https://new.kenyalaw.org/akn/ke/judgment/keca/2026/978

Shanka & another v Kanyolo (Suing on behalf of the Estate of Herman Syanda Kanyolo) & 8 others (Civil Appeal 669 of 2019) [2026] KECA 978 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 978 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 669 of 2019 M Ngugi, GV Odunga & DK Musinga, JJA May 15, 2026 Between David Samoine Shanka 1st Appellant Miamis Properties Ltd 2nd Appellant and Rachael Mwikali Kanyolo (Suing on behalf of the Estate of Herman Syanda Kanyolo) 1st Respondent Naomi Nyambura Wakaba 2nd Respondent Sigma Supplies Ltd 3rd Respondent Henry Simaru Kisia 4th Respondent Dipak Shah 5th Respondent National Land Commission 6th Respondent District Land Registrar, Kajiado 7th Respondent Inspector General of Police 8th Respondent Attorney General 9th Respondent (Being an Appeal against the Judgment of the Environment and Land Court of Kenya at Kajiado (C. Ochieng, J.) delivered on 20th May 2019 in ELC No. 73 0f 2017)) Judgment 1.The late Herman Syanda Kanyolo (Herman), who is represented in these proceedings by the 1st respondent was, before his death, the proprietor of land parcel Nos. Kajiado/Kaputiei North/6742 and Kajiado/Kaputiei North/6743 (the suit properties), which were later registered in the names of Naomi Nyambura Wakaba (Naomi), also deceased, who is represented in these proceedings by the 2nd respondent. Naomi then purportedly sold the suit properties to the appellants. The 1st appellant is a director of the 2nd appellant. The appellants, on their part, sold and transferred the said plots, Kajiado/Kaputiei North/6742 and Kajiado/Kaputiei North/6743, to the 3rd and 4th respondents respectively. The 3rd respondent, at the request of the 1st appellant, based on an alleged existence of a police case, later returned his title to the 1st appellant and was refunded his purchase price. The returned plot, being Kajiado/Kaputiei North/6742, was subsequently sold and transferred to the 4th respondent by the 1st appellant. 2.Before the trial court, the 1st respondent sued the appellant and the other respondents claiming:a.A permanent injunction restraining the appellants, 2nd, 3rd, 4th and 5th respondents by themselves, their agents, servants or otherwise howsoever from trespassing, encroaching, alienating, transferring, selling, leasing and charging or in any other way dealing in L.R. Nos. Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743;b.A declaration that at all material times to the suit, the late Herman Syanda Kanyolo was and still is the bona fide owner and proprietor of titles Nos. Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743;c.A declaration that the 2nd appellant’s title issued on the 27th June, 2001 as well as those subsequently issued to the 3rd, 4th and 5th respondents in respect to Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743 were obtained fraudulently;d.A declaration that the processing and issuance by the Commission of Lands and the Registrar of Titles of the Title Deed in respect of Nos. Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743 was unlawful and hence a nullity;e.In view of prayer (d) above, the court do order rectification of the register by the Commissioner of Lands and the Registrar of Titles;f.Such further relief or remedy as the Court may deem just and expedient;g.An order for costs of the suit. 3.The 1st respondent’s case was: that the suit properties were irregularly transferred from the deceased to the late Naomi by forging Herman’s signature on the transfers dated 27th May 2001; that the transfers were found by the forensic document examiner to have been fraudulent as they were not signed by Herman; that as a result, Herman lodged a complaint with the police and Naomi was charged in court, but she passed away before the case was concluded; that although a restriction was registered against the titles, the same was removed on 12th August 2010, allegedly at the instance of the Divisional Criminal Investigations Officer (DCIO), without the 1st respondent’s mother, who survived Herman, being notified; and that through fraud, illegality, error, mistake and negligence, the defendants in the case colluded and caused the suit lands to be transferred from Herman through to the 4th respondent. 4.The suit was not defended by the 2nd respondent. 5.On their part, the appellants denied the allegations of fraud and illegality attributed to them and insisted: that they purchased their respective properties based on representations from the 2nd respondent, which representations they believed to be true; that the parties in the sale transaction were represented by counsel; that they sold the properties to the 3rd and 4th respondents; that the 3rd respondent, however, resold his property, Kajiado/Kaputiei North/6742, back to the 1st appellant, after which the land was resold to the 4th respondent who went into possession immediately; that the transaction was handled by an advocate, PC Onduso; and that the suit was barred by limitation of time. 6.The 3rd respondent’s defence was that he was not aware of the criminal case against Naomi and the fact of the removal of the caution. It was his case that he was not party to the alleged fraud and that he purchased land parcel number Kajiado/Kaputiei North/6742 for value, a transaction that was carried out by a competent advocate, PC Onduso. At the time of the said transaction, he honestly believed that the said land belonged to the 1st appellant who held a title to it and no restriction was registered against it. 7.In his evidence, the 3rd respondent stated: that the 1st appellant requested him to return the land to him as there were unresolved police issues in respect of the said land which he did not want the 3rd respondent to get embroiled in; that the 1st appellant refunded him his money at the market price and he surrendered the title back to him; and that he had no dealings with land parcel number Kajiado/ Kaputiei North/ 6743. 8.The 4th and 5th respondents, in their defence, while pleading that the claim offended the Limitation of Actions Act, denied the imputation of fraud, error and mistake on their part. They contended that the 5th respondent, a director of the 4th respondent, has no proprietary interests or rights over the suit properties and was wrongly sued as there was no cause of action against him. It was the said respondents’ contention that the 4th respondent purchased the suit properties after undertaking due diligence and confirming the said lands belonged to the appellants, and that at the time of the purchase, there was no encumbrance registered against the titles to the suit properties. According to them, the 4th respondent is a bona fide purchaser for valuable consideration and adhered to all the legal procedures in acquiring the suit properties, and that upon payment of the purchase price, it took possession and developed the suit properties by erecting thereon permanent buildings without any objection from the 1st respondent. It was their case that the 2nd appellant had a genuine title bestowing upon it all proprietory rights of a registered owner hence had a valid and legal interest/right to pass over the suit properties to the 4th respondent. Pleading innocence to the particulars of fraud, error, mistake and negligence alleged by the 1st respondent, they denied that they unlawfully, fraudulently, recklessly and/carelessly dealt with the suit properties and asserted that the same had never belonged to the 1st respondent as alleged. 9.From the record, the 6th respondent does not seem to have participated in the proceedings. 10.The 7th, 8th and 9th respondents, in their defence while denying the allegations in the plaint, contended that the removal of the restriction was in accordance with the laid down legal procedures and that the 7th respondent acted within the law.They averred that if at all the suit properties were transferred and registered in the name of Naomi and subsequently transferred to the appellants, the 3rd and the 4th respondents, the registration was on the basis of the documents presented to the 7th respondent’s office, who exercised due diligence and registered them in the belief that they were genuine. 11.In support of the said respondents’ case, the 7th respondent, the Principal Land Registrar, insisted at the hearing that the transfer in favour of the 4th respondent was legally done upon verification and confirmation that all documents/requirements were adhered to. Further, that it is the 2nd appellant who transferred the land to the 4th respondent. 12.The learned Judge, in her judgement, identified the issues for determination as follows: 1.Whether the suit is statute barred. 2.Whether the 2nd respondent had the legal capacity to transfer the suit lands to the 1st appellant. 3.Whether the 3rd respondent owed a duty of care to the 1st respondent in dealing with land parcel number Kajiado/Kaputiei North/ 6742. 4.Whether the 4th respondent is a purchaser for value without notice. 5.Whether the 4th, 5th, 6th, 7th, 8th and 9th respondents owed a duty of care to the 1st respondent while dealing with the suit lands. 6.Whether the 1st respondent was entitled to the orders sought in the plaint. 7.Who should bear the costs of the suit? 13.On the issue of limitation, the learned Judge held that since the 1st respondent knew of fresh transactions in 2004 as well as in 2010, limitation period begun to run when the 1st respondent learned of the fresh transactions over the suit lands. Therefore, the suit herein was not statute barred. 14.On whether the 2nd respondent had the legal capacity to transfer the suit properties to the appellants, the learned Judge found that the evidence on record revealed that as at the time the 2nd respondent entered into a sale agreement dated 19th April 2004 with the 1st appellant to sell the suit properties to the appellants, the properties were registered in the name of Naomi Nyambura Wakaba who was already deceased. The learned Judge cited section 45(1) as read with section 55 of the Law of Succession Act as well as this Court’s decision in the case of Winnie Kinyua Kaburu V Ali Juma Abdirahman & Another (2018) eKLR, in which it was held that an agreement entered into in respect of a deceased person’s estate without letters of representation is void. The court found that the purported sale agreement between the 2nd respondent and the 1st appellant was void as the 2nd respondent lacked the legal capacity to deal with Naomi’s estate without Letters of Administration Intestate. 15.Regarding the issue whether the 3rd respondent owed a duty of care to the 1st respondent in dealing with land parcel number Kajiado/Kaputiei North/6742, the learned Judge found that the 3rd respondent was not a party to any form of fraud as alleged by the 1st respondent. Since the 3rd respondent rescinded the sale and got a refund of his purchase price from the 1st appellant, he did not owe a duty of care to the 1st respondent after that. 16.Regarding the issue whether the 4th respondent was a bona fide purchaser for value without notice, the learned Judge noted that from the exhibited report by Antipas Nyanjwa, a Forensic Document Examiner, dated the 11th August 2001, it was confirmed that the signature on the transfer document purportedly signed by Herman transferring the suit lands to Naomi could not have been his. The learned Judge noted that there was no consent from the Land Control Board to confirm the transfer of land from Herman to Naomi and from Naomi to the 3rd respondent. Further, there were no documents to confirm the transfer from the 2nd appellant to the 4th respondent. The court noted that the alleged letter by the DCIO dated 13th April 2004, referred to in the Green Card, directing the removal of the restriction was not produced in court. The learned Judge took note of the evidence of DW2, that no transfers could be effected without the presence of physical documents. 17.The learned Judge noted the discrepancies and lack of coherence in the evidence and documentation regarding the suit properties and concluded that the appellants were the masterminds of the alleged transfers of the suit lands to the respective parties as emerged from the 1st appellant’s request to the 3rd respondent to transfer Kajiado/Kaputiei North/6472 back to him, alleging existence of a police case. The learned Judge noted that the 1st appellant failed to produce any documents in court to prove the transactions and that, in addition, there were very many contradictions in respect of the transfer of the suit lands from the appellants through to the 4th respondent. According to the learned Judge, there was evidence that the 1st appellant was transferring land which he did not even own, as evidenced by the entries in the Green Card and the sale agreements between him and the 4th respondent. 18.On the issue whether the appellants had a good title to pass to the 4th respondent, the learned Judge relied on this Court’s decision in the case of Arthi Highway Developers Limited V West End Butchery Limited & 6 others (2015) eKLR, the Uganda Court of Appeal case of Katende v Haridas and Company Limited [2008] 2 EA 173 (Katende) on what amounts to bona fide purchaser for value and found that there was no explanation of the contradictions in dates between the Green Card and the Title Deeds and that some documents were not produced. The learned Judge noted that from the Green Cards for the two parcels of land, there was a flurry of transactions recorded therein between 12th August 2010 and 13th August 2010 involving the removal of the restriction that had been subsisting for a while on the suit properties and the suit properties being swiftly registered in the name of the 2nd appellant on 13th August 2010, after which the land was transferred to the 4th respondent the same day. Further, although the sale agreement was entered into and purported consent obtained in April 2010, it took almost five months before the registration to the 4th respondent was perfected. The learned Judge found that in light of the contradictions in the dates of the transactions between the appellants and the 4th respondent in respect of the suit lands as well as her finding that the appellants were not the owners of the suit properties at the time of transfer, and hence did not have a proper title to pass to the 4th respondent, the 1st respondent proved fraud on the part of the appellants and the 2nd, 4th and 5th respondents. Due to the glaring inconsistencies noted, the learned Judge found that the 4th respondent could not be termed as a bona fide purchaser for value without notice as he purchased lands which the vendor did not even hold titles to at the time of executing the sale agreement. Since the 5th respondent was a director of the 4th respondent and participated in the sale transaction in respect of the suit properties, the learned Judge disagreed with the contention that there was no cause of action against the 5th respondent. Based on this Court’s decision in the case of Dennis Mukhulo Ochwada & another v Elizabeth Mungai Njoroge & Another (2018) eKLR, the learned Judge found that since it was the appellants who hoodwinked the 4th respondent to purchase the suit properties that did not legally belong to them, the 4th respondent was entitled to be compensated by the appellants for the suit properties as well as for the developments thereon. 19.The learned Judge found the contention by the Land Registrar that the restrictions dated 13th April 2004 and 12th August 2010 on the suit lands were removed on directions by the DCIO untenable as the Land Registrar was aware that there had been a dispute in respect of the suit lands and ought to have notified the person who had lodged the complaint before the restrictions could be removed. 20.Regarding the orders sought, the learned Judge adverted to her finding that the appellants and 2nd respondent did not have a good title to pass to the 4th respondent and that the 4th respondent was not a bona fide purchaser for value without notice. From the record, the learned Judge found that there was authentic transfer from Betty Wambui Radovan to Herman Syanda Kanyolo, and noted that the said Betty Wambui Radovan did not contest Herman’s title. The learned Judge considered sections 136, 137 and 138 of the Registered Land Act (repealed) which placed a duty on the Land Registrar to register a restriction and not to remove the same unless the proprietor was informed, and given an opportunity to be heard. She also took into account the unexplained inconsistencies in the documents presented and the contradictions in the dates and, based on the case of Kinyanjui Kamau v George Kamau Njoroge, Civil Appeal No. 132 of 2005, considered the fact that the appellants were well aware of the dispute in respect of the suit properties before the same were registered in the 4th respondent’s name and held that the suit properties belonged to the estate of Herman Syanda Kanyolo. On the authority of section 143 of the repealed Registered Land Act, which is similar to section 80 of the Land Registration Act, the learned Judge found that a case had been made out for rectification of the titles to the suit properties and for reverting them back to the estate of Herman Syanda Kanyolo. 21.The learned Judge, in the premises, issued the following orders:i.A permanent injunction restraining the appellants, the 2nd, 3rd, 4th and 5th respondents by themselves, their agents, servants or otherwise howsoever from trespassing, encroaching, alienating, transferring, selling, leasing and charging or in any other way dealing in L.R. Nos. Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743;ii.A declaration that at all material times to this suit, the late HERMAN SYANDA KANYOLO (deceased) was the bona fide owner and proprietor of titles Nos. Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743;iii.A declaration that the titles issued on the 27th June 2001 as well as those subsequently issued in respect to Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743 were obtained fraudulently;iv.A declaration that the processing and issuance by the Land Registrar, Kajiado of the Title Deeds in respect of Nos. Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743 was unlawful and hence a nullity;v.An order that the Chief Land Registrar and Registrar of Lands, Kajiado do rectify the Land Register to reflect that Kajiado/Kaputiei North/ 6742 and Kajiado/Kaputiei North/ 6743 respectively belong to the estate of the late HERMAN SYANDA KANYOLO 22.Costs of the suit were awarded to the 1st respondent to be borne by the appellants and the 2nd respondent equally. 23.Aggrieved, the appellants moved to this Court to challenge the decision on some 15 grounds which we need not replicate here. 24.We heard the appeal on the Court’s virtual platform on 8th December 2025 when learned counsel, Mr Kevin Wakwaya, appeared for the 1st respondent. Neither the appellant nor the other respondents were present despite due service of the hearing notice. Nevertheless, since the appellant’s submissions were on record, we shall consider the same in making our determination in this appeal. Mr Wakwaya relied entirely on his written submissions. 25.The appellants submitted that the learned Judge erred in law and fact in failing to make a finding that, in the absence of a Grant of Letters of Administration in respect of the Estate of the deceased, Naomi Nyambura Wakaba, there was no competent suit against her estate, thereby rendering the entire suit incompetent and liable to be struck out and/or dismissed. According to the appellants, no evidence was placed before the trial court on whether Grant of Letters of Administration had been issued to the 2nd respondent, Mary Nduta Wakaba. It was their case that the Gazette Notice dated 8th October 2004 indicating that one Mary Nduta Wakaba had petitioned for Letters of Administration cannot be equated to actual Grant. 26.In support of this submission, the appellants cited this Court’s decision in the case of Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another (1982-88) 1 KAR 1049 and Omega Commercial Services Limited v Francis Kaigua Karitu & Another [2017] eKLR, for the position that no suit can be brought against a defendant on behalf of an estate of a deceased person unless that defendant is a legal representative of the deceased’s estate. 27.On behalf of the 1st respondent, it was submitted that on the authority of the Supreme Court decisions in Dina Management Limited v County Government of Mombasa & 5 others (2023) eKLR, Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR) and Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR), Naomi’s title was obtained through an illegal or irregular process and was invalid, hence a current owner cannot be deemed a bona fide purchaser. Consequently, Naomi’s "estate" held nothing of value to be administered. Therefore, even if letters of grant of administration were to be obtained by the 2nd respondent, she could not purport to use them to illegally effect a transfer of property that was not validly owned by the deceased. Since the challenge was on the regularity and legality of the transfer of the suit properties from Herman to the 5th respondent, it was for the 4th respondent to demonstrate the root of its title in accordance with the Supreme Court decisions. By failing to so establish the root of title, the entire transaction and alleged transfer from Herman fails, whether the 2nd respondent is a party or not. 28.It was submitted that the 2nd respondent, having held herself out as the legal representative of the Estate of Naomi Nyambura Wakaba (deceased) and executed a sale agreement for the transfer of the suit properties pursuant to which the suit properties were transferred to the appellants and subsequently the 4th respondent, the 2nd respondent was thus sued in the same capacity she held herself. 29.It was contended that the joinder of the 2nd respondent was consequent to the ruling of the court allowing the amendment of the plaint pursuant to the 1st respondent’s application for joinder of the 2nd respondent which order was not challenged. 30.In our view, the issue whether or not the 2nd respondent was a legal representative of the estate of Naomi Nyambura Wakaba could only have been raised by the 2nd respondent. The 2nd respondent having failed to file a defence and to participate in the proceedings, pursuant to Order 2 rule 12(3) of the Civil Procedure Rules, which states that “there can be no joinder of issue on a plaint or counterclaim”, there was no joinder of issue as regards the averments made by the 1st respondent against the 2nd respondent including the 2nd respondent’s capacity to be sued on behalf of the estate of Naomi Nyambura Wakaba. The appellants cannot, in this appeal, competently raise the issue of the 2nd respondent’s capacity to be sued when that issue did not arise in the court below. In any case, even if the suit against the 2nd respondent was incompetent, that could not, necessarily, render the suit against the other defendants incompetent. This ground of appeal fails. 31.It was the appellants’ position that the trial Court: reached a wrong conclusion that Naomi had no valid title from Herman in the absence of any evidence; misdirected itself in admitting and relying on a document examiner's report as proof of fraud in the transfer of the suit properties from Herman to Naomi contrary to the position in Omega Commercial Services Limited v Francis Kaigua Karitu & Another [2017] eKLR that expert evidence ought to be produced by the expert himself and the guidelines for admission of such evidence; and erred in failing to take into account the submission and authorities presented before her by the appellants contrary to this Court's holding in Rose Kaiza v Angelo Mpanju Kaiza (2009) eKLR. 32.Responding to the admissibility and probative value of the Forensic Examiner’s Expert Report, the 1st respondent submitted that the report was produced in evidence by the 1st respondent without any objection from any of the defendants, including the appellants, and hence became part of the record and an objection to its admissibility cannot, on the authority of this Court’s decision in Commissioner of Customs & Excise v Hatangimbabazi [2023] KECA 380 (KLR) and Joel Muga Opija v East African Sea Food Limited [2013] KECA 181 (KLR), be raised for the first time on appeal. On the authority of the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR), it was the 1st respondent’s case that the court was entitled to apply its judicial mind to it, together with other evidence, in determining its relevance and the veracity of its contents at the final determination of the case. Since section 77(3) of the Evidence Act gives the court discretion to call such a maker if the court thinks it fit so to do, it was the 1st respondent’s case that the appellants did not demonstrate that the trial court did not properly exercise its discretion under the said provision. 33.It is true that the said report was admitted in evidence without objection by any party, including the appellants. The appellants having squandered their right to object to its admissibility cannot be heard, at this stage, to raise an objection which ought to have been raised at the hearing. In the case of Wellington Nganga Muthiora v Akamba Public Road Services Limited & Another Civil Appeal No. 260 of 2004 [2010] 2 KLR 39, a police abstract was produced by the plaintiff in evidence without any objection from the defendant. When the issue of its admissibility was raised before this Court, in dismissing that ground, the Court held that:“The appellant produced a police abstract which stated that the first respondent was the owner of the vehicle and that was prima facie evidence. The first respondent did not challenge the production of the police abstract by the appellant on the basis either that he was not the maker of it or that the contents were not admissible or were not correct. The first respondent let it be produced without raising a finger. In cross-examination by the learned Counsel for the first respondent, the allegation in the police abstract that the first respondent was the owner was not challenged, though the other contents of the abstract such as whether indeed the appellant was a passenger in the same bus were challenged by clear questions as to whether the appellant’s name was in the passenger manifest and whether he had a ticket as evidence that he was in the passenger bus. In such a situation where the police abstract’s contents pertaining to ownership of the vehicle was not challenged, it remained prima facie evidence and when the respondents offered no evidence in their defence, such prima facie evidence was not rebutted and it remained valid, unrebutted evidence before the court.” 34.We find no substance in this ground of appeal. 35.The appellants further contended that the learned Judge erred in law and fact in her appreciation of the burden of proof of fraud in civil cases and misapprehended the facts placed before her, thereby reaching a wrong conclusion with regard to proof of fraud and illegality against the defendants. It was contended that the learned Judge failed to appreciate the manner of pleadings and standard of proof where fraud is alleged as was stated in the case of Vijay Morjaria v Nansingii Madhusingh Darbar & Another [2000] eKLR. According to the appellants, in the instant case, the fraud and illegality allegations against the defendants before the trial court were merely generalized and lacked specificity and were generally unproven and the purported particulars of fraud the trial Judge referred to as having been proven were neither pleaded nor proven by the 1st respondent as held in the Judgment. Moreover, the learned Judge never found any of the government officers sued guilty of fraud yet the particulars she relied on, to wit discrepancies between the green cards and one title document and the removal of restrictions, were matters beyond the reach and performance by the 1st - the 6th defendants, who, in any case, were represented by advocates. 36.Responding to this ground, the 1st respondent’s position was that fraud and illegality were specifically pleaded with extensive particulars and reference was made to paragraph 29 of the amended plaint. On proof, it was submitted that the learned trial judge's finding on fraud was not based on a single fact but on a cumulative and overwhelming body of evidence including: the root forgery; the Forensic Report proving the initial transfer to Naomi was forged; illegal conveyance by the 2nd respondent without Letters of Administration, a blatant illegality under section 45 of the Law of Succession Act; transactions without title wherein the appellants and others repeatedly executed sale agreements and transfers at a time when the purported vendors had no registered title; absence of Land Control Board consents; and unlawful removal of restrictions. Based on the case of Rosemary Wanjiku Murithi v George Maina Ndinwa [2014] KECA 624 (KLR), where this Court held that proof of fraud involves questions of fact, the 1st respondent submitted that the learned Judge correctly held that the combined effect of these illegalities and irregularities, which the appellants either participated in or turned a blind eye to, constituted fraud and thus established the claim of fraud. 37.There is no doubt that fraud must be pleaded and proved, and that the standard of proof is higher than the usual standard in civil cases of balance of probabilities, although not as high as in criminal case where the standard is beyond reasonable doubt. This was restated by this Court in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), where it 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 13thEdition 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 v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308).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 Lawrence V Lord Norreys (1880) 15 App. Cas. 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”. 38.What is required is that the pleader distinctly sets out the facts that constitute what amounts to fraudulent conduct. In the amended plaint, the 1st respondent particularised what she deemed as fraudulent actions as: the forgery of Herman’s signature on the purported transfer document in favour of Naomi; the entry into an agreement for sale between the 2nd respondent and the purported transfer by the 2nd respondent of the suit property to the 3rd respondent and the appellants when the 2nd respondent had no grant of letters of administration; the unprocedural removal of the restriction which was placed on the suit parcels of land by Herman; and the inconsistencies and contradictions regarding the documents in respect of the transactions involved in the transfer of the suit properties. 39.In the judgement, the learned Judge found, based on the analysis of evidence: that the purported Sale Agreement between the 2nd and 3rd respondents was void as the 2nd respondent lacked the legal capacity to deal with Naomi’s estate without Letters of Administration Intestate; there was no consent from the Land Control Board authorising the transfer of land from Herman to Naomi and from Naomi to the 3rd respondent; there were no documents confirming transfer from the 2nd appellant to the 4th respondent; the letter from the DCIO dated 13th April 2004 referred to in the Green Card as directing the removal of the restriction was not produced in court; whereas the title for Kajiado/Kaputiei North/6743 was issued to the 4th respondent on 22nd February 2010, the Green Card indicated that the title was issued on 12th August 2010; that while the title for Kajiado/Kaputiei North/6742 was issued on 13th August 2010 as per the Green Card, the Sale Agreement between the 2nd appellant and 4th respondent was dated 13th April 2010; that the 5th respondent confirmed that the Sale Agreement executed in respect of Kajiado/Kaputiei North/6743 disclosed the owner of the land as Naomi Nyambura Wakaba while the owner of Kajiado/Kaputiei North/6742 was indicated as the 3rd respondent; that from the Green Cards, the 2nd appellant did not own the suit lands at the time of signing the Sale Agreements; that notwithstanding that, the consent of the Land Control Board dated 14th April 2010, which only referred to parcel number Kajiado/Kaputiei North/6743, revealed the 2nd appellant as the owner of the suit land at that time; that whereas the transfer document for Kajiado/Kaputiei North/6742 was dated 21st April 2010, by that time the 2nd appellant was not the owner of the suit land; that the 5th respondent did not produce any searches he conducted before purchasing the suit lands; that he confirmed that the title for Kajiado/Kaputiei North/ 6743 was in the name of the 2nd appellant but did not do so as regards the title for Kajiado/Kaputiei North/6742. 40.From the evidence on record, the 1st appellant admitted that while the Green Card for Kajiado/Kaputiei North/6743 stated that a title deed was issued to the 2nd appellant on 13th August 2010, the title deed indicated that the same was issued on 22nd February 2010; that the 1st appellant was unable to produce copies of Land Control Board consent, transfer documents and title deeds claiming that he left them at his lawyers’ offices. 41.From all the foregoing, we find no reason to fault the learned Judge for finding that the transfer of the suit properties from Herman to Naomi and from Naomi to the appellants was tainted with fraud. This is due to such factors as: the unchallenged evidence that the transfer from which Naomi claimed proprietorship was forged; the entry into sale agreements by the 2nd respondent in respect of properties registered in the names of Naomi without going through succession proceedings; the discrepancies in the documentation and the lack of the necessary documents and consents; and the fact of removal of the restrictions, followed by the immediate transfers of the suit properties. This ground must fail. 42.The learned Judge was faulted for deciding the case against the weight of evidence and on misapprehension and misapplication of the law, thereby wrongly granting reliefs not proven to the required standard. According to the appellants, no evidence was given to sustain the case against the 5th respondent who was merely a director of the 4th respondent, and no evidence was given sufficient to dislodge the 4th respondent’s defence of being a bona fide purchaser for value, in possession and without notice of defect in title, if any. It was submitted that the learned Judge granted orders of injunction, declaration, rectification of title and costs without the 1st respondent having proved her case to the required standards. 43.On the issue whether the appellants were bona fide purchasers for value and, therefore, protected by the sanctity of title, the 1st respondent’s submission was that the appellants were not innocent purchasers for value since they did not meet the threshold of an innocent purchaser for value as set out in Katende because: they never held a valid title as the vendor from whom they purchased the suit properties had no valid title to pass, their root of title being a forgery; from their conduct, the good faith and lack of knowledge was not met since they failed to conduct any meaningful due diligence as a simple official search would have revealed the restrictions and the troubling history of the titles; their failure to inquire, especially in the face of suspiciously timed transactions and the absence of basic documents, amounts to wilful blindness, which amounts to fraud; they were further found to have participated in the irregularities and illegalities in the manner the suit property moved to them; and lastly, regarding valuable consideration, even if consideration was paid (which was not satisfactorily proved), it cannot sanctify a title born of and nurtured by fraud and illegality. In any event, the Supreme Court decisions of Dina Management Limited v County Government of Mombasa & 5 others (supra), Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR) and Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR) firmly established that a title cannot be rendered valid merely because it was acquired by a bona fide purchaser, if its root is tainted with illegality. Accordingly, once the forgery, which is an illegality, was proved, all titles subsequently obtained in respect of the suit properties automatically became invalid. 44.Odoki, JA., sitting in Uganda Court of Appeal Civil Appeal No. 12 of 1985, David Sejjaka Nalima v Rebecca Musoke, reported in Vol. V of the Kampala Law Reports at page 132 cited Assets Co. Ltd v Mere Roihi & Others [1905] AC 176; 92 TLR 397, Pilcher v Rawlings [1872] 7 CH. APP. 259; Wilken v Spooner [1911] 1 KB 473; Attorney General v Bishopsphated Guano Co. [1879] 11 CH.D 327, and stated that if it is shown that the purchaser’s suspicions regarding the ownership of the land were aroused and that he abstained from making inquiries for fear of learning the truth, fraud may be properly ascribed to him. He further stated that while the burden of proving the case lies on the plaintiff, it is well settled that the onus of establishing the plea of a bona fide purchaser lies on the person who sets it up. That plea, it was held, is a single plea which is not sufficiently made out by proving purchase for value and leaving it to the plaintiff to prove notice if he can. 45.In the case before us, the appellants must have known of some defects in the titles or, at least, from their conduct of recalling the title issued to the 3rd respondent, were suspicious of the titles. The “police issues” that led them to recall the said title must have been the complaint made against Naomi by Herman since there was no other alleged complaints. Notwithstanding that fact, the restrictions placed on the titles were removed and the titles transferred to the 4th respondent. In those circumstances, fraud was properly inferred by the learned Judge. Our view is reinforced by the opinion of Mukasa- Kikonyogo, DCJ in Katende that:“Fraud can be participatory which means the party participates in fraudulent dealings. However, fraud can be imputed on a person, that is when he or she was aware of the fraud and condoned it, or benefited from it or used it to deprive another person of his rights. In short all those who actually participate in the fraudulent transaction and who had knowledge of it are privy and have notice of fraud.” 46.It is also clear that the 2nd respondent had no title to pass to the appellants. At the time that she was purporting to enter into the sale agreements with the appellants, the suit properties were still in the name of Naomi, who was deceased. The 2nd respondent had by then not obtained grant of letters of administration in respect of the estate of Naomi. She clearly had no capacity to sell the suit properties. As was held in Katende:“This was not a case of a mere irregularities (sic) but a case of a person who had no title to pass to a purchaser. The appellant claims a title tainted with fraud from the beginning up to the time of sale of the suit property. The irregularities in the substitute certificate rendered it null and void. Similarly, any document based on it was of no effect for the same reasons. Firstly, the instrument purportedly transferring the title was written in respect of another piece of land. There was no way title could have been passed. The issue was not of irregularities in the registry only but the predecessor had no title to pass which eventually was transferred to the appellant. There is no doubt that the appellant benefited from and took advantage of the fraudulent transactions. 47.In order for a plea of bona fide purchaser for value without notice to succeed, Katende sets out the conditions that are to be met and these are that a bona fide purchaser is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly and must prove that:1)he holds a certificate of title;(2)he purchased the property in good faith;(3)he had no knowledge of the fraud;(4)he purchased for valuable consideration;(5)the vendors had apparent valid title;(6)he purchased without notice of any fraud; and(7)he was not a party to the fraud. In this case, at the time of the alleged sale by the 2nd respondent to the appellants of the suit properties, the 2nd respondent had no title in respect thereof yet purported to transfer them to the appellants. The appellants, had they carried out due diligence, ought to have discovered, without any difficulty, that the 2nd respondent had no title as part of the documentation was in the name of Naomi and not the 2nd respondent. They could also have discovered the existence of the restrictions. Even when they realised that the titles were not as clean as they ought to have been, they proceeded to sell the property that they had recalled from the 3rd respondent to the 4th respondent. 48.The appellants seem to be of the view that since the transactions were handled by an advocate, P.C Onduso, who was not called to testify, the inadequacies in the transactions ought not to be ascribed to them. However, in Katende, it was held that:“Whether the appellant had notice or not, decisions taken by his agents, namely, lawyers or auctioneers on his instructions must be binding on him. On the record before the court it is hard to believe that any agent handling the transaction on the suit property would fail to note the glaring irregularities before advising their client to buy the suit property. In the present case, the appellant told the court that almost everything was done for him and that his lawyers carried out a search in the Land Registry and found the suit property free of encumbrances. In the court’s view the search was not done with diligence as a proper search would have brought out all the fraudulent dealings on the suit title. As the appellant’s advocates, they should have discovered that the relevant documents were not signed by the Registrar which rendered them null and void. Lands are not vegetables that are bought from unknown sellers but are valuable properties and buyers are expected to make thorough investigations not only of the land but also of the seller before purchase. A purchaser who, without investigating whether his predecessor had any title or power of attorney to sell the land could not be held as a bona fide purchaser… Clearly, in the present case circumstances warranted investigating the predecessor’s title which on the evidence from the registry was defective. No letters of administration were produced.” 49.The records of the transactions revealed glaring, unexplained, but admitted inconsistencies regarding the Green Cards and the Titles, as well as the Land Control Board consents. The unprocedural removal of the restrictions placed by Herman on the suit properties was itself suspect. While it was alleged that the restrictions were removed on the directions of the DCIO, and we doubt whether the DCIO had the power to issue such directions, there was no evidence of the existence of such directions. As noted in Katende:“There were also other serious omissions and irregularities which reflected fraudulent transactions. A good example is the different figures shown as consideration or purchase price in different documents. Further, at first the appellant denied having signed the sale agreement but later admitted having done so. Again, on instructions of UCB he paid the money to different persons but could not explain further, which was strange. The only inference to be drawn from it, is that the purchase price if paid at all was shared by those who participated in the fraudulent transactions…Clearly, in the instant case there was also evidence to show that the perpetrators got assistance from some officials from the Land Registry, UCB and DAPCB to interfere with the records with the intention of depriving the respondent of its title to the suit property. The plea of bona fide purchaser for value could not be available to him because of the imputed fraud of his agents.” 50.From the manner in which the transactions were conducted, we agree with the learned Judge’s conclusion that:“it is the 2nd and 3rd Defendants who were the mastermind of the alleged transfers of the suit lands to the respective parties”. 51.Our view in reinforced by the decision of the Supreme Court of Uganda in Lwanga vs Mubiru and Others (Civil Appeal 18 of 2022) [2024] UGSC 7, where it was held that:“The principle of bonafide purchaser for value without notice is a general defence in any transaction of sale or purchase of any property particularly land.The definition of bonafide purchaser for value without notice is “that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest”.Bona fide is a Latin word meaning good faith, without fraud, sincere, genuine. See (Black’s Law Dictionary 9th Edn Page 199)A bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller’s title. See (page 1355 Black’s Law Dictionary 9th Edn.It is trite law that a person who relies on the defence of bona fide purchaser for value without notice has the burden to prove he or she acted in good faith.The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice cover both actual and constructive notice of fraud.In the case of Jones v. Smith [1841] I Hare 43, the Chancery Court held: “a purchaser has constructive notice of fraud if he had actual notice, that there was some incumberance and a proper inquiry would have revealed what it was (but if) it abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made... then the defence cannot be available to him or her.” See Yakobo M. N Senkungu & Others v. Cresencio Mukasa Civil Appeal No 17 of 2014.” 52.Regarding the position of the 4th and 5th respondents, the record indicates that their advocates did not carry out proper due diligence as regards the root of the titles. The 5th respondent, who testified on behalf of the 4th respondent, did not even bother to confirm the existence of the titles. As stated in Katende:“On the evidence and the conduct of the appellant he could not have been a bona fide purchaser for value. Whether an imperfect title would pass a good title would depend on the imperfection, whether fatal or found to go to the root of the transaction or minor. There is, therefore, a duty on the buyer personally or through his agents to inquire into the title of his predecessor.” 53.This position has been adopted by this Court and the Supreme Court in a number of decisions. This Court in Munyu Maina v Hiram Gathina Maina [2013] eKLR held 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 this instrument that is under challenge and the registered proprietor must go beyond the instrument and prove 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. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.” 54.In the case of Dina Management Limited vs County Government of Mombasa & 5 others (supra) the Supreme Court stated that for a court to establish whether a party is a bona fide purchaser for value, the court must first establish the root of the title right from the first allotment. The Court upheld the dicta in the case of Samuel Kamere v Land Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR and stated that:“…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...” 55.In this case, it is clear that no proper due diligence was caried out by the appellants and the 4th and 5th respondents. They cannot justify their inaction on the fact that the transaction was carried out by an advocate who they did not call to explain to the trial court what action he undertook in terms of investigating the titles in order to satisfy the court that due diligence was carried out. We find no merit in this ground of appeal. 56.It was the appellants’ submission that the learned Judge went against the legal principle that parties are bound by their pleadings by decreeing judgment against the appellants and the 4th and 5th respondents, yet the amended plaint only sought for remedies and/or judgment only against the 1st and 2nd defendants (the 2nd respondent and the 1st appellant). Contending that parties are bound by their pleadings, it was asserted that the trial court had no power to enter judgment against the other defendants without the plaint being amended. 57.The 1st respondent’s position on this issue was that a holistic reading of the pleading reveals that the plaint meticulously detailed the roles of all defendants, including the appellants, in the fraudulent scheme, together with particulars of fraud, error, and negligence, which were expressly pleaded against "the Defendants," including the appellants. The prayer for a permanent injunction was explicitly sought against all the defendants, while there was an explicit prayer for declarations that the titles of the 3rd defendant and subsequent defendants were obtained fraudulently, and for rectification of the register, and therefore the pleadings inherently and necessarily sought relief against all subsequent transferees, including the appellants and the 4th and 5th respondents. The introductory part of the prayers was, therefore, an inadvertent error on the part of the draftsperson, hence it cannot be concluded that no prayer was sought against the appellants as the substantive prayers demonstrate otherwise. 58.We agree that a holistic reading of the amended plaint reveals that challenges were made to the manner in which the suit properties were transferred from Herman to Naomi and subsequently to the appellants and the 4th and 5th respondents. Whereas the opening sentence seeking reliefs only mentioned the 1st and 2nd defendants, it is clear from the reliefs themselves that they were against all the defendants. The appellants adequately controverted the averments in the said amended plaint and at no time did the issue of the prayers feature during the hearing. This Court in Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority [2009] KLR 720, in dealing with a case where the body of the plaint pleaded what was in effect a claim for general damages but did not pray for it, held that:“General damages was pleaded at paragraph 8 of the amended plaint and specifically denied at paragraph 8A of the amended defence as we have indicated above. It was unfortunately not made one of the prayers, but clearly the appellant in raising evidence on its losses which were special damages was sending in effect one main message which was not disputed at any stage, that his vehicle was in active business. Indeed, at the time it was seized, it was carrying goods for transport to Tanzania...DW2 in his evidence in cross examination stated: - “I agree that the owner must have suffered loss.” It is not in doubt, in our view that the issue of general damages which was pleaded and denied, although not prayed for was a matter before the court and the court had to deal with it. Both agreements produced, together with evidence that the vehicle was in business even at the time it was seized, were all matters that demonstrated what DW2 appreciated in his evidence that the owner did suffer loss for fifteen months its vehicle was detained. One cannot deny that aspect. Unfortunately, the learned Judge of the Superior Court, in saying that no claim for damages was made did not at any stage direct his mind to the fact that this claim was pleaded though not prayed for. In our view, had he considered that it was pleaded and that there was evidence that the appellant had been deprived of its vehicle which was in active use for fifteen months, he would have considered the issue of general damages for it was a matter before him.” 59.In this case both the body and the reliefs set out what the 1st respondent was seeking. It was only the opening statement of the reliefs that inadvertently seemed to have been restricted to the 1st and 2nd defendants. In our view, nothing turns on this point and we find this ground is wholly unmerited. 60.On the allegation that the learned judge ignored and failed to take into account the appellants' submissions and authorities placed before her for determination, as held by this Court in Moi v Muriithi & Another [2014] KECA 642 (KLR), submissions of counsel do not constitute evidence and even if it was true that the learned Judge did not consider the appellants’ submissions, which is not correct, that would not be a ground for upsetting the decision. 61.Having considered the grounds raised in this appeal as well as the submissions of counsel, we find no merit in this appeal which we dismiss in its entirety. We award the costs to the 1st respondent. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.D. K. MUSINGA (PRESIDENT)………………………..……………JUDGE OF APPEAL MUMBI NGUGI………….……………JUDGE OF APPEALG.V. ODUNGA…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.