https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4275

Shah & another (Suing as Legal Representatives of the Estate of Janendra Shah) v Blue Horizon Properties Limited & 2 others (Environment and Land Case 1 of 2022) [2026] KEELC 4275 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4275 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case 1 of 2022 EK Makori, J July 9, 2026 Between Kamal Jannendra Raichand Shah 1st Plaintiff Vikesh Janendra 2nd Plaintiff Suing as Legal Representatives of the Estate of Janendra Shah and Blue Horizon Properties Limited 1st Defendant The Land Registrar, Mombasa 2nd Defendant The Honourable Attorney General 3rd Defendant Judgment 1.The suit was initiated by a Plaint dated 13 January 2022, filed on 14 January 2022, and later amended on 9 May 2025 after the Court granted leave on 30 September 2024. 2.It is claimed that the original Plaintiff (now deceased) was the registered owner of the land identified by Certificate of Title C.R. 45156, L.R. No. MN/I/889, registered on 24 February 2009. The Plaintiff alleges that the 1st and 2nd Defendants committed fraud, engaged in illegal activities, and colluded to secretly cause a parallel title for the property to be issued in the 1st Defendant's name. 3.The 1st Defendant filed a Statement of Defense on 19 December 2022, denying the claims in the Amended Plaint, and submitted a Counter-Claim on 7 November 2023, stating that they purchased the suit property from Kulthum Ahmed Mohamed under Certificate of Title No. C.R. 23980 for LR No. 889/III/MN, registered on 30 April 1993. 4.The 2nd and 3rd Defendants submitted a written Statement of Defense dated June 26, 2025, and filed it with the Court on June 30, 2025, in response to the Plaintiff's Amended Plaint. They denied allegations of fraud and illegality and asserted that the registration and issuance of the title deed were properly conducted, with the requisite documents, in accordance with legal requirements. 5.At the close of both the Plaintiff's and the Defendants' cases, the Court directed counsel for the parties to file written submissions. 6.I appreciate receiving submissions from counsel for the Plaintiff, the 1st Defendant, and the 2nd and 3rd Defendants, which significantly helped clarify the issues raised in the case. 7.Based on the materials and submissions before me, the issues I frame for this Court's determination are: which of the two titles produced by the parties, the plaintiff and the 1st defendant, is valid and lawful? What appropriate orders should be issued, and who should bear the costs of this suit? 8.The Plaintiff Vikesh Janandra Shah (PW1) testified, relying on filed witness statements and a list of documents, asserting that the property was privately owned from the 1960s, passed through succession to the duly appointed administrator of the estate, and was subsequently sold to the Plaintiff in 2006. The Plaintiff produced a memorandum of sale (page 5 of the Plaintiff’s List of Documents); receipts evidencing prior purchase (page 9 of the Plaintiff’s List of Documents); court documents confirming the administrator’s authority (page 9 of the Plaintiff’s List of Documents); and evidence of possession and ownership by Ravji Ramji, who sold the property (pages 6 and 7 of the Plaintiff’s List of Documents). 9.The 1st Defendant, through its director Abdulbasit Saleh Muhsin, who testified as DWI, asserted in his evidence that the title held by the 1st Defendant was registered on 30 April 1993. Furthermore, the 1st Defendant contends that Title No. C.R. 23980, Plot No. MN/Ш/889 (Orig No. 284/98) has been subdivided into CR 73151, Plot No. MN/III/11764; CR 73152, Plot No. MN/III/11765; and CR 73150, Plot No. MN/Ш/11766, all registered on 26 March 2019. All are under her occupation and have been fully fenced with a perimeter wall since 2010, when this title was first issued. They are therefore superior to Grant C.R. 45156, Plot No. 889/Ш/MN, held by the Plaintiffs and registered on 24 February 2009. 10.The Land Registrar, Sego Manyarkiy, who testified as DW2, presented the complete record and entries regarding the two competing titles. Notably, he furnished the following documents: a copy of the Certificate of Postal Search dated 14th November 2025; a copy of Grant No. CR 45156; a copy of a charge dated 22nd June 2011; a copy of the Certificate of Title Number CR 23980; a letter dated 13th January 2010 from the Chief Land Registration Officer; a copy of a Transfer dated 28th May 2008; a copy of a Discharge of Charge dated 22nd October 2015; a copy of a letter dated 14 March 2019 from the Chief Officer for Lands, County Government of Kilifi; a copy of the Deed Plan for Subdivision No. 11764 (Original No. 889/1); a copy of the Deed Plan for Subdivision No. 11765 (Original No. 889/2); and a copy of the Deed Plan for Subdivision No. 11766 (Original No. 889/3). 11.In his evidence, he stated that the registration sequence shows that the 1st Defendant acquired the suit property by purchase from Kulthum Ahmed Mohamed on 28th of May 2008. The certificate of title No. 23980 was registered on 30th April 1993, while the Plaintiff's title was issued vide a grant dated 12th June 2006 to Jainand Raichand Shah. The grant for CR 45156 was registered on the 24th of February 2009. 12.He testified that the Plaintiff’s title was not acquired by transfer but by the 1st allotment. However, CR 45156 was first registered on February 24, 2009. The Land Registrar's letter dated January 13, 2010, sought to cancel the Plaintiff’s Grant No. C.R 45156. 13.The core issue in this dispute, as rightly submitted by counsel for the parties and supported by judicial precedent, is determining which party—the Plaintiffs or the 1st Defendant—has established a valid legal interest in the land in question. Both this Court and the Appellate Courts have set guidelines for resolving conflicts over competing interests or title to property. The law now explicitly provides that when a title's validity is in question, the owner must do more than show the title deed; they must also substantiate the origin of their interest and demonstrate that their acquisition was lawful and properly conducted. Each party is responsible for providing evidence of a genuine and lawful root of their title or interest. 14.In Dina Management Limited v County Government of Mombasa & 5 others [2021] KECA 503 (KLR), the Supreme Court, citing the Court of Appeal decision in Munyu Maina v Hiram Gathiha Maina, Civil Appeal No 239 of 2009 [2013] eKLR, affirmed that mere possession of a title deed is insufficient to establish ownership. When a title deed is itself subject to challenge, the registered owner must substantiate the lawfulness of the title by showing that the acquisition was legal, properly formalized, and free from encumbrances—interests not recorded in the register—and that the title or lease was obtained through a lawful process. If the procedures preceding the issuance of the title fail to comply with legal requirements, the title cannot be deemed indefeasible. 15.Further, in Mount Pleasant Limited v Mwangi & 3 others [2025] KEELC 7240 (KLR), this Court (Angote J.) held as follows regarding the issue of two competing titles:“The issue of competing titles remains one of the most enduring and complex challenges within Kenya’s land administration system. A title, the document meant to confer security of tenure, has, in many cases, become a source of conflict. 254.As Kiage, JA poignantly remarked in Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) v Registrar & others [2024] KECA 668 (KLR):“Once upon a time, the holding of a title deed, that treasured document that declared the person named therein as the indisputable owner of the landed property, was a ticket to peace and proprietary security. That it was before a vile mix of greed, rapacity and fraud on one hand and corruption mischief, and tampering of records on the other, increasingly rendered many a title deed worthless papers the holding of which, without more, provided neither certitude nor assurance of safety as courts have had to step in to decipher and determine which among two contending instruments of title is genuine and efficacious. The puzzle of competing title deeds over the same property on the ground in contemporaneous existence is now becoming a contest not of dualities of claims, but, as this case shows, one of multiple contestations, each backed by a title deed.” 255.The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) emphasized that when the validity of a registered proprietor’s ownership is questioned, it is insufficient for that person to simply produce the title deed as proof of ownership. The proprietor bears the duty to go further and show that process through which the title was obtained, was lawful, procedurally sound, and free from fraud or irregularity. 256.Where the acquisition process leading to the issuance of a title is tainted with illegality or non-compliance with the law, such a title cannot be sustained. This position was affirmed by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), where the Apex Court was categorical that:“Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible....Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above, the appellant could not benefit from the doctrine of bona fide purchaser.” 257.The Plaintiff submits, and it is indeed the position, that where there are two competing titles, the first in time will prevail. This position was emphasized in the case of Wreck Motors Enterprises v The Commissioner of Lands & 4 others [1997] KECA 284 (KLR), where the court held that:“Where there are two competing titles, the one registered earlier is the one that takes priority.” 258.However, this maxim is only applicable where there are equal equities. In the circumstances, each of the titles has been impugned, and the court is mandated to investigate their roots.” 16.The Plaintiff has asserted fraud against the defendants in connection with the acquisition of the title that the 1st defendant holds. It has been established that demonstrating fraud requires a higher standard of evidence than that required in typical civil disputes. In Fanikiwa Limited & three others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038), & 36 (E039) of 2022 [2023] KESC 105 (KLR)), the Supreme Court explained that fraud, which may occasionally be categorized as a criminal offense depending on the circumstances, must be pleaded and proven with rigor. Moreover, the Court observed that while the civil standard for establishing fraud is not proof beyond a reasonable doubt, it exceeds the balance-of-probabilities standard commonly employed in civil litigation. See also Lanet Hill Company Limited v School Management Committee Lion Hill Primary School & another [2023] KEELC 20098 (KLR). 17.In this matter, the plaintiff was unable to substantiate the claim of fraud purportedly committed by the defendants. 18.Returning to the origin of the titles held by the parties, the evidence on record indicates that the Title Certificate No. C.R. 23980 for LR No. 889/Ш/МN associated with the 1st Defendant was registered on April 30, 1993, and subsequently transferred to the 1st Defendant on June 20, 2008, from the previous registered owner, Kulthum Ahmed Mohamed. 19.The Land Registrar - DW2 affirms the evidence of the 1st Defendant pertaining to the purchase of the subject property. The evidence submitted on 30th July 2025 unequivocally demonstrates that the First Defendant's title predates that of the Plaintiffs by more than fifteen years: the 1st Defendant's Title (C.R. 23980) was issued on 30th April 1993, whereas the Plaintiffs' Title (C.R. 45156) was issued on 24th February 2009. This chronology remains uncontested, as acknowledged by PW1 during cross-examination. 20.Further substantiating the 1st Defendant's assertion is the uncontested evidence of physical occupation. The 1st Defendant has been in possession of the property and has constructed a perimeter wall around it since 2010. The Plaintiff initiated legal proceedings only in January 2022, more than twelve years later, without providing an explanation for the significant delay or for the lack of contest regarding the occupation or the erection of the perimeter wall. 21.The testimony of the Land Registrar, the documents presented by the 2nd Defendant dated 19th November 2025, and the 2nd Defendant's Further List of Documents dated 20th November 2025 substantiate the case of the 1st Defendant. They demonstrate that her title, C.R. 23980, Plot No. MN/IШ/889, registered on 30th April 1993, holds precedence and priority over the Plaintiff's C.R. 45156, Plot No. 889/Ш/МN, registered on 24th February 2009. Furthermore, the Land Registrar's letter dated 13th January 2010 endeavored to annul the Plaintiff's Grant No. C.R. 45156. 22.PW1 asserted that the subject property was originally acquired from Ravji Ramji Manji. However, Plaintiffs' exhibits 5-9, as enumerated in the List dated 13th January 2022, do not reference the suit land, C.R 45156, Plot No. 889/I/МMN. The Plaintiff failed to substantiate a definitive root of title. PW1 was unable to produce a certificate of title registered in the name of the alleged vendor, Ravji Ramji Manji. Furthermore, the Plaintiff's grant indicates that the original Plaintiff (deceased) was the "1st Allottee from the Government of Kenya," which conflicts with the claim of purchase from a prior owner and suggests a potentially defective root of title. 23.In contrast, the 1st Defendant has provided a clear chain of ownership, purchasing the land from Kulthum Ahmed Mohamed, whose title was registered in 1993. 24.PW1 also stated that previous litigation in 2006 concerning the property had been resolved in their favor. However, during cross-examination, it was revealed that the litigation he referred to did not pertain to the suit property, Plot MN/IШ/889. 25.Based on the aforementioned analysis and the evidence supplied by the parties, as well as the records maintained by the 2nd defendant concerning the origin of the titles held by the parties, I am inclined to conclude that the 1st Defendant has demonstrated possession of a superior title both in terms of timing and through evidence of occupation and a clear derivation of title. The Plaintiff has failed to meet the burden of proof regarding the validity of their subsequent grant. 26.Consequently, I will make the following final orders:a.A Declaration is hereby made that Certificate of Title C.R.45156 for Plot 889/III/MN, held by the Plaintiff, is null and void ab initio.b.A declaration is hereby made that the Certificate of Title C.R. 23980 held by the 1st Defendant is the valid and lawful title to the suit property Plot No. 889/III/MN.c.The Plaintiff's suit is dismissed in its entirety with costs.d.The 1st Defendant's Counter-Claim succeeds as prayed with costs. DATED, SIGNED, AND DELIVERED VIRTUALLY IN NYERI ON THIS 9TH DAY OF JULY 2026E. K. MAKORIJUDGEMs. Kinuva for the PlaintiffMr. Mogaka for the 1st DefendantMr. Munga for the 2nd and 3rd DefendantsDenis - Court Assistant