - 1, a director of Kinuthia Holdings Ltd., confirmed that the parent parcel Kwale/Galu Kinondo/397 had never been transferred to Obadiah Kioko, and that the sub - divisions including 2368 were fraudulent. The 3rd Defendant, in her testimony, admitted preparing the Sale Agreement and facilitating payments but maintained that she relied on official searches and completion documents provided by the vendor’s advocates. The 4th Defendant was implicated for permitting registration and subdivision despite the existence of an earlier valid title in the name of Kinuthia Holdings Ltd. 206.The Land Registration Act does not define fraud. Recourse must therefore be had to other sources of law. The Black’s Law Dictionary 9th Edition defines fraud thus: -“Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, In the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another’. 207.Fraud is essentially a common law tort of deceit and its essentials are:-a.false representation of an existing fact;b.with the intention that the other party should act upon it;c.the other party did act on it; andd.the party suffered damage. 208.With respect to a contract, fraud means and includes any of the acts set out below committed by a party to a contract, or with his connivance or by his agent with the intent to deceive another party thereto or his agent or to induce him to contract:-a.the suggestion as a fact, of that which is not true by one who does not believe it to be true;b.the active concealment of a fact by one having knowledge or belief of the fact;c.a promise made without intention of performing it;d.any other act fitted to deceive; ande.any such act or omission or the law declares to be fraudulent. 209.Equity has exercised a general jurisdiction in case of fraud, sometimes concurrent with and sometimes exclusive of common law courts. Fraud would, therefore, consist of deceitful actions which may be made through either positive assertions or concealment of facts. 210.It is settled law that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. At page 427 in Bullen & Leake & Jacobs, Precedent of pleadings 13th Edition quoting with approval the cases of “Wallingford – Versus - Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709”, “Garden Neptune – Versus - Occident [1989] 1 Lloyd’s Rep. 305, 308”, “Lawrence – Versus - Lord Norreys (1880) 15 App. Cas. 210 at 221” and “Davy – Versus - Garrett (1878) 7 ch.D. 473 at 489” it is stated that:-“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged. The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (|). “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice”. 211.Locally, the above principles have been stated in “HCCC No. 135 of 1998 Insurance Company of East Africa – Versus - The Attorney General & 3 Others” as thus whether there was fraud is, however, a matter of evidence. 212.In the case of “Alice Chemutai Too – Versus – Nickson Kipkurui Korir & 2 Others [2015] eKLR” Justice Sila Munyao held that:“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara –Versus - Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012 where I stated as follows:- “…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent titleholder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally, or through a corrupt scheme. The titleholder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions. “I stand by the above words and I am unable to put it better that I did in the said dictum.” 213.I am in agreement with Munyao J. that the provision of Section 26 is meant to protect the real title holders from unscrupulous persons whose intention is to benefit where they have not sown. It is trite that he who alleges must prove, as provided by Section 107 of the Evidence Act. The Plaintiffs have alleged fraud on the part of the Defendants, and they had a duty to prove the existence of such fraud. 214.In the case of “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [Supra]”, the Court held that;“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13th Edition at page 427:“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford – Versus - Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308). 215.Further the Court of Appeal specifically referred to the law as stated in the case of “Dr. Joseph Arap Ngok – Versus - Justice Moijo ole Keiwua & 5 others, Civil Appeal No. Nai. 60 of 1997” where the Court categorically declared that;-“Section 23(1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act set out below) gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of Titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” 216.Where a person’s title is under attack, he must of necessity give an account on how he acquired the same; the Accuser must also show the court that the property as truly obtained in a fraudulent transaction. In the case of “Munyu Maina – Versus - Hiram Gathiha Maina, (Supra)”, where the Appeal Court held that: -“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 217.It is trite that fraud must be specifically proved. See the case of “Vijay Morjaria - Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR”, where the Court held:-“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 218.See also the case of “Koinange & 13 others – Versus - Charles Karuga Koinange 1986 KLR” at page 23, where the court held that:“Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.” 219.Applying these principles, the Court finds that the 2nd Defendant had no valid title to pass to the Plaintiffs, and his actions in purporting to sell the land amounted to fraud. His conduct was deliberate and intended to unjustly enrich himself at the expense of the Plaintiffs. The 3rd Defendant, though acting as the Plaintiffs’ advocate, failed to exercise due diligence and professional care, thereby facilitating the fraudulent transaction. Her reliance on incomplete or falsified searches cannot absolve her of responsibility, as the law imposes a higher duty of care on advocates in conveyancing transactions. The 4th Defendant, as custodian of land records, permitted irregular entries and subdivisions despite the existence of a valid title in the name of Kinuthia Holdings Ltd., thereby participating in collusion and administrative fraud. His actions undermined the integrity of the land registration system and directly contributed to the issuance of a fraudulent title. 220.Accordingly, the Court holds that the 2nd , 3rd and 4th Defendants did engage in fraudulent and collusive acts which led to the issuance of the Plaintiffs’ title deed. Their conduct falls squarely within the ambit of Section 26(1)(b) of the Land Registration Act, and the Plaintiffs’ title is impeachable on grounds of fraud and illegality. 221.I dare note that this finding underscores the principle that the sanctity of title is not absolute where fraud is demonstrated, and that all actors in the chain of fraudulent dealings—vendors, advocates, and registrars alike—bear responsibility for their roles in undermining the integrity of land transactions. Issue No. c). Whether the 1st Defendant has proved ownership of the original parcel Kwale/Galu Kinondo/397 and the alleged fraudulent sub - divisions thereof 222.Under this sub‑title the Honourable Court shall examine the evidence presented by the 1st Defendant, the responses of the Plaintiffs and other Defendants, and the applicable statutory provisions and case law. 223.The 1st Defendant, Kinuthia Holdings Limited, consistently asserted that it was the registered proprietor of parcel Kwale/Galu Kinondo/397, measuring approximately 1.4 hectares, having purchased the same for valuable consideration from William Njoroge Mbote in October 1980. To support its claim, the Defendant produced its original title deed dated 23rd October, 1980, together with official searches conducted in 2004, and documentary evidence showing continuous occupation and use of the land. This occupation included the presence of a church and kiosk permitted on the property for over fifteen years, which served as tangible proof of possession and control. The 1st Defendant’s evidence demonstrated not only paper ownership but also actual possession, a critical element in establishing proprietary rights under Kenyan land law. 224.The Plaintiffs, however, relied on a title deed issued to them in the year 2014 for parcel Kwale/Galu Kinondo/2368, a subdivision of the original parcel. They candidly admitted that they later discovered the title deed was fraudulent, having been procured through irregular dealings involving the 2nd Defendant. Their own testimony revealed that they had been misled into believing that the 2nd Defendant had a valid title, only to later learn from the Lands Registry that the title deed was fake. 225.Section 24(a) of the Land Registration Act, 2012 provides that“the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging thereto.” 226.Further, as provided by Section 25 of the said Act, his ownership cannot be defeated except as provided by the law. See section 25(1) of Land Registration Act;“(1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, 227.Section 26(1) of the Land Registration Act 2012 provides that:-“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme” 228.In the case of “Munyu Maina – Versus - Hiram Gathiha Maina (Supra)” the Court of Appeal held;“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is the instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register” 229.The Plaintiffs’ evidence must satisfy the requirement in “Munyu Maina – Versus - Hiram Gathiha Maina [supra]”, where the Court of Appeal held that when the root of title is challenged, the registered proprietor must demonstrate the process of acquisition. Under the Land Registration Act, the registered proprietor’s title is prima facie determinative; earlier valid registration ordinarily prevails over later registrations. A later registered title that is tainted by fraud may be set aside; conversely, an earlier registered title may be impeached if it was itself procured by fraud. The court must decide which title was lawfully and validly created.The party alleging fraud or forgery bears the burden to prove it on the balance of probabilities. Where documentary entries conflict, the court examines the contemporaneous documentary trail, witness evidence and any independent corroboration (bank receipts, RTGS, stamp duty receipts, court orders, police exhibits).The Registrar must maintain an accurate register; where the register contains inconsistent or duplicate entries, the Registrar has a duty to investigate and, if necessary, rectify the register. 230.In “Kinyanjui Kamau – Versus - George Kamau [2015] eKLR”, the Court of Appeal observed that;“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo [2008] 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” (Emphasis mine) 231.The court in the case of “Patel & another – Versus - MJC & another (Suing as the guardians of PJP) (Civil Appeal 182 of 2019) [2022] KECA 364 (KLR) (4th February, 2022) (Judgment)” observed as follows;“It should also be appreciated that apart from specifically pleading undue influence, coercion and fraud, the same has to specifically proved by cogent evidence and not on the balance of probabilities as wrongly held by the trial court. Prove has to be higher than on the balance of probabilities but slightly lower than prove beyond reasonable doubt.”The court went on further to say:In the case of Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” Emphasis mine. 232.The Court of Appeal in the case of “Ardhi Highway Developers Limited – Versus - West End Butchery Limited & 6 others (Supra)” as cited in “Hebron Orucho Gisebe & 2 others – Versus - Joseph Ombura Gisebe & another [2022] eKLR” in considering the issue of fraud observed as follows: -“……statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence v Lord Norreys [1880] 15 App. Case. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy v Garrett [1878] 7 ch. D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice”. 233.Similarly, in “Kuria Greens Ltd – Versus - Registrar of Titles & Another [2011] eKLR”, the High Court affirmed that courts will cancel titles obtained through fraud or irregularity to protect genuine proprietors. 234.Applying these principles, the Court notes that under the provision of Section 24(a) and Section 25(1) of the Land Registration Act, 2012, registration confers absolute ownership and rights to the registered proprietor, subject only to encumbrances noted in the register. However, Section 26(1) of the same Act provides that a certificate of title may be impeached if obtained through fraud, misrepresentation, or an illegal, unprocedural, or corrupt scheme. This provision is critical in safeguarding the integrity of land transactions, ensuring that fraudulent dealings do not confer indefeasible rights. 235.The evidence demonstrated that the 2nd Defendant had procured a title to parcel Kwale/Galu Kinondo/397 in 2012, despite the existence of a valid title in the name of Kinuthia Holdings Ltd dating back to 1980. The subsequent sub - divisions into parcels 2366, 2367, and 2368 were therefore fraudulent, having been created without any lawful transfer from the true owner. The Plaintiffs’ title to parcel 2368 was impeachable, as it was derived from a fraudulent root and could not stand against the superior title of Kinuthia Holdings Ltd. 236.Applying these principles, the Court finds that the 1st Defendant has proved ownership of the original parcel Kwale/Galu Kinondo/397. The subdivisions into parcels 2366, 2367, and 2368 were fraudulent, null, and void, having been procured without a valid transfer from Kinuthia Holdings Ltd. The Plaintiffs’ reliance on the fraudulent title deed cannot confer ownership, and their registration must be set aside. 237.Accordingly, the Court strongly holds that the 1st Defendant has established its ownership of the original parcel and has proved that the alleged subdivisions were fraudulent. The Plaintiffs’ title to parcel 2368 is therefore invalid, and the register must be rectified under Section 79 ( 1 ) & ( 2 ) and 80 of the Land Registration Act, 2012 to restore Kinuthia Holdings Ltd as the lawful proprietor of parcel Kwale/Galu Kinondo/397. 238.This finding underscores the principle that indefeasibility of title is not absolute where fraud is demonstrated, and that the sanctity of land ownership must be preserved by protecting genuine proprietors against fraudulent encroachments. It also serves as a cautionary tale that due diligence in conveyancing transactions is indispensable, and that courts will not hesitate to nullify titles whose roots are tainted by fraud, regardless of the innocence of subsequent purchasers. Issue No. d). Whether the Plaintiffs are entitled to the reliefs sought in the Amended Plaint, including declarations of ownership, injunctions, and refund of the purchase price 239.Under this sub – title, the Honourable Court shall examine whether the Plaintiffs have established a legal and factual basis for the reliefs sought in their Amended Plaint, namely:-i.Declaration of ownership of parcel Kwale/Galu Kinondo/2368;ii.Permanent and mandatory injunctions;iii.Refund of the purchase price;iv.General damages and 240.The Court shall examine whether the Plaintiffs have proved entitlement to the remedies sought and whether the law and evidence support the grant of such reliefs. The Plaintiffs sought, in their Amended Plaint, a declaration that they were the absolute and indefeasible owners of parcel Kwale/Galu Kinondo/2368, permanent injunctions restraining the Defendants from interfering with their possession, and in the alternative, refund of the purchase price together with damages and costs. They relied on the Sale Agreement prepared by the 3rd Defendant, the payments made to the 2nd Defendant, and the title deed issued in their names. 241.The Court has already found that the Plaintiffs’ title was impeachable, having been derived from a fraudulent and illegal subdivision of parcel Kwale/Galu Kinondo/397, whose lawful owner was Kinuthia Holdings Ltd. The sanctity of title under Sections 24 and 25 of the Land Registration Act, 2012 is not absolute, as Section 26(1)(b) expressly provides that a certificate of title may be invalidated if obtained through fraud, misrepresentation, or an unprocedural or corrupt scheme. Guided by authorities such as “Arthi Highway Developers Ltd – Versus - West End Butchery Ltd & Others (Supra)” and “Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”, the Court holds that the Plaintiffs are not entitled to declarations of ownership or injunctive relief against the 1st Defendant, since their title was rooted in fraud and could not override the genuine title of Kinuthia Holdings Ltd. 242.On the issue of refund of the purchase price. The Plaintiffs produced evidence of payments amounting to a sum of Kenya Shillings Thirteen Million Five Hundred Thousand (Kshs. 13,500,000/=). The record showed that the 2nd Defendant purported to sell land he did not own, while the 3rd Defendant facilitated the transaction without conducting proper due diligence. The Plaintiffs were bona fide purchasers for value, but they were misled into believing that the transaction was valid. his court is alive to the doctrine of unjust enrichment. 243.Broadly founded upon the aim of equity to do justice between parties, the doctrine of unjust enrichment and the remedy of restitution to counter unjust benefit proceed upon the realization that to allow a Defendant to retain such a benefit would result in his/her being unjustly enriched at the Plaintiff’s expense, and this, subject to certain defined limits, will not be tolerated by the law, and owing to the importance and aim of this doctrine in every advanced and civilized system of justice. This was the emphatic language of Madan, JA (as he then was) in the case of “Chase International Investment Corporation and another – Versus - Laxman Keshra and others (1978) KLR 143” at page 154 where it was firmly and unequivocally laid down that in Kenya, a claim may properly be founded for restitution where it would be unjust to allow a party to retain the benefits of an unjust enrichment. The learned Judge stated inter alia:“woe unto the day when it is lost sight in Kenya, which would also be contrary to the spirit of section 3(c) of the Judicature Act. I trust that in future, in appropriate cases, there will be less smothering of just equitable rights on the basis of technical objections and artificial distinctions oblivious to justice and substance.” 244.And on the authorities approved by Madan and Wambuzi, JJA (as they then were) in the case of “Chase International Investment Corporation (supra)”, the basic elements presupposed by the doctrine of unjust enrichment are (1) that the Defendant has been enriched by the receipt of a benefit, (2) that he has been so enriched at the expense of the plaintiff to allow the Defendant to retain the benefit in the circumstances of the case. These subordinate principles of the general principle of unjust enrichment are interrelated. They clearly show the nature of restitutionary claims, and how people incur restitutionary obligations. 245.In other words, the idea of unjust benefit is intended to prevent a person from retaining money or some benefit derived from another which it is against conscience that he should keep it, and he should, in justice, restore it to the Plaintiff. The gist is that a Defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to make restitution. Lord Goff of Chievely and Professor Gareth Jones state in their monumental treatise, The Law of Restitution, 5th Edition (1998) at PP 11-12:“Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment.” 246.In the case of “Willy Kimutai Kitilit – Versus - Michael Kibet [2018] eKLR”, the Court of Appeal held inter alia, that: -“The doctrine of equity are part of our laws although Section 3 of the Judicature Act subordinates common law and the doctrine of equity to the constitution and written law in that order. Section 3(3) of the Law of Contract Act and Section 38(2) of the Land Act as amended clearly stipulate that the requirement that contracts for disposition of an interest in land should be in writing does not affect the creation or operation of a resulting, implied or constructive trust. The equity of proprietary estoppel is omitted but as the decision in Yaxley –vs- Gotts [2000] ch. 162 (Yaxley’s case) on which the court in Macharia Mwangi Maina decision relied, amongst others, shows that the doctrine of constructive trust and proprietary estoppe overlaps and both are concerned with equity’s intervention to provide relief against unconscionable conduct.” 247.In the above case, the Court of Appeal further stated:“There is another stronger reason for applying the doctrine of constructive trust and proprietary estoppel to the Land Control Act. By Article 10(2) (b) of the Constitution of Kenya, equity is one of the national values (emphasis supplied) which builds the courts in interpreting any law (Article 10(1)(b). Further, by Article 159(2)(e), the courts in exercising judicial authority are required to protect and promote the purpose and principles of the constitution…” 248.In the present case there is no denial that the purchase price was paid. Applying these principles, the Court finds that the Plaintiffs are entitled to restitution of the purchase price against the 2nd and 3rd Defendants jointly and severally, with interest at court rates, as they were the principal actors who facilitated the fraudulent transaction. 249.On the issue of general damages, the Plaintiffs pleaded loss, inconvenience, and emotional distress. However, courts have consistently held that general damages are not ordinarily awardable in land disputes unless specifically pleaded and proved. In the case of:- “Kenya Power & Lighting Co. Ltd – Versus - James Njunge [2017] eKLR”, the Court emphasized that damages must be particularized and supported by evidence. The Plaintiffs did not provide sufficient particulars of special damage beyond the refund claim, and therefore their claim for general damages cannot succeed. 250.The issue on costs will be dealt with individually. Issue No. e). Whether the 1st Defendant’s Counter - Claim is merited and whether the resultant sub - divisions—Kwale/Galu Kinondo/2366, 2367, and 2368—are invalid, null, and void 251.Under this sub‑title the Honourable Court shall examine the merits of the 1st Defendant’s Counterclaim and the validity of the resultant subdivisions. The 1st Defendant, Kinuthia Holdings Limited, asserted that it was the absolute and indefeasible owner of parcel Kwale/Galu Kinondo/397, having purchased it for valuable consideration from William Njoroge Mbote in October 1980. To substantiate its claim, the Defendant produced its original title deed, official searches conducted over the years, and evidence of long‑standing occupation and use of the land. This occupation included the presence of a church and kiosk permitted on the property for more than fifteen years, which demonstrated not only paper ownership but also actual possession and control. 252.The Defendant argued that the 2nd Defendant, Obadiah Kioko Kavivya, fraudulently procured registration of the same parcel in 2012 and unlawfully subdivided it into parcels 2366, 2367, and 2368, which were subsequently transferred to the Plaintiffs. The Plaintiffs relied on their title deed for parcel 2368, but candidly admitted that the Lands Registry later declared it fraudulent. The 2nd Defendant failed to demonstrate a valid root of title, and the 3rd Defendant’s role as conveyancing advocate could not cure the defect in ownership. The 4th Defendant, as custodian of land records, was implicated for permitting irregular entries and subdivisions despite the existence of a valid title in the name of Kinuthia Holdings Ltd. 253.The Court is guided by Section 26(1)(b) of the Land Registration Act, 2012, which provides that a certificate of title may be impeached if obtained through fraud, misrepresentation, or an illegal, unprocedural, or corrupt scheme. This provision ensures that the sanctity of title is not absolute where the root of ownership is tainted. In “Munyu Maina case (Supra)”, the Court of Appeal held that once the root of title is challenged, the holder must prove the legality of acquisition beyond the mere production of a title deed. Similarly, in “Arthi Highway Developers Ltd case (Supra)”, the Court held that fraudulent titles cannot confer ownership, even upon innocent purchasers. 254.Applying these principles, the Court finds that the 1st Defendant has proved its ownership of parcel Kwale/Galu Kinondo/397. The sub - divisions into parcels 2366, 2367, and 2368 were fraudulent, null, and void, having been created without any lawful transfer from the 1st Defendant. The Plaintiffs’ title to parcel 2368 was therefore impeachable, and the register must be rectified under Section 80 of the Land Registration Act, 2012 to restore Kinuthia Holdings Ltd as the lawful proprietor of parcel Kwale/Galu Kinondo/397. 255.Accordingly, the Court finds that the 1st Defendant’s Counter - Claim is merited. The subdivisions Kwale/Galu Kinondo/2366, 2367, and 2368 are invalid, null, and void. The Land Registrar is directed to revoke and cancel the fraudulent titles and restore the register to reflect Kinuthia Holdings Ltd as the rightful owner of parcel Kwale/Galu Kinondo/397. 256.I will not insist on this enough, this finding reinforces the principle that the sanctity of title is preserved only where the root of ownership is legitimate, and fraudulent subdivisions cannot override a genuine registered title. It underscores the Court’s constitutional duty under Article 40 of the Constitution of Kenya, 2010 to protect the right to property, but only where such rights are lawfully acquired. It also affirms the Court’s role in rectifying the register to uphold substantive justice and protect lawful proprietors from fraudulent encroachments. 257.From the conduct by the 3rd Defendant herein, this decision further serves as a cautionary precedent: that conveyancing advocates must exercise heightened diligence in verifying the authenticity of titles, and that Land Registrars, as custodians of public records, bear a statutory duty to prevent irregular or fraudulent entries. By declaring the subdivisions null and void, the Court restores confidence in the land registration system and sends a clear message that fraud will not be allowed to defeat genuine ownership. This outcome not only vindicates the 1st Defendant’s proprietary rights but also strengthens the integrity of Kenya’s land governance framework. Issue No. f). Who bears the costs of the suit and the Counter - Claim 258.It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of legal action or proceedings of any litigation. The Black Law Dictionary defines cost to means:-“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. 259.The Proviso of Section 27 (1) of the Civil Procedure Act Cap. 21 holds that Costs follow the events. Section 27 ( 1 ) provides as follows:-“(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.” 260.By the event it means the outcome or result of the legal action or proceeding. Costs are awarded to the successful party as compensation for the expense incurred in litigation, not as a penalty to the losing party. 261.See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 262.Further, in the case of:- “Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR” quoted the case of “Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227” the Court held:-“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.” 263.In the present matter, the Plaintiffs’ claim for ownership of parcel known as land Reference Numbers Kwale/Galu Kinondo/2368 has been found to be without merit, as their title was impeachable and derived from a fraudulent subdivision of parcel Kwale/Galu Kinondo/397. Consequently, the Plaintiffs are not entitled to declarations of ownership or injunctive relief. Their suit therefore fails against the 1st Defendant. 264.On the other hand, the 1st Defendant has successfully proved its ownership of the original parcel Kwale/Galu Kinondo/397 and demonstrated that the subdivisions 2366, 2367, and 2368 were fraudulent, null, and void. The Counterclaim is merited and succeeds. 265.The Honourable Court has also found that the 2nd and 3rd Defendants were directly involved in facilitating the fraudulent transaction, while the 4th Defendant, as custodian of land records, permitted irregular entries and subdivisions. The Plaintiffs, though innocent purchasers, are entitled to restitution of the purchase price against the 2nd and 3rd Defendants, but not to ownership of the land. 266.Accordingly, the Court holds that the 2nd and 3rd Defendants shall bear the costs of refunding the purchase price to the Plaintiffs. The 1st Defendant is awarded the costs of its Counter - Claim against the 2nd, 3rd and 4th Defendants jointly and severally. It is noted that the claim against the 1st Defendant by the Plaintiffs had been withdrawn with no orders as to costs. The withdrawal of the suit against the 1st Defendant was without costs, and therefore no costs are payable in respect of that claim. XI. Conclusion and Disposition 267.Ultimately, having undertaken such an in‑depth analysis of the framed issues herein, the Honourable Court, on the preponderance of probabilities and guided by the balance of convenience, finds that the Plaintiffs have not lawfully acquired ownership of parcel of land known as Land Reference Numbers Kwale/Galu Kinondo/2368, their title having been impeached for fraud. The Court further finds that the 1st Defendant has proved its ownership of the original parcel Kwale/Galu Kinondo/397, and that the sub - divisions to Plot No. 2366, 2367, and 2368 were fraudulent, null, and void. The Plaintiffs, though innocent purchasers, are entitled to restitution of the purchase price against the 2nd and 3rd Defendants. In light of the foregoing, the Honourable Court proceeds to make the following specific orders:-a.That Judgement entered to the effect that the claim by the 1st & 2nd Plaintiffs’ through the Amended Plaint dated 25th April, 2017 filed by Mr. Marcello Perrucchetti and M/s. Marilena Belli, the Plaintiffs herein for ownership and injunctive relief over parcel of land known as land Reference Numbers Kwale/Galu Kinondo/2368 be and is hereby found to lack merit and thus it is and be hereby dismissed.b.That for avoidance of doubt however, the 1st & 2nd Plaintiffs be and are hereby awarded restitution of the purchase price of a sum of Kenya Shillings Thirteen Million Five Hundred (Kshs. 13,500,000.00/=) with interest at court rates from the date of filing suit until payment in full, against the 2nd and 3rd Defendants jointly and severally.c.That the 1st Defendant’s Amended Statement of Defence and Counter - Claim dated 29th August, 2017 be and is hereby found to have merit and thus it is allowed.d.That a declaration be and is hereby issued that the 1st Defendant is the absolute, legal, rightful and/or bona fide registered owner of all that parcel of land known as Land Reference Numbers Kwale/Galu Kinondo/397 with all indefeasible rights, title and interest vested on it by law.e.That a declaration be and is hereby issued that the purported registration of the 1st Defendant as the owner of Plot Number Kwale/Galu Kinondo/397 and the resultant subdivisions Kwale/Galu Kinondo/2366, Kwale/Galu Kinondo/2367, and the registration of the 2nd and 3rd Defendants as owners of Kwale/Galu Kinondo/2368 be and is hereby found to be invalid, null, and void.f.That an order be and is hereby issued compelling the 4th Defendant, the Land Registrar Kwale, to revoke and/or cancel the titles to Plot Numbers Kwale/Galu Kinondo/397, Kwale/Galu Kinondo/2366, Kwale/Galu Kinondo/2367 & 2368 registered in the name of the 2nd Defendant for being null and void.g.That an order be and is hereby issued compelling the 4th Defendant to rectify the land register and to register and/or restore the 1st Defendant as the owner of Plot Number Kwale/Galu Kinondo/397.h.That a permanent injunction be and is hereby issued restraining the Plaintiffs, the 2nd and 3rd Defendants, whether by themselves or through their servants, agents, employees, or anyone deriving title through them, from entering, occupying, leasing, transferring, charging, selling, demolishing structures on, evicting the Plaintiff’s agents, servants, or employees, or in any manner whatsoever dealing with the property known as Plot Number Kwale/Galu Kinondo/397.i.That the 1st & 2nd Plaintiffs’ claim for general damages fails for want of proof.j.That the suit against the 1st Defendant having been withdrawn, no costs are payable in respect thereof.k.That the 1st & 2nd Plaintiffs shall have the costs of restitution against the 2nd and 3rd Defendants.l.That the 1st Defendant shall have the costs of its Counter - Claim against the 2nd, 3rd, and 4th Defendants jointly and severally. It is so ordered accordingly JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS 3RD DAY OF JULY 2026………………………..….………………HON. MR. JUSTICE L.L. NAIKUNIENVIRONMENT AND LAND COURTAT MOMBASA.Judgement delivered in the presence of: -a. M/s. Firdaus Mbula – the Court Assistant.b. M/s. Indesia Advocate holding brief for Mr. Bwire Advocate for the 1st & 2nd Plaintiffs.c. M/s. Ngigi Advocate for the 1st Defendantd. Mr. Morara Onsongo Advocate for the 2nd Defendant.e. Mr. Mugendi Advocate holding brief for Mr. Mureithi Advocate for the 3rd Defendant.f. No appearance for the 4th and 5th Defendants.