Jedidah Ngina Kibuna v County Government of Nairobi & 4 others

2. The Plainti prays for judgement against the Defendants for; a. A declaration that the 1st Defendant having allotted the suit property, that is to say, Plot No. 230 in Jamhuri Phase II (now known as Nairobi/Block 63/493), and the Plainti having accepted the allotment and an agreement for Lease executed, the said plot was not available for re-allotment to the 2nd Defendant, and the same remains the property of the Plainti, the re-allotment to the 2nd Defendant being void ab initio and of no eect. b. Spent. c. An order requiring the 1st Defendant to execute the Lease over the suit property in favour of the Plainti. d. An order requiring the 3rd Defendant to rectify the register by cancelling the registration of the suit property in favour of the 2nd Defendant and registering the Lease (c) above in favour of the plainti. e. General damages in terms of anticipated rent and mesne prots from the year 1992 to date and/or for the value of the suit property. f. Costs of the suit. Responses 3. In opposition, the 1st Defendant led a statement of defence dated 25th January 2002, amended on 18th March 2002 and further amended on 28th July 2021, denying allegations leveled against it, in the reamended Plaint and admitting to allocating the suit property to the Plainti. 4. The 2nd Defendant led a statement of defence in opposition. He denied allegations levelled against him in the plaint and averred that in February 1992, he was allotted Plot No. 230 (now Nairobi/ Block63/493 Jamhuri by the 1st Defendant’s predecessor, Nairobi City Commission and that he immediately took possession and was subsequently issued with a Lease. Further, that on 7th July 2001, he sold the said property to the 4th Defendant. 5. On his part, the 4th Defendant contended that he purchased the suit property from the 2nd Defendant and that he undertook due diligence. 6. The 5th Defendant also led a statement of defence in opposition. She denied allegations levelled against her by the Plainti and contended that on 20th June 2009, she purchased the suit property from the 4th Defendant after conducting due diligence and ascertaining his ownership and that she took possession upon purchase. 7. The matter proceeded for hearing where parties called their respective witnesses. The Plainti ’s Evidence 8. The Plainti as PW1, stated that vide a Letter of Allotment dated 27th October 1992, the 1st Defendant oered her Plot No. 230 Jamhuri Phase II. Further, that she then complied with its conditions of acceptance which included making a written acceptance of the oer and paying stand premium and land rent of kshs.10,800/=. It was her testimony that subsequently, the 1st Defendant prepared a Lease Agreement dated 25th January 1999, which both parties executed. She claimed that the suit parcel became Nairobi /Block 63/493 after survey. It was her testimony that the 1st Defendant then instructed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 2

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its advocates to prepare a Lease in her favour and it was sent to the 1st Defendant for execution and return thereafter for registration. Meanwhile, she continued to pay land rent. 9. She testied that about September/October 2001, the 1st Defendant prepared a Lease over the suit property, fraudulently and in collusion with the 2nd Defendant and which was registered by the 3rd Defendant. Subsequently, the 2nd Defendant transferred the suit property to the 4th Defendant who later transferred the same to the 5th Defendant. 10. She contended that the 1st and 2nd Defendants colluded to defraud her, given that they procured another Lease yet they knew that the suit property was not available for disposal to a third party. Further, that their transaction was carried out by the 1st Defendant’s inhouse lawyer who knew the status of the suit property. She insisted that the 3rd Defendant failed to investigate the fraudulent transaction and /or rescind it even after she raised alarm about the fraud. Further, that it also refused to register a caution despite numerous pleas, and as a result the property was hurriedly transferred to defeat the course of justice. 11. She produced fourteen (14) documents in her list and bundle of documents dated 24th February 2020 as P. Exhibit 1-14 while her 15th Document, which is a valuation report from Royal Valuers Limited was marked for identication. She also produced her list and bundle of documents dated 16th February 2020 as P. Exhibit 16-18. These are: copy of a letter from Nairobi City Council Director of City Planning & Architecture showing the list of Jamhuri Phase II Scheme allotees, Green Card for Nairobi/Block 63 Parcel No.748 opened on 9th October 2001 and a Green Card for Nairobi/Block 63 parcel No.493 opened on 26th October 2001. 12. Upon cross-examination by Counsel for the 1st Defendant, PW1 stated that she had erected a structure for a caretaker on the suit property and that no ocial from the County has ever interfered with her. 13. Upon cross-examination by Counsel for the 2nd Defendant, she conrmed that in her letter of allotment, dated 27th October 1992, she was required to make payments within thirty (30) days of the letter but she did so outside the stipulated period, though the 1st Defendant accepted her payments. She also conrmed that she is not in possession of the suit property and that the last time she paid rates was on 30th August 2007, as demand for rates were sent to her lawyer. She also stated that the 2nd Defendant entered into a consent dated 28th July 2006 with her, admitting that the suit property belongs to her and that he has no claim over it. 14. When cross-examined by counsel for the 3rd Defendant, she stated that she did not keep a copy of the application she did to formerly request for allocation of the suit plot and her letter accepting the oer. She also stated that she felt aggrieved by the 3rd Defendant for issuing title while she had an allotment issued by the 1st Defendant. 15. In cross-examination by counsel for the 4th and 5th Defendants, she claimed that her allotment letter was sent by post, and she received it way after thirty (30) days within which to pay rent and stand premium had lapsed. She also stated that she is aware that the suit property was rst allocated to John Mbugua, but since he failed to comply, it was allocated to her and she fully complied. She conrmed that the Green Card does not show any encumbrance but insisted that she was not certain that a person who did a search could get a clean title. 16. Upon re-examination, PW1 reiterated her evidence and stated that while her allotment letter is dated 27th October 1992, she got it around January 1993 and paid in February 1993. She was emphatic that her payment was not rejected. She also stated that it is the 1st Defendant who initiated the consent dated 28th July, 2006 and that he did not mention the 4th and 5th Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 3

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17. PW2 was Magdalene Wambui Mbugua, a valuer. She produced a valuation report for the suit property, dated 25th September 2019 as P. Exhibit 15. 18. Upon cross -examination by counsel for the 1st Defendant, PW2 conrmed that she did visit the suit plot and noted an abandoned double storey building which was being put up. 19. When cross-examined by counsel for the 2nd Defendant, she stated that she valued the suit property at Kshs. 12 million by assessing market value of other vacant plots in that area. Further, that she veried that the Plainti has ownership documents from the planning department though there is no requirement for an instructing client to be the owner of property to be valued. 20. In cross-examination by counsel for the 4th and 5th Defendants, she stated that for evidence of ownership, she was given the allotment letter which describes the suit property as Plot No.230. Further, that she did not ask for the beacon certicate. She conrmed that she got Jamhuri Estate’s map from City Hall. Further, that it is the Plainti who pointed out the suit plot to her but she did not get inside since the entrance was covered with iron sheets thus she relied on the size of the property as per the allotment letter. 21. In re-examination, PW2 insisted that she conducted a search of the suit property at Department of Planning, City Hall. The 1st Defendant’ s Evidence 22. DW1 was Benson Ndegwa Gichuhi, the 1st Defendant’s Senior Administrative Ocer in charge of its allocated properties. He testied that the suit property, initially known as Plot No. 230 and which forms part of the 1st Defendant’s Jamhuri Phase II Estate Scheme was allocated to the Plainti vide a letter of allotment dated 27th October 1992, and that the position is conrmed vide its predecessor’s relevant committees’ resolutions sanctioning the allotment. Further, that the Plainti complied with conditions of allotment and that the 1st Defendant has never issued any other allotment over the suit property thus any other documents are fraudulent. 23. Upon cross-examination by counsel for the Plainti, DW1 stated that as per Exhibit 16, the Plainti’s name is listed against the suit property as owner. He also conrmed that the property is also known as Block 63/493 after survey. 24. In cross-examination by counsel for the 2nd Defendant, he stated that the original allotee of the suit property was John Mbugua who transferred ownership to the Plainti. Further, that since he is in charge of allocation records only, he is not aware whether Jamhuri plots have titles. He could not conrm whether the Plainti paid the requisite fees within thirty (30) days of the allotment letter, contending that ascertaining payments and receipts was handled by another department. He pointed out that the letter of allotment allegedly issued to the 2nd Defendant did not emanate from the 1st Defendant. 25. During cross-examination by counsel for the 3rd Defendant, he conrmed that documents relied on for issuance of Lease emanated from the 1st Defendant’s oce, and that they are prepared by its director, conveyance while the PDP is sent to survey for numbering. 26. In cross-examination by counsel for the 4th and 5th Defendants, he stated that he was not aware of the rst defence led by the 1st Defendant’s lawyers and the substitution of the original witness, Mr. Erick Abwayo, including the withdrawal of his statement which took a contrary view to his. He insisted that the Plainti complied with the conditions of her letter of allotment. He also insisted that not all persons in Jamhuri have titles though he did not make eort to conrm whether a title over the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 4

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property was issued, insisting that the process of preparing leases was handled by a private advocate, one Musyoka Annan. 27. In re-examination, DW1 reiterated that the Plainti complied with all conditions even though she paid outside the timelines, attributing the delay to late receipt of letter of allotment and insisting that the 1st Defendant never complained of her late payment. He also distanced the 1st Defendant from the allegation of forwarding documents that led to the 2nd Defendant’s registration. The 2nd Defendant’s Evidence 28. The 2nd Defendant as DW1 testied that the 1st Defendant allocated him Plot No. 230 Jamhuri vide a letter of allotment dated 20th February, 1992 which he produced as D. Exhibit 1. Further, that he accepted the oer in writing, complied with conditions of oer and immediately took possession and fenced the suit plot with a chain link. 29. He claimed that in 2001, he visited the legal oces of the 1st Defendant at City Hall Annex where he was advised to submit all his documents in order for the oce to prepare a lease document. He claimed that he submitted his original allotment letter, receipts of payment of stand premium and rent over the years, beacon certicate and lease agreement. Further, that later in the year, he collected his lease at the same oces and although he requested for his original documents to be returned, he was told that he did not require them. He subsequently sold the suit property to the 4th Defendant vide a sale agreement dated 7th July 2001 and handed over his allotment and copy of Lease. 30. He pointed out that in its defence dated 25th January 2022, the 1st Defendant conrmed that the suit property was allocated to him only to change its position in subsequent amendments which he terms as malice and bad faith on its part. 31. He produced his list and bundle of documents dated 8th December 2022 as D. Exhibit 1 and also sought to rely on the documents of the 4th Defendant. 32. Upon cross-examination by counsel for the Plainti, DW2 acknowledged that he served as Councilor from 2007-2017 then as MCA from 2017-2022 in the area where the suit property is situated. He admitted that he neither had his original letter of allotment nor a letter accepting the oer and as per the list of allotees for Jamhuri (D. Exhibit16), the name appearing alongside the suit property as owner is the Plaintis. 33. With regard to the consent dated 28th July 2006, he stated that it was led by his previous advocates, Chege Wainaina & Co. Advocates and that the signature appearing on it is not his, though he did not follow up the issue of forging his signature and does not recall if he sought to set the said consent aside. 34. He also conrmed that he did not have a copy of the lease agreement with the 1st Defendant in court. While he stated that he was issued with a Lease on 7th July 2001, before he sold the suit property to the 4th Defendant, it was pointed out to him that the Green Card shows he was issued with a Lease on 26th October 2001. He pointed out that all that one needed to eect a transfer was an allotment letter, beacon certicate and payment of land rates and rent which he contended he paid but he did not have receipts to that eect. 35. DW1’ s evidence in cross-examination by counsel for the 1st Defendant mirrored the cross-examination by Plainti’s counsel. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 5

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Evidence of the 4th and 5thDefendants 36. The 4th Defendant testied as DW1. He stated that he purchased the suit property from the 2nd Defendant vide a sale agreement dated 7th July 2001, after conducting due diligence at the 1st Defendant’s oces and at lands oces, where he established that the 2nd Defendant was paying rates and that the suit property was registered to him. He claimed that the 1st Defendant issued a consent to transfer the suit property from the 2nd Defendant to him, but he did not keep copies. Further, that he paid stamp duty but had no evidence to that eect and had no transfer documents either. He also conrmed that he did not le any document of title in court and that he had transferred his rights to the 5th Defendant on 19th November 2021. He produced his list and bundle of documents dated 6th February 2017 as D. Exhibits 1-3. 37. In cross-examination by counsel for the 1st Defendant, DW1 insisted that he paid the 2nd Defendant in cash but he had no evidence of paying any rates to the 1st Defendant. Further, that he did not know that the 2nd Defendant had no title by the time of executing the sale agreement dated 7th July 2021. 38. During re-examination, he reiterated his evidence in chief and in cross-examination. 39. Parties thereafter led written submissions. Submissions 40. The Plainti submitted that she is the rightful allottee of the suit property, having demonstrated that she received a Letter of allotment dated 27th October 1992 from the 1st Defendant, accepted the oer and paid the requisite fees. Further, that as per the register of allottees of all plots in Jamhuri Phase II, her name appears against the suit property and she has been paying land rent and rates, adding that the executed lease agreement between the 1st Defendant and herself is proof that the 1st Defendant intended to register the property in her name, a position it conrmed through DW1’s testimony. She also pointed out that the 2nd Defendant through the consent recorded in court on 28th July 2006, which has never been set aside, admitted to her right of ownership over the suit property. 41. Additionally, she submitted that the 2nd Defendant’s claim that the basis of his title arose from the allotment of the suit property by the 1st Defendant was rejected by the 1st Defendant. Further, that save for an illegible and uncertied copy of a Letter of Allotment, whose original was not produced, the 2nd Defendant had no documents to trace the root of his alleged title and even if the court were to accept his letter of allotment, there is no evidence of compliance with the conditions stipulated therein. 42. She pointed out that the purported Lease Agreement allegedly entered between the 1st and the 2nd Defendants was not produced before this Court and that the 2nd Defendant’s name does not appear in the 1st Defendant’s register of allottees in respect the suit property thus he fraudulently acquired the title and as a consequence, the titles passed to the 4th and 5th Defendants are defective therefore they are not bonade purchasers for value without notice. Further, that the 3rd Defendant, being the custodian and issuer of title is equally a party to the fraud. 43. She pointed out that at the time of entering into an agreement for sale of the suit property with the 4th Defendant, the 2nd Defendant had no valid title thus the 4th Defendant’s claims that he conducted due diligence before purchasing the property and established that the 2nd Defendant was the registered proprietor is false and it implies that he had knowledge of the fraud and therefore complicit in it, adding that, neither the 4th Defendant nor the 5th Defendant produced any proof of payment of the purchase https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 6

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price. Further, that as per the Green Card, the suit property was hurriedly transferred between them within a record of 23 days. 44. The Plainti also urged the court to award her mesne prots of kshs.12,000,000/= as compensation for the loss suered on account of being deprived from the use of her property. 45. To buttress her averments, the Plainti relied on the following decisions: Dina Management Ltd V County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021 (2023) KESC 30 (KLR); Arthi Highway Developers Ltd v West End Butchery Ltd & Others, Civil Appeal No. 246 of 2013 [2015] KECA 816 (KLR) (30 January 2015) Judgment; Munyu Maina V Hiram Gathiha Maina (2013) eKLR and Dina Management Ltd v County Government of Mombasa & 5 Others, Civil Appeal No. 50 of 2019 (2021) KECA 503. 46. The 1st Defendant submitted that the Plainti’s allegations of fraud on its part that he conspired with the 2nd Defendant to deprive her of the suit property was unsubstantiated yet it is trite that allegations of fraud must be pleaded and proved with specic particulars. Further, that there is no proof that it participated in the process that led to the 2nd Defendant’s alleged Lease. It was submitted that the 2nd Defendant failed to prove any valid proprietary interest over the suit property as he had no evidence of alleged allocation and neither produced the alleged lease agreement between the 1st Defendant and himself nor proved that he surrendered all his original documents for execution and preparation of lease. 47. It insisted that it allocated the suit property to the Plainti thus the name of the 2nd Defendant does not appear in its register of allotees of plots in Jamhuri II Estate. It further submitted that the suit property was not available for allocation to any other person. Further, that a letter of allotment is foundational in allocation of public land, without it the 2nd Defendant’s proprietary claim cannot stand and that the 4th and 5th Defendants cannot be innocent purchasers for value where the root of title is defective. 48. To buttress its averments, the 1st Defendant relied on the following decisions: Vijay Morjaria v Nasingh Madhusingh Darbar & another [2000] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR. 49. On their part, the 4th and 5th Defendants submitted that the 4th Defendant was a bona de purchaser for value without notice of the suit property, since there was no fraud or collision with the vendor and he had no notice of any claim on the suit property. They further submitted that the Plainti could not challenge the registration of the suit property in their favour, pursuant to Section 143(1) of the repealed Registered Land Act, arguing that the 2nd Defendant was the rst registered proprietor and that such rst registration was protected from rectication even where fraud was alleged. 50. To buttress their averments, the 4th and 5th Defendants relied on the following authorities: Weston Gitonga & 10 Others v Peter Rugu Gikanga & Another (2017) eKLR; Katende v Haridar & Company Limited (2008) 2 E.A. 173, Khadija Mohammed v Amina Abdi Duba & Another, Civil Appeal No. 83 of 2019 [2022] KECA 442 (KLR) (18 March 2022) (Judgment), and Hannah Wangui Ithebu & Another v Joel Ngugi Magu & 2 Others, Civil Appeal No. 86 of 1999 (2005) eKLR. Analysis and Determination 51. Upon consideration of the pleadings, testimonies of the respective witnesses, exhibits including rivalling submissions, the following are the issues for determination: a. Who is the lawful owner of Plot No. 230 (now known as Nairobi/Block 63/493) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 7

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b. Whether the 4th and 5th Defendants are bona de purchasers for value without notice and if not, should the 5th Defendant’s Certicate of Lease be revoked. c. Whether the Plainti is entitled to mesne prots. 52. The Plainti contends that the 1st Defendant issued her with a letter of allotment dated 27th October 1992 for Plot No. 230, Jamhuri Phase II. She testied that she accepted the allotment and paid the requisite Stand Premium and land rent of Kshs.10,800/- and that a Lease Agreement between the 1st Defendant and herself was awaiting execution as well as registration when she learnt that in late October 2001, the 1st Defendant in collusion with the 2nd Defendant prepared a Lease over the suit property in favour of the latter, who sold the suit property to the 4th Defendant who in turn sold it, to the 5th Defendant 53. The 1st Defendant, through DW1, conrmed that the 1st Defendant allotted the suit property to the Plainti, whose name appears against the suit property in its register of allottees of Jamhuri Phase II and that the said property became Nairobi/Block 63/493, after survey. He conrmed that the 1st Defendant had never issued another allotment letter over the same property and denied being in collusion with the 2nd to 5th Defendants to defraud the Plainti. He also pointed out that the 1st Defendant accepted payments made by the Plainti out of time and attributed the delay to the Plainti receiving the allotment letter late. He was emphatic that the Plainti complied with the conditions of her letter of allotment, even when he was pointed to the condition to pay ground rent and rates within 30 days and her receipt indicating payment was done on 3rd February 1993. 54. On his part, the 2nd Defendant earlier on in the proceedings recorded a consent dated 28th July 2006 in which he admitted that he does not own the suit property. However, during hearing, he appeared to denounce the said consent but he acknowledged that it is in this court’s record, as it was never set aside. He contends that he was allocated Plot No. 230 by the 1st Defendant’s predecessor in February 1992 and that he accepted it in writing, complied with its conditions, took possession and was subsequently issued with a Lease and then he sold the suit property to the 4th Defendant. The only document he produced was a copy of the alleged allotment letter as he alleged to have presented all his original documents with the 1st Defendant at the time of registration of Lease. He conrmed that there was no transfer document between 1st Defendant and himself. 55. On their part, the 4th and 5th Defendants contend that they are bona de purchasers for value without notice, alleging that they conducted due diligence before purchasing the suit property and that they had no knowledge of any fraud. In their submissions, they rely on the protection of rst registration under Section 143(1) of the repealed Registered Land Act. 56. On who is the owner of the suit property, I note the Certicate of Lease for Nairobi/Block 63/493 that was produced in evidence is registered to the 5th Defendant. The Plainti has sought for its cancellation on the basis that it was fraudulently obtained. To succeed in impeaching the said title, the Plainti had the burden of demonstrating that the same was fraudulently obtained. This is the position of the law as stipulated in Section 26 (1) (b) of the Land Registration Act: “ The certicate 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 – https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 8

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57. a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or b. Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. The court will therefore determine whether the grounds for impeachment of title were met by the Plainti. Equally, the party with the registered title (5th Defendant) also has the burden to demonstrate its root. It is trite that a certicate of title cannot appear from thin air, but a registered owner has the duty to demonstrate its root. To this end, the Court of Appeal held as follows in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR; “ We state that when a registered proprietor root of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership. It is this 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 would not be noted in the register.” 58. Further, in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court stated thus: “ …where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.” 59. See also the case of Wambui vs Mwangi & 3 others (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR). 60. From the facts before Court, I note the Plainti furnished court with documents which included her letter of allotment, receipts for payment of rates and rent, Legal fees paid for preparation of Lease Agreement between the 1st Defendant and herself, register of allottees for Jamhuri Phase II, Agreement for Lease between the 1st Defendant and herself, and respective receipts, which demonstrate how she acquired the suit property. The 2nd Defendant who got a Certicate of Lease in his name only presented a copy of a letter of allotment which was disputed by the 1st Defendant. In that regard, I nd that since the 1st Defendant that was the allotting authority conrmed that the Plainti was indeed allotted the suit property, noting that the Plainti as PW1 demonstrated that she was allotted the said suit property and paid for it, in my view she is indeed the owner of the suit property. I opine that the evidence presented by the 2nd Defendant was not credible as he did not even produce proper documents to demonstrate allotment to him. It is worthnoting that there exists the consent dated the 28th July, 2006, which has not been set aside, where the Plainti and 2nd Defendant had recorded in court whose excerpt, I reproduce here below: “ Judgement be entered for the 1st Plainti against the 2nd Defendant in terms of the Plaint dated 11th December, 2001 and led on the same date and particularly prayer (a) and (b) of the Plaint and further that the 2nd Defendant has no claim over the land known as LR No. NAIROBI BLOCK 63/493.’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 9

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61. In the foregoing while relying on the legal provisions cited and associating myself with the decisions quoted, I will proceed to uphold the Plainti’s Letter of Allotment as valid. Further, since I have already found that it is the Plainti that owned the suit property that is now registered in the name of the 5th Defendant, I opine that it was incumbent upon the 5th Defendant to demonstrate the root of her title so as to be deemed as a bona de purchaser for value without notice. 62. As to whether the 4th and 5th Defendants are bona de purchasers for value without notice and if not, should the 5th Defendant’s certicate of Lease be revoked. The Plainti claimed that the Defendants colluded in unlawfully defrauding her of the suit property. Before making a determination on whether the 4th and 5th Defendants are bonade purchasers for value or not, this court will determine whether the particulars of fraud against each Defendant were proved as it is an established principle that fraud must be specically pleaded and proved. 63. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows: “ In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a nding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land……Fraud is a quasi-criminal charge which must, as already stated, not only be specically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities……” 64. The Plainti and the 1st Defendant are unanimous in arguing that one cannot be an innocent purchaser of fraudulently acquired land. In Dina Management Limited v County Government of Mombasa & 5 others (2023) eKLR, the Supreme Court held that: “ (111) 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 benet from the doctrine of bona de purchaser.” 65. From the facts before me while relying on the legal provisions cited and associating myself with the decisions quoted, I nd that since the 2nd Defendant did not own the suit property which he sold to the 4th Defendant that in turn sold to 5th Defendant, the 5th Defendant cannot be deemed to be a bona de purchaser for value as the root of her title is fettered. Further, even if the 2nd Defendant processed the Lease and speedily in a record of 23 days disposed of the suit property, he did not acquire a good title to pass to other resultant purchasers. It is worthnoting that the 1st Defendant’s witness was emphatic that the letter of allotment allegedly issued to the 2nd Defendant did not emanate from the 1st Defendant. I further note that the 2nd Defendant entered into the sale agreement with the 4th Defendant, when his title had infact not been processed. The 4th Defendant claimed that he conducted a search before purchasing the suit property, yet the title had not been processed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 10

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66. Further, the 2nd Defendant did not produce any documents to support his acquisition of the suit property. To my mind, it seems that the 2nd Defendant took advantage of his position as the area Councillor where the suit property was situated to fraudulently acquire the suit property. Even from the records held with the 1st Defendant, it all pointed to the fact that it is the Plainti that owned the suit property while the 2nd Defendant’s name was nowhere. 67. In my view, since the Court has already determined that the Plainti is the owner of the suit property, the question we hence need to ponder is whether the 5th Defendant’s title can still be deemed valid. The law on rectication of title is Section 80 of the Land Registration Act which provides that; “ (1) Subject to subsection (2), the court may order the rectication of the register by directing that any registration be cancelled or amended if it is satised that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectied to aect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectication is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.” 68. In the foregoing, I will proceed to rely on this legal provision and proceed to direct the 3rd Defendant to revoke the Certicate of Lease held by the 5th Defendant as it was obtained through fraud. 69. As to whether the Plainti is entitled to mesne prots. The Plainti has sought for mesne prots amounting to kshs.12 million. Section 2 of the Civil Procedure Act Cap 21 denes mesne prots as follows: “ mesne prots”, in relation to property, means those prots which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such prots, but does not include prots due to improvements made by the person in wrongful possession;” 70. Further, the court stated as follows in Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah [2016] eKLR: “ As a rule, therefore, liability to pay mesne prots goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne prots…” 71. From the evidence tendered in court, I note there was no indication that the suit property is developed or if the 5th Defendant is beneting from it. Even if the Plainti presented a valuation report and sought for mesne prots amounting to Kshs. 12 million, which I nd exorbitant since the suit property is not yet developed, I opine that an award of Kshs. 2,000,000 to be borne by the 2nd 4th and 5th Defendants jointly and severally, would suce. 72. In the circumstances, I nd that the Plainti has proved her case on a balance of probability as against the Defendants and will proceed to enter Judgement in her favour and make the following nal Orders: a. A declaration be and is hereby issued that the 1stDefendant having allotted the suit property, Plot No. 230 in Jamhuri Phase II (now known as Nairobi/Block 63/493), and the Plainti having accepted the allotment and an agreement for Lease executed, the said plot was not available for re-allotment to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 11

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2ndDefendant, and the same remains the property of the Plainti, the reallotment to the 2nd Defendant being void ab initio and of no eect. b. An order be and is hereby issued directed at the 1st Defendant to execute the Lease over the suit property in favour of the Plainti. c. An order be and is hereby issued directed at the 3rd Defendant to rectify the register by cancelling the registration of the suit property in favour of the 2nd and 5th Defendant and registering the Lease (c) above in favour of the Plainti. d. Mesne prots awarded at Kshs. 2,000,000 to be borne by the 2nd 4th and 5th Defendants jointly and severally. e. Costs of the suit to be borne by the 1st, 2nd 4th and 5th Defendants equally. DATED SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Kwanga for Plaintis Ms Kemunto for 1st Defendant Njeru for 4th and 5th Defendants Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5833/eng@2026-09-28 12

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