Bwanaadi & another (As administrators of the Estate of Khator Bin Saum - Deceased) v Khator & 9 others; Mohidin (Legal representative of the Estate of Amina Ahmed Salim - Deceased) (Applicant) [2024] KEELC 6248 (KLR)

Bwanaadi & another (As administrators of the Estate of Khator Bin Saum - Deceased) v Khator & 9 others; Mohidin (Legal representative of the Estate of Amina Ahmed Salim - Deceased) (Applicant) (Environment & Land Case 414 of 1996) [2024] KEELC 6248 (KLR) (25 September 2024) (Judgment)

Neutral citation: [2024] KEELC 6248 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 414 of 1996

NA Matheka, J

September 25, 2024

Between

Mohamed Bwana Bwanaadi

1st Plaintiff

Abdulrazak Khalifa

2nd Plaintiff

As administrators of the Estate of Khator Bin Saum - Deceased

and

Rishad Abdulrehman Khator

1st Defendant

Laxmichand Virchand Karamshi Shah

2nd Defendant

Ali Mohamed (Deceased)

3rd Defendant

Zena Ahmed (Deceased)

4th Defendant

Amina Ahmed (Deceased)

5th Defendant

Abdulquadir SA Shuruty

6th Defendant

The Public Trustee

7th Defendant

Burbank Enterprises Limited

8th Defendant

The Registrar Of Titles

9th Defendant

The Commissioner Of Lands

10th Defendant

and

Abdul Hamid Mohidin (Legal representative of the Estate of Amina Ahmed Salim - Deceased)

Applicant

Judgment

1. Salim Bin Hiro married Memwenyi Binti Ahmed and together they had 2 sons and 4 daughters. Khator Bin Salim, Ahmed Salim, Amina Binti Salim, Mwana Anna Binti Salim, Halima Binti Salim and Mwana Mdigo married to Saleh Bin Abdulla Shuraty. The siblings inherited Plots No. 193/III/MN, 194/III/MN and 196/III/MN from their father Salim Bin Hiro and were registered as tenants in common as seen from the certificate of ownership for Plots No. 193/III/MN, 194/III/MN and 196/III/MN all dated 12th September 1923.

2. It is the plaintiff’s case that Khator Bin Salim died on 9th January 1943, and on 28th April 1976 letters of administration de bonis non were granted to Abdulrahman Bin Khator. Mohamed Khator Bin Salim (as the initial administrator of the estate of Khator Bin Salim) instituted Mombasa HCCC No. 254 of 1961 against Ahmed Salim and the Public Trustee (who at the time was the administrator de bonis non for the estate of Amina Binti Salim, Mwana Anna Binti Salim, Saleh Bin Abdulla). He sought a declaration that Khator Bin Salim had acquired the necessary possessory to Plots No. 193/III/MN, 194/III/MN and 196/III/MN. He argued that during the lifetime of Khator Bin Salim, he had purchased the interest of his siblings in Plots No. 193, 194 and 196 and remained in possession for at least 12 years before his death on 6th June 1943. The plaintiff herein averred that the court in its judgement of 21st March 1962 held that Khator Bin Salim had acquired Plots No. 193/III/MN, 194/III/MN and 196/III/MN by way of adverse possession. The court also held that the rights, title and interest of Ahmed Salim, Amina Binti Salim, Mwana Anna Binti Salim, Halima Binti Salim and Mwana Mdigo married to Saleh Bin Abdulla Shuraty had been extinguished. However, this court has perused the said judgement, it is clear that the court therein held that though Khator Bin Salim had mentioned that his co-shareholders had sold their shares to him, there was no instrument or receipts to prove so. The plaintiffs have admitted this fact in their submission where they have submitted that the court upheld the interest of Ahmed Bin Salim, who later sold and conveyed his 28/128 shares in the suit properties to one Laxmichard Virchand Karamshi Shah. 3. It is the 2nd defendant’s case that Laxmichard Virchand Karamshi Shah acquired by way of purchase 28/128 undivided shares from Ahmed Bin Salim in Plot No. 193/III/MN (registered on the certificate of title as entry number 11 on 23rd July 1962) and Plot No. 194/III/MN (registered on the certificate of title as entry number 11 on 30th July 1962). That the 2nd defendant was restrained from entering the suit properties by Abdulrehman Bin Khator (who was granted letters of administration de bonis non to the estate of Khator Bin Salim on 28th April 1976). In his quest to access the suit properties, Laxmichard Virchand Karamshi Shah instituted HCCC No. 459 of 1988 against Abdulrehman Bin Khator vide a plaint dated 20th June 1988. In its judgement dated 20th April 1993, the court ruled that in the judgement of HCCC No. 254 of 1961 the court had dismissed the prayer that was sought to declare that the title of Ahmed Salim in Plots 193 and 194 had been extinguished. The court found that Ahmed Salim retained his title to Plots 193 and 194 and had validly sold and transferred some of his shares to Laxmichard Virchand Karamshi Shah, who was a bonafide purchaser. The court held that Shah’s title in Plots 193 and 194 was valid and further ordered the consolidation of Plots 193 and 194 and their subdivision based on undivided shares held by Shah. Being dissatisfied with the said judgement (HCCC No. 459 of 1988), Abdulrehman Bin Khator filed in the Court of Appeal Civil Application No. 313 of 1993, where he sought an extension of time to file a notice of appeal, to appeal against the said judgement. However, in its ruling dated 19th July 1996 the appellate court was not persuaded to extend leave and as such dismissed the application with costs on 19th July 1996. Therefore, Abdulrehman Bin Khator never got to file an appeal against the judgement in HCCC No. 459 of 1988, and no evidence has been led before this court to prove that any appeal was successfully lodged against the said judgement.

4. Following the judgement and decree in HCCC No. 459 of 1988, Laxmichard Virchand Karamshi Shah executed a deed of partition on 23rd October 1995 together with Ali Mohamed, Zena Ahmed and Amina Ahmed as well as Abdulquadir Saleh Abdalla Shuruty and Abdulrehamn Bin Khator. Subdivision No. 2712 Section III Mainland North (Original No. 193 and 194) was then subdivided into four plots i.e. Subdivision No. 2716/III/MN (Original No. 2712/5), Subdivision No. 2715/III/MN (Original No. 2712/4), Subdivision No. 2714/III/MN (Original No. 2712/3). The court has perused the said deed of partition dated 23rd October 1995 and takes note of the fact that the said deed was signed and executed by all the registered proprietors of Plots 193 and 194 and registered on 24th October 1995. To be precise, the deed of partition has been signed by Ali Mohamed, Zena Ahmed and Amina Ahmed as well as Abdulquadir Saleh Abdalla Shuruty and Abdulrehman Bin Khator. The deed is further signed by M.J Jagani Deputy Registrar and further sealed with the seal of the High Court of Kenya, Mombasa, pursuant to the decree in HCCC No. 459 of 1988.

5. It is the 8th defendant’s case that Burbank Enterprise Limited purchasedSubdivision No. 2715/III/MN (Original No. 2712/4) from the then-registered owners Ali Mohamed, Zena Ahmed and Amina Ahmed for Kshs 2,000,000/=. The Bahari Land Control Board on 25th January 1996 issued a letter of consent to Ali Mohamed, Zena Ahmed and Amina Ahmed approving the transfer of Subdivision No. 2715/III/MN (Original No. 2712/4) toBurbank Enterprise Limited. Following the consent, Ali Mohamed, Zena Ahmed and Amina Ahmed executed a transfer on 23rd February 1996 in favour of Burbank Enterprise Limited and had the transfer registered on 26th February 1996. Subsequently, Burbank Enterprise Limited was registered as the proprietor of Subdivision No. 2715/III/MN (Original No. 2712/4) on 26th February 1996.

6. It is the plaintiff’s case that the deed of partition that consolidated and partitioned Plots No. 193/III/MN and 194/III/MN into Subdivision No. 2716/III/MN (Original No. 2712/5), Subdivision No. 2715/III/MN (Original No. 2712/4), Subdivision No. 2714/III/MN (Original No. 2712/3) was fraudulent and the titles acquired were defective and incompetent. The plaintiffs pleaded that the consolidation and subdivision were fraudulent, illegal and in breach of trust as the land belonged to the estate of Khator Bin Salim. In particular, the plaintiffs argued that the registration of the 2nd, 3rd and 4th defendants as the registered owners of Subdivision No. 2715/III/MN (Original No. 2712/4) and the subsequent transfer to the 8th defendant was non-consequential. They further argued that the 2nd, 3rd and 4th defendants had no right or interest in the said plot that they would sell or convey. The plaintiffs have urged the court to find that Plots No. 193/III/MN and 194/III/MN are vested in the estate of Khator Bin Salim as held in HCCC No. 264 of 1961 and further declare the consolidation and subdivision of the said plots as illegal and order for the cancellation of the registration of Subdivision No. 2716/III/MN (Original No. 2712/5), Subdivision No. 2715/III/MN (Original No. 2712/4), Subdivision No. 2714/III/MN (Original No. 2712/3).

7. On 21st September 2021, this court ruled that the suit as against the 3rd, 4th and 5th defendants had abated. In his Ruling Sila J noted that;“By operation of law the case against the 5th defendant and if she was also representing the 3rd and 4th defendants, as submitted by Mr. Kimani has abated and so too that of the 3rd and 4th defendants. The abatement is by operation of law. The law requires for substitution within one year but it is now close to two years without any substitution being made.”

8. The court proceeded to allow the plaintiffs herein to apply for substitution within 45 days. One Abdul Hamid Mohidin (legal representative of the estate of Amina Ahmed Salim) filed an application dated 10th November 2021 seeking to be joined in place of the 5th defendant. The Court in its ruling dated 22nd March 2022 dismissed the application and ruled that the matter had already abated. This means that the suit against the 3rd, 4th and 5th defendants abated. The legal effect of abatement is that the suit as is against the 3rd, 4th and 5th defendants cannot be maintained. The Court of Appeal in Said Sweilem Gheithan Saanum vs Commissioner of Lands (being sued through Attorney General) & 5 others (2015) eKLR held that;“The legal representative of the deceased plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by “sufficient cause” from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the omission to take the necessary steps within one year to implead the legal representative of the deceased plaintiff.”

9. However, in the interest of justice an order of the court is necessary for a final and effectual disposal of the suit. The issues before court for consideration are:a.Whether the consolidation and subdivision of Plots No. 193/III/MN and 194/III/MN was fraudulent and illegal.b.Whether the registration of the 2nd, 3rd and 4th defendants as the registered owners of Subdivision No. 2716/III/MN (Original No. 2712/5), Subdivision No. 2715/III/MN (Original No. 2712/4), Subdivision No. 2714/III/MN (Original No. 2712/3) was legal.c.Whether the transfer and registration of the 8th defendant as the registered owner of Subdivision No. 2715/III/MN (Original No. 2712/4) was valid.On 20th April 1993, the court in Mombasa Civil Suit No. 459 of 1988 delivered a judgement and issued a decree with the following orders:d.That a declaration and order be made in favour of the plaintiff as prayed in (a) and (b) of the plaint.e.That Plot Number 193 and 194 Section III Mainland North Kilifi District be consolidated and subdivision on the basis of undivided 28/128 shareholding of the plaintiff.f.That the court order the defendant to perform all acts in terms of the declaration on and order granted in prayers (a) and (b) of the plaint.g.That the court order the defendant or direct the deputy registrar to sign all documents on behalf of the defendant for the purpose of consolidation and subdivision of the plots, the subject matter of this, the subdivisions being Nos. 18046, 18047, 18048, 18049, 18050, 180752. h.No order as to costs.

10. Following the judgement and decree Laxmichard Virchand Karamshi Shah executed a deed of partition which consolidated Plots No. 193/III/MN and 194/III/MN into 2712/III/MN. The deed of partition further subdivided 2712/III/MN four plots i.e. Subdivision No. 2716/III/MN (Original No. 2712/5), Subdivision No. 2715/III/MN (Original No. 2712/4), Subdivision No. 2714/III/MN (Original No. 2712/3). The deed of partition was executed by Ali Mohamed, Zena Ahmed and Amina Ahmed together with Abdulquadir Saleh Abdalla Shuruty and Abdulrehman Bin Khator. The deed was further signed by M.J Jagani Deputy Registrar and sealed with the seal of the High Court of Kenya, Mombasa, pursuant to the decree in HCCC No. 459 of 1988.

11. The decree that was issued on 20th April 1993 pursuant to the judgement of Wambilyanga J in HCCC No. 1988. Abdulrehman Bin Khator (as the administrator of the estate of Khator Bin Salim) sought leave before the Court of Appeal in Civil Application No. 313 of 1993 where he sought an extension of time to file a notice of appeal. On 19th July 1996, the appellate court was not persuaded to extend the time to file a notice of appeal and dismissed the application with costs. Therefore, the judgement and decree dated 20th April 1993 in HCCC No. 459 of 1988 were never set aside and no appeal was successfully filed, heard and determined in favour of Abdulrehman Bin Khator (as the administrator of the estate of Khator Bin Salim), the defendant therein. It is therefore just for this court to find that the deed of partition dated 23rd October 1995 was an action of executing a valid decree dated 20th April 1993. The court ordered the consolidation and subdivision of Plots No. 193 and 194 to subdivide the undivided shares that Shah had bought from Ahmed Salim. The deed of partition was executed by all parties concerned, including Abdulrehman Bin Khator who at the time was the administrator of the estate of Khator Bin Salim. The plaintiff has submitted that the consolidation and subdivision was fraudulently done by the 1st, 2nd, 3rd, 4th, 5th and 6th defendants with the collusion and connivance of the 7th, 8th and 9th defendants. From the evidence before the court, the consolidation and subdivision of Plots 193 and 194 were done in compliance with the orders of the court issued on 20th April 2993 in HCCC No. 459 of 1988. The creation of the 4 plots and the issuance of their title documents was made with the orders of the court, I wish to reiterate that the deed of partition has been signed by Abdulrehman Bin Khator who at the time was the administrator of the estate of Khator Bin Salim and also by the court’s deputy registrar as ordered in the decree.

12. The decree in HCCC No. 459 of 1988 was successfully executed by the parties herein through the deed of partition which was sanctioned by the court as signed and sealed by its deputy registrar. What is clear to the court is that the court undoubtedly ordered for the consolidation and subdivision of plots 193 and 194 in order for Shah to get the share he had bought from Ahmed Salim. Abdulrehman Bin Khator failed to successfully appeal against the said judgement and decree that ordered the consolidation and subdivision. The court also notes that PW3 during cross-examination admitted that HCCC No. 459 of 1988 ordered for the partition and subdivision of the suit properties and there was no appeal against the judgement rendered.

13. Abdulrehman Bin Khator participated in the execution of the deed of partition that consolidated and subdivided the said plots, nowhere did he express any displeasure besides seeking leave to file a notice of appeal out of time which was rejected by the appellant court. In Hadkinson vs Hadkinson (1952) 2 All E.R 567 Romer L.J held that;“It is the plain and unqualified obligation of every person against, or in respect of, who an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C, said in Chuck v Cremer (1) (1 Coop temp. Cott 342):“A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors or their solicitors, could themselves judge whether an order was null or valid whether it was regular or irregular. That they should come to court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.” (emphasis mine)

14. Section 26 (1) of the Land Registration Act states that a certificate of title can be challenged on the ground of fraud or misrepresentation to which the person is proved to be party to. It is trite law that any allegations of fraud must be pleaded and strictly proved, the plaintiffs herein have pleaded fraud and collusion on the part of the defendants. They ought to discharge their burden of proof of the allegations they have advanced on a higher standard than ordinary civil cases. Once fraud has been successfully proven, the court can base it as a ground for cancellation of a title. The Court of Appeal of Uganda held in Katende vs Haridas and Company Limited (2008) EA 173 stated that;“for a party to plead fraud in registration of land a party must first prove fraud was attributed to the transferee. It must be attributed either directly or by necessary implications that is, the transferee must be guilty of some fraudulent act or must have known such act by someone else and taken advantage of such act. Fraud can be participatory that is, the party participates in the fraudulent dealings. Fraud can also 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. All those people who actually participate in the fraudulent transactions and who had knowledge of it are privy and hade notice of fraud.”

15. The onus is on the plaintiffs who pleaded fraud to prove that the deed of partition, transfer forms as well as title documents issued were fraudulent. Court of Appeal in Kinyanjui Kamau v George Kamau Njoroge (2015) eKLR held that,“In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR (Civil Appeal No. 106 of 2000) Tunoi JA (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

16. However, the plaintiffs have failed to do so, the 2nd defendant has demonstrated to this court that in HCCC No. 459 of 1988, the court after considering the judgement in HCCC No. 241 of 1961, that Ahmed Salim retained his undivided shares in the suit properties and ordered that the same be partition in order for the division of the shares he had sold to Shah to be identified. In my view, there was no collusion or fraud on part of the defendants, the evidence before court is that the consolidation and subdivision were done as per the orders of the court, openly and lawfully. The court has perused the deed of partition which bears the signatures and the official rubber stamp of the government offices including that of the court. There is no credible evidence that has been presented before this court to the contrary. Abdulrehman Bin Khator, who at the time was the administrator of the estate of Khator Bin Salim was one of the executors of the deed of partition. PW1 in this evidence, claimed that the 1st defendant did not sign the deed of partition or the transfer forms and that he was not involved in the partitioning of the suit properties, however, no evidence has been placed before the court to demonstrate that, that was not his signature on the deed of partition. It is the finding of this court that he was therefore part of the process as he was well aware that Ahmed Salim was entitled to his share in the suit properties. The exercise of consolidation of the suit properties, their subdivision and the transfer of the said plots in the names of the 2nd, 3rd, 4th, 5th and 8th defendants was lawful. The plaintiffs argued that the 1st defendant, who was the administrator of the estate of Khator Bin Salim was rogue at the time and acted outside the interest of the estate, however, no evidence was led to establish these allegations.

17. The rule of law requires that orders of the court be respected and obeyed, a party that is dissatisfied with can appeal to an appellate court. This court cannot divert, change or review the orders of the court in HCCC No. 459 of 1988. The Court of Appeal in Bellevue Development Company Ltd vs Gikonyo & 3 others; Kenya Commercial Bank & 3 others (Interested Parties) (Civil Appeal 239 of 2018) (2018) KECA 330 (KLR) (21 September 2018) (Judgment) held that;“I have no difficulty upholding the learned Judge's holding that as a judge of the High Court he had no jurisdiction to enquire into or review the propriety of the decisions of the Judges, who were of concurrent jurisdiction as himself. In our system of courts, which is hierarchical in nature, judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other. No judge of the High Court can superintend over fellow judges of that court or of the superior courts of equal status. That much is plain common sense. It has, moreover, been expressly stated in Article 165(6) of the Constitution in these terms;“ The High Court has supervisory jurisdiction over the subordinate courts and over any other person, body or authority exercising a judicial or quasi judicial function, but not over a superior court.”

18. No matter how old a decision of the court is, as long as it remains unchallenged i.e. it has not been set aside, reviewed, varied or appealed against it is valid. This court cannot review a decision of a court of concurrent jurisdiction. Even though the decision was made before the new constitution and 20 years before this court was created, it still stands and is valid. The plaintiffs are seeking to obtain from this court a different decision from one already rendered by the court in other proceedings over the same matter. The plaintiffs must be contented with the legal processes of appeal or review of the decision delivered by the court and will not be permitted to re-agitate matters. The plaintiffs have already taken the appeal route, which failed as their application to seek leave to file a notice of appeal out of time was rejected by the court.

19. It is the finding of this court that the creation of Subdivision No. 2712 (Original No. 193 and 194) of Section III Mainland North Title No. 25154 on 24th October 1995 indicating Laxmichard Virchand Karamshi Shah, Ali Mohamed, Zena Ahmed and Amina Ahmed, Abdulquadir Saleh Abdalla Shuruty and Abdulrehman Bin Khator as the registered owners were valid and lawful. Consequently, the registration of Ali Mohamed, Zena Ahmed and Amina Ahmed as the registered proprietors of Subdivision 2715/III/MN (Original No.2711/4) was valid. The 3rd, 4th and 5th defendants held a valid title that was properly acquired following the partition and subdivision of Plots 193 and 194 as directed by the court in HCCC No. 459 of 1988. The plaintiffs have pleaded that the same was improperly acquired but the evidence that has been placed before the court shows that the same was acquired through a proper process and the title can be said to be a good title. Therefore the 3rd, 4th and 5th defendants had good and valid titles which they passed to the 8th defendant upon the sale and transfer dated 23rd February 1996 in favour of Burbank Enterprise Limited. It is the finding of this court that the registration of Burbank Enterprise Limited as the proprietor of Subdivision No. 2715/III/MN (Original No. 2712/4) on 26th February 1996 was valid and they continue to hold a valid title.

20. In conclusion the court finds that the plaintiffs herein have not proved their case on a balance of probabilities and is dismissed with costs to the defendants.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 25TH DAY OF SEPTEMBER 2024. N.A. MATHEKAJUDGE