Karisa v Jefwa & 17 others [2023] KEELC 22530 (KLR) | Land Adjudication | Esheria

Karisa v Jefwa & 17 others [2023] KEELC 22530 (KLR)

Full Case Text

Karisa v Jefwa & 17 others (Environment & Land Case 251 of 2016) [2023] KEELC 22530 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22530 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 251 of 2016

EK Makori, J

December 14, 2023

Between

Rogers Kazungu Karisa

Plaintiff

and

Katana Kalama Jefwa

1st Defendant

Shomari Juma Mohammed

2nd Defendant

Nzamaco Metal Works Ltd

3rd Defendant

Hamatone Charo Kabaila

4th Defendant

Said Salim Soban

5th Defendant

Amina Athman Omar

6th Defendant

Charles Ngwono Ngoe

7th Defendant

Naima Abdalla Salim

8th Defendant

Johnson Mudhama Muasya

9th Defendant

Albert J. Farah Maonga

10th Defendant

Lucas Ben Oyuyo

11th Defendant

Johora Ahmed Daib

12th Defendant

Dominic Otieno Oriwi

13th Defendant

Abdul Rahman Kadhi

14th Defendant

Benson John Odhiambo Otedo

15th Defendant

Lucy Wanjiku Kariega

16th Defendant

Pelesia Atieno Wamidha

17th Defendant

Fransis Washiali Tsalwa

18th Defendant

Ruling

1. The plaintiff in his plaint dated September 21, 2016 sought the following relief (s):a.An order of rectification of the Register relating to suit property by cancelling all titles that were sub-divided from title Kilifi/Mtondia/107 namely Title Kilifi Mtondia/ 742, 743, 819, 820, 822, 823, 824, 825, 826, 827, 828, 829, 830, 832, 833, 834, 835, 836, 837 and 838 and also by canceling the registration of title Kilifi/Mtondia/107 in the name of the 2nd and 1st Defendants and instead registering the said title in the name of the plaintiff.b.Permanent injunction.c.Costs and interest of this suit.d.Any other relief this Court may deem necessary to grant.

2. The 3rd, 4th, 5th, 6th, 7th, 8th,9th, 10th 11th and 15th defendants opposed the plaintiff’s claim and defended the suit.

3. Rodgers Kazungu Karisa - plaintiff testified as PW1 and adopted his written statement dated September 21, 2016 as his testimony in chief. The statement is on pages 10 to 21 of his bundle of documents. He produced in evidence the exhibits in his list of documents dated September 21, 2016. The exhibits are from pages 14 to 62 of the bundle.

4. Mr. Nzamba Kavili a director of the 3rd Defendant testified as DW1. He adopted his written statement dated 13th April 2017 as his testimony in chief and produced in evidence the exhibits listed in his list of documents dated March 22, 2019.

5. Mr. Hamatone Charo Kabaila - the 4th defendant testified as DW2 and adopted his written statement dated December 17, 2019 as his testimony in chief. He produced in evidence exhibits 1 to 7 listed in his list of documents dated December 17, 2019.

6. Mr. Albert Farah Maonga - the 10th defendant testified as DW3. He also adopted his written statement dated 18th July 2019 as his testimony in chief.

7. The 1st, 2nd, 5th, 6th, 7th, 8th, 9th, 11th, 12th, 13th, 14th, 15th, 16th, 17th and 18th defendants did not testify in the case.

8. PW1 testified that the establishment of the Mtondia Settlement Scheme in the year 1980 found him already in occupation of the suit land, having settled thereon sometime in the year 1971. He was identified as the settler on the suit land but unbeknown to him the 1st defendant who was a settler at the Kibarani Settlement Scheme got himself allocated the suit land and was subsequently registered as the owner. The 1st defendant then transferred the suit land to the 2nd defendant who subdivided it into several parcels of land which he sold to the 3rd to 18th defendants. That notwithstanding those developments the Plaintiff has remained in physical possession of the suit land.

9. The plaintiff’s case is that the registration of the suit properties was obtained illegally, unprocedurally, and using fraud, misrepresentation, and omission, as enumerated in the plaint. In support of his case, the plaintiff produced in evidence exhibits in a bundle of documents dated September 21, 2019. On page 59 of the plaintiff’s bundle of documents is a ground report dated November 27, 2003 which shows that as of November 17, 2003 when a visit was made to the suit land by the District Land Adjudication and Settlement Officer, the plaintiff was found to have been in occupation of the land and that he had made several developments thereon. The report indicates that the 1st defendant's name was in the nominal roll of the scheme but that he had not been documented. The report according to the plaintiff, corroborates the testimony that the 1st defendant had never been a settler on the land at the time of the establishment of the scheme. On pages 61 to 62 of the plaintiff's bundle of documents are photographs showing the houses erected on the suit land by the plaintiff which are mentioned in the ground report. On page 58 of the plaintiff's bundle of exhibits is the extract of the original register (green card) for Title No.Kilifi/Mtondia/107. It shows that the 1st defendant was registered as owner of the suit land on 14th July 1998 upon transfer from the Settlement Fund Trustees and a title deed was issued to him on that same date. As per the plaintiff, this exhibit also shows that on that same date of registration of the 1st defendant as owner of the land, the same Title was subdivided into two parcels, namely Title No.Kilifi/Mtondia/742 and 743. On page 57 and page 47 of the plaintiff's bundle of documents are green cards showing that the 2nd defendant was registered as the owner of Title No.Kilifi/Mtondia742 and 743 respectively on the same date of 14th July 1998 and the said parcels were also further subdivided into several other parcels of land all on the same date.

10. The 3rd, 7th, 9th, 11th, and 15th defendants are of the view, in the testimony in this court by Mr.Nzamba Kavili a director of the 3rd Defendant testified as DW1, that they are innocent purchasers for value without notice. The land in question was initially under the Settlement Fund Trustee (SFT), being part of the Kilifi/Mtondia Settlement Scheme established by the Government of Kenya. Katana Kalama Jefwa,(the 1st plaintiff) was the initial allottee of the land in question. He paid all the requisite loans to the SFT and was granted a discharge of Charge. The purchases and subdivisions that followed were after due diligence. There was nobody on the ground when the said defendants purchased the land in dispute.

11. Mr. Hamatone Charo Kabaila - the 4th defendant who testified as DW2 and Mr. Albert Farah Maonga - the 10th defendant who testified as DW3, adopted, a similar stance that they were innocent purchasers for value and that the original title had passed hands from Katana Kalama Jefwa,(the 1st plaintiff) was the initial allottee of the land in question before the purchased the same. The plaintiff is a total stranger to them in respect to the suit property.

12. Plaintiff submitted that the registration of the suit land in favour of the 1st defendant and its subdivision into two parcels of land and then transfer to the 2nd defendant could not procedurally and legally have been effected on the same date as evidenced in the green card, The 1st defendant would first have had to be registered as the owner of the land before he could have the legal capacity to not only sell the land but also to enable him to apply for the consent of the Land Control Board to subdivide the land and thereafter have the legal capacity to apply for consent to sell the resultant two parcels of land to the 2nd defendant. The plaintiff further averred that the Land Control Board could not have sat in a meeting on an application by the 1st defendant to subdivide the suit land on the same date that he was to be registered as owner of the land and then proceed to issue a consent for subdivision of the land before he was even registered as owner of the land earmarked for subdivision and legally manage to get the land subdivided while being registered as the owner and then on the same meeting and at the same time proceed to grant consent to the yet to be registered 1st defendant to sell the parcels that are to be subdivided to the 2nd defendant.

13. The plaintiff highlighted the anomaly and referred the Court to page 57 of the plaintiff's bundle of exhibits is the green card for Title No.Kilifi/Mtondia/742. It shows that the 2nd defendant was registered as the owner of the said parcel of land on the same date of 14th July 1998 and that on the same date, the same parcel of land was subdivided into 9 parcels of land namely, Title No.Kilifi/Mtondia/819, 820, 821, 822, 823, 824, 825, 826, and 827. Further On page 47 of the plaintiff's bundle of exhibits is the green card for Title No.Kilifi/Mtondia/743. It shows that the 2nd defendant was also registered as the owner of the said parcel of land on the same date of 14th July 1998 and that on the same date, the parcel of land was further subdivided into 11 parcels of land namely, Title No.Kilifi/Mtondia/828, 829, 830, 831, 832, 833, 834, 835, 836, 837 and 838.

14. The plaintiff contended that the registration of the said parcels of land in favour of the 2nd defendant and their subdivision into the said parcels of land could not procedurally and legally have been effected on the same date as evidenced in the green cards. The 2nd Defendant would first have had to be registered as the owner of the said parcels of land before he could have the legal capacity to apply for the consent of the Land Control Board to subdivide the land and thereafter apply for consent to sell the resultant subdivided parcels of land to the 3rd to the 18th defendants.

15. The plaintiff prayed that the Court take judicial notice of the fact that before any person is granted consent by the relevant Land Control Board to either subdivide or sell land he must first furnish proof of his ownership of that land. In this case, the 1st and 2nd defendants could not have had the proof of ownership of the suit properties when they were yet to be registered as owners thereof.

16. Further to the preceding the process of subdivision of registered land entails the preparation of Mutation Forms by a land surveyor and their registration at the land registry for purposes of amending the Registered Index Map (RIM) that would have been prepared and registered when the suit land was being registered for the first time. The Mutation form is signed by the registered owner of the land. The 1st and 2nd defendants could not procedurally and legally have signed Mutation Forms for land that was yet to be registered in their respective names. If that happened then it means that the 1st and 2nd defendants applied for consent to subdivide the land even before they were registered as owners of the parcels of land and even before the RIM for the land had initially been prepared and registered. It is in evidence that the 2nd defendant subsequently transferred several parcels of land to the 3rd to 18th defendants. The 3rd, 4th, and 10th defendants confirmed this fact by their testimony. The plaintiff thus argued that the subsequent transfer of the suit properties by the 2nd defendant to the 3rd to 18th defendants was also unprocedural and riddled with illegality and outright fraud. On pages 15 and 16 of the plaintiff's bundle are copies of the certificates of official searches for Title No.Kilifi/Mtondia/819 and 820 are registered in the name of the 3rd defendant. On pages 55 and 56 are the relevant green cards. The green cards show that the 2nd defendant had been registered as owner of the two parcels of land on July 15, 1998 and a day later on July 16, 1998 the parcels were transferred to the 3rd defendant. Although DW1 a witness for the 3rd defendant testified that it legally acquired the suit properties from the 2nd defendant, the 3rd defendant did not adduce any evidence to show how it acquired the suit properties. Given the fact that the 2nd defendant was registered as the owner of the suit properties on July 15, 1998 and the 3rd defendant on July 16, 1998 then on which date did the 2nd defendant apply for consent of the Land Control Board and on which date could the Land Control Board have sat to grant its consent? DW1 testified that the Land Control Board granted its consent to the sale but no such evidence was availed by the 3rd defendant. No evidence of the transfer or sale agreement for the two suit properties was produced by the 3rd defendant.

17. A report dated March 16, 2017 by the County Co-coordinator of the National Land Commission, according to the plaintiff, gives what it refers to as the ‘background history’ of the suit properties. No supporting documents of what is stated in paragraphs 1 to 8 were exhibited. Its findings that the 2nd defendant gifted the plaintiff 2 acres is not supported by any evidence and is contradicted by the green card on page 51 of the plaintiff's bundle of documents in which it is shown that Title No.Kilifi/Mtondia/824 measuring approximately 2 acres was transferred to the plaintiff on September 22, 1998 upon consideration of Ksh.10,000/-and not as a gift. On page 17 of the plaintiff's bundle is a certificate of official search for Title No.Kilifi/Mtondia/821 in the name of the 4th defendant. Its relevant green card is on page 54 of the bundle. It shows that the 2nd defendant was registered as owner of the suit property on July 15, 1998 and that on October 29, 1999 the suit land was registered in the name of the 4th defendant. On page 25 of the plaintiff's bundle of documents is a certificate of official search for Title No.Kilifi/Mtondia/829 in the name of the 10th defendant. The green card for the title is on page 45 of the bundle. It shows that the 2nd defendant was registered as owner of this title on July 15, 1998 while the 10th defendant was registered as the owner on July 16, 1998. In support of his case, the 10th defendant produced in evidence an undated application for consent of the Land Control Board as well as a letter of consent of the Land Control Board dated April 30, 1998 in his list of documents dated December 17, 2019. The consent letter shows that the Land Control Board held its meeting to grant consent on April 30, 1998. The Plaintiff submitted that the Land Control Board can't have sat to grant its consent on April 30, 1998 and if it did then the same was highly irregular or unprocedural for the reason that even the 2nd defendant who was selling the suit land had by then not been registered as owner of that land. The green card clearly shows that he was registered as the owner of that parcel of land on July 15, 1998 and could not have had the legal capacity to apply for consent to sell that parcel of land. In fact, at that time the parcel of land had not been subdivided from Title No.Kilifi/Mtondia/742. The subdivision was on July 14, 1998 as shown on the green card on page 57 of the plaintiff’s bundle.

18. The plaintiff further asserted that DW1, DW2, and DW3 testified that they carried out due diligence before buying the suit properties and found that the suit properties were vacant. However, the evidence by the plaintiff has shown that he has all along been in physical possession of the suit land, and had they conducted due diligence they would have noticed the presence of the plaintiff on the suit properties.

19. The plaintiff pointed out that although under Section 26(1) of the Land Registration Act No.3 2012, a certificate of title issued by the Registrar upon registration or to a proprietor upon a transfer is prima facie evidence that the person named therein is the absolute and indefeasible owner, the same is subject to challenge on the ground of fraud, misrepresentation or where the certificate was acquired illegally, unprocedurally or through a corrupt scheme.

20. The plaintiff opined that the mere fact that the defendants have title deeds to the suit properties does not in itself prove that the acquisition of the title was legal because the title to the suit property is a product of a process and not the end in itself and that when the title is challenged then one must demonstrate that he obtained the title procedurally devoid of any defect. There is a need for the defendants to demonstrate how they got their title starting with its root. For this proposition of the law, the plaintiff relied on the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR.

21. The defendants did not demonstrate how they acquired the titles from the 2nd defendant. None of the defendants produced any document of transfer from the 2nd defendant to themselves. There is no proof as to how the transfers were effected from the 2nd defendant to themselves.

22. The plaintiff submitted that the evidence adduced has shown that the registration of the defendants as owners of the suit properties was obtained illegally and unprocedurally. There is no way that the 2nd defendant could have procured the titles to the suit land meant for settling squatters on the same date the 1st defendant was registered as owner of Title No.Kilifi/Mtondia/107 without his involvement in the misrepresentation that the 1st defendant was the genuine occupant or settler on land Title No.Kilifi/Mtondia/107. The 1st defendant knew that he was not the genuine settler on the suit land which is why after being registered as the owner he hurriedly transferred the same to the 2nd defendant who also hurriedly subdivided the suit land into several parcels of land intending to dispose of them to third parties.

23. The plaintiff poses a question - why would the 1st defendant if indeed he was the one in occupation of the land at the time of the establishment of the scheme and had been procedurally allocated the land in a settlement scheme meant to settle the landless proceed to sell it to the 2nd defendant on the same date that he is allocated and registered as owner of the land? The plaintiff submitted that the 1st defendant did that because he was not the genuine settler in the scheme. PW1 testified that at the time of the establishment of the scheme, the 1st defendant was settled at the Kibarani Settlement Scheme and not at the Mtondia Settlement Scheme.

24. The plaintiff further stated that the 2nd defendant must have colluded with the 1st defendant to have him registered so that he could transfer the land to himself to enable him to subdivide and sell the suit properties to the other defendants - the field diagram for Title No.Kilifi/Mtondia/107 produced by the 4th defendant as exhibit No.3 revealed the fact that the subdivision of the original title had been planned to result into the two parcels of land and thereafter into the several parcels of land right from the beginning. The 4th and 10th defendants testified that they were shown the field diagram by the 2nd defendant. This is a pointer to the fact that they were party to the entire project. They were not bona fide purchasers for value without notice. The plaintiff submits that the defendants' claim of innocent purchasers for value without notice does not afford a defence where it is proved that the 1st and 2nd defendant acquired their respective titles unprocedurally or illegally as in this case. So long as the 1st and 2nd defendants acquired their titles illegally or unprocedurally, then no valid title passed to the 3rd to 18th defendants.

25. The plaintiff argued that Section 26(1)(b) of the Land Registration Act No.3 of 2012 removes the protection from an innocent purchaser in that his title is impeachable so long as that title was obtained illegally, unprocedurally, or through a corrupt scheme and one need not show that the title holder contributed to the illegality. Section 80(2) of the said Act affords protection to a title holder who is in possession. In the present case, none of the defendants are in possession. The plaintiff stated that given the fact that the 2nd defendant obtained the suit properties illegally, then transferred them to the 3rd to 18th defendants, the claim of innocent purchasers for value without notice cannot afford a defence for the reason that the 2nd defendant did not have valid titles to the suit properties in the first place. The titles of the 1st and 2nd defendants are impeachable by dint of Section 26(1)(b) as read with Section 80 (1) of the Land Registration Act No.3 of 2012. They should not be allowed to stand. If they are canceled then it follows that any subsequent transactions from the 2nd defendant to the 3rd to 18th Defendants have to be cancelled as well for the initial titles of the 1st and 2nd defendants from whom they derive their respective titles are tainted with illegality. The 1st and 2nd defendants had no valid titles in the suit properties to pass to the 3rd to 18th defendants.

26. The plaintiff submitted that the titles in the suit properties that were held by the 1st and 2nd defendants having been obtained illegally and unprocedurally then any subsequent titles that are founded on them are also invalid and the doctrine of innocent purchaser for value without notice is not open to the defendants. For these reasons, the plaintiff was of the view that the suit is merited and prayed that the orders sought to be allowed in its entirety as prayed for in the plaint dated September 21, 2016.

27. The 4th,5th, 6th, 8th, and 10th defendants maintained in submissions that they are innocent purchasers for value without notice and being registered owners of the said titles, the same cannot be cancelled. The Court was referred to the Black’s Law Dictionary, 8th Edition on the definition of ‘Bona fide purchaser’

28. The same stance on purchasers for value without notice was adopted by the 3rd,7th,9th,11th, and 15th defendants. It was further submitted that after Katana Kalama Jefwa (1st defendant) was granted a discharge of charge, all relevant documentations were issued by the Kilifi Land Registry. Neither the relevant Adjudication and Settlement Department, the settlement Fund Trustee nor the Land Registry were sued to explain the process leading to the 1st defendant allotted the land in question. The said Katana Kalama Jefwa paid the required charges to the SFT and a discharge of charge was issued to him before he was registered as the owner of the parcel of land in contention. The plaintiff has not shown he paid for the land as required under the SFT regime.

29. The 3rd, 7th, 9th, 11th, and 15th defendants opined that they could not be dragged into the feuds of the plaintiff and the said Katana Kalama Jefwa, on the manner acquisition was initially obtained.

30. The 3rd, 7th, 9th, 11th, and 15th question why the plaintiff has waited for over 40 years to question the adjudication process oblivious of the imperative imposed by law on how to query such process. The plaintiff ought to have raised his grievances as provided under the Land Adjudication Act Cap—284 Laws of Kenya.

31. It is further argued that the 3rd,7th,9th,11th, and 15th defendants were variously registered as owners of the respective parcels between 1998 and 1999, this suit was filed in 2016 it is a stale demand that was filed well beyond the scope of recovery of land as provided under Section 7 of the Limitation of Actions Act Cap. 22 Laws of Kenya. Reliance was placed on the case of Edward Moonge Lengusuranga v James Lanaiyara & Another [2019] eKLR.

32. The 3rd,7th,9th,11th, and 15th defendants further averred that the letter dated November 27, 2003 by the Land Adjudication and Settlement Officer Kilifi which showed that the plaintiff was a squatter on that land as of November 17, 2003 when the said officer visited the ground yet title document was issued to the defendants in the years 1998 and 1999. He was never allotted the land in contention. By 2003, the plaintiff was aware of the acquisition of the land by the 1st defendant and waited till 2016 to sue which is well over 12 years of the required time for recovery of land. His claim it was contended is time-barred even on the allegations of fraud under Section 26 of the Limitation of Actions Act Cap. 22 Laws of Kenya.

33. The 3rd,7th, 9th, 11th, and 15th further stated that the National Land Commission investigated the issues raised herein by the plaintiff and in its report dated March 16, 2017 dismissed the plaintiff's claim and found instead that the plaintiff was awarded 2 acres by one Shomari as a gift which was a sub-plot to plot No. 742 and title was issued to him under his name.

34. The issues that stand for the determination of this Court is whether to issue an order of rectification of the Register relating to suit property by canceling all titles that were sub-divided from title Kilifi/Mtondia/107 namely Title Kilifi Mtondia/ 742, 743, 819, 820, 822, 823, 824, 825, 826, 827, 828, 829, 830, 832, 833, 834, 835, 836, 837 and 838 and also by canceling the registration of title Kilifi/Mtondia/107 in the name of the 2nd and 1st defendants and instead registering the said title in the name of the plaintiff. Whether to issue a permanent injunction in the circumstances. Who should bear the Costs and interest of this suit?

35. Kilifi/Mtondia/107, the subject of this lawsuit, was originally named under the Settlement Funds Trustees Scheme. The Settlement Fund Trustees are a group of Trustees appointed under Section 167 of the Agriculture Act, Cap 318, with the responsibility of settling "settlers" on either government land that has not been alienated or land that the Settlement Fund Trustee has purchased from private owners. The Court of Appeal in the case of Eliud Nyongesa Lusenaka & Another v Nathan Wekesa Omocha, [1994] eKLR held as follows concerning the SFT:“The short answer to that proposition is that land owned by the SFT is not land owned by the Government. Under section 167(1) of the Agriculture Act, the SFT is a body corporate with a perpetual succession and can acquire and own property on its own right and can sue and be sued. The interest of the Settlement Fund Trustees (SFT) is that of a chargee over the parcel of land that it owns.”

36. Further, the Court of Appeal in the case of Boniface Oredo v Wabomba Mukile, Civil Appeal No. 170 of 1989(unreported) held as follows:“The interest of the Settlement Fund Trustees is really that of a chargee. “It lends money for development to persons to whom it has allocated land and the repayment of such money is secured by a charge upon the property.”

37. The plaintiff in this case testified that the registration of the suit properties was obtained illegally, unprocedurally, and using fraud, misrepresentation, and omission, as enumerated in the plaint. In support of his case, a ground report dated November 27, 2003 showed that as of November 17, 2003 when a visit was made to the suit land by the District Land Adjudication and Settlement Officer, the plaintiff was found to have been in occupation of the land and that he had made several developments thereon. The report indicated that the 1st defendant's name was in the nominal roll of the scheme but that he had not been documented. The report according to the plaintiff, corroborated the testimony that the 1st defendant had never been a settler on the land at the time of the establishment of the scheme. the original register (green card) for Title No.Kilifi/Mtondia/107 showed that the 1st defendant was registered as owner of the suit land on July 14, 1998 upon transfer from the Settlement Fund Trustees and a title deed was issued to him on that same date. As per the plaintiff, on that same date of registration of the 1st defendant as owner of the land, the same Title was subdivided into two parcels, namely Title No.Kilifi/Mtondia/742 and 743 green cards showing that the 2nd defendant was registered as the owner of Title No.Kilifi/Mtondia742 and 743 respectively on the same date of 14th July 1998 and the said parcels were also further subdivided into several other parcels of land all on the same date. The plaintiff is of the view that he is the one who ought to have been registered as the person on the ‘ground’ and he is still on the ‘ground’ to benefit from the settlement and not the 1st defendant.

38. The plaintiff did not show he paid to the Settlement Fund Trustee and got a discharge of charge nor has he proved the alleged fraud. His claim would have best been addressed under the Settlement Funds Trustee regime.

39. The Report by the NLC dated March 16, 2017, albeit objected to by the plaintiff further gives a synopsis of how the land in question moved from the original owner – the SFT to the 1st and 2nd defendants and subsequently to the other defendants through further subdivisions. The land KilifiMtondia/107 was initially allocated to Katana Kalama Jefwa as the 1st allottee. On July 21, 1993 Katana made the 1st payment of of Kshs. 10,000/=. On 25th May 1994 he forwarded a set of executed documents in his favour to the relevant authorities. In 1997 he requested the legal documents to be endorsed in his favour to secure his security of tenure and a response was made thereto. On 24th of July 1997, appendix ‘B’ showing clearance of payment was made. He filed appendix ‘A’ for subdivision into 6 acres by 6 acres and consent was granted by Bahari Land Control Board. Plot No. 742 - 2. 42 Ha. and 743 – 2. 42 Ha. Mutation was done dated June 16, 1998. On September 22, 1998 Rodgers Kazungu (the plaintiff) wrote a letter of acceptance and appreciation to Shimori on plot Kilifi/Mtondia/824. After subdivisions of the two plots 742 and 743 other sub-plots were done to the said parcel plots No. 819 and 820. The report therefore refuted the plaintiff's claim and found instead that the plaintiff was awarded 2 acres by one Shomari as a gift which was a sub-plot to plot No. 742 and the title was issued to him under his name. The plaintiff in my view knew the chronology of events on how the suit property changed hands.

40. The initial registration happened in the years 1998, and 1999 what has the plaintiff been waiting for? The plaintiff did not sue either the SFT, the Adjudication and Settlement Department, or the relevant Land Registry to give us a glimpse into how the process of adjudication was undertaken or how SFT decided to allocate the initial land in question to the 1st defendant. This Court cannot go back in time and discover for itself what could have transpired, how the alleged fraud was carried out. Besides, the plaintiff’s claim suffers larches and delays. Why wait from 1998 and 1999 when the initial titles were issued and sue in 2016?

41. The Plaintiff's claim is hereby dismissed with costs to the defendants.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 14TH DAY OF DECEMBER 2023. E. K. MAKORIJUDGEIn the Presence of:Mr. Shujaa for PlaintiffsIn the Absence of:Mr. Kinaro for 3rd, 7th, 9th, 11th and 15th Defendants