Star Fish Cottages Ltd v Halima Amir Boi, Kwaljeet Singh Rekhi, District Land Registrar, Kwale & Attorney General [2019] KEELC 786 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

ELC NO. 237  OF 2004

STAR FISH COTTAGES LTD...........................................................PLAINITFF

VERSUS

HALIMA AMIR BOI................................................................1ST DEFENDANT

DR. KWALJEET SINGH REKHI..........................................2ND DEFENDANT

DISTRICT LAND REGISTRAR, KWALE...........................3RD DEFENDANT

THE HON. ATTORNEY GENERAL....................................4TH  DEFENDANT

JUDGMENT

(Suit by plaintiff asserting ownership of suit land; the land being a subdivision of a larger parcel of land which was owned by the father to the 1st defendant and two other persons; the co-proprietors having subdivided the parent land to bring forth the suit land as one of the subdivisions; suit land sold by the co-proprietors and the plaintiff being a third purchaser of it and obtaining title in the year 1981; 1st defendant’s father later claiming that he was not privy to the sale by his co-proprietors; this being found to be untrue; 1st defendant’s father duping court to have title of the plaintiff cancelled; court reinstating plaintiff’s title after becoming aware of 1st defendant’s father’s deception; 1st defendant now claiming that she obtained title through transmission from her late father’s estate; estate of 1st defendant’s father could not have title to transmit as the same was quashed by an order of court and affirmed to the plaintiff; 1st defendant obtaining registration as title holder and selling the land to the 2nd defendant; 2nd defendant claiming to be an innocent purchaser; 1st defendant had no land to sell to 2nd defendant; immaterial that 2nd defendant was an innocent purchaser for no person should be deprived of his/her land owing to the fraud of another; title of 2nd defendant cancelled; plaintiff affirmed to be the genuine title holder of the suit land)

1. This is now an old case that was commenced through a plaint which was filed on 14 October 2004 which plaint was later amended. In the original plaint, the plaintiff sued one person, Halima Amir Boi (Halima or 1st defendant) and averred that she is the registered proprietor of the land parcel Kwale/Galu Kinondo/719 through a Land Certificate issued on 16 December 1981 (hereinafter also referred to as the suit land). It was pleaded that on 17 October 2003, Halima got herself fraudulently registered as the proprietor of the suit land, inter alia by claiming that the suit land has been transmitted to her from the estate of Amir Ali Boi (also known as Amiri Ali Boi and henceforth Amir Boi) when in fact the land did not belong to Amir Boi. The plaintiff asked for orders to have Halima’s title cancelled and a declaration that the suit land is properly owned by the plaintiff. While these proceedings were pending, Halima sold the suit land to Dr. Kwaljeet Singh Rekhi (Dr. Singh), and transferred the title to him on 8 November 2005. Perhaps given that title had been transferred, the plaintiff moved and amended her plaint to include Dr. Singh as 2nd defendant and The District Land Registrar, Kwale and the Attorney General as the 3rd and 4th defendants. Halima remained as the 1st defendant.

2. The 1st defendant filed defence on 8 December 2006 where she pleaded that it is her father, the late Amir Boi, who was registered as proprietor of the suit land through a judicial review order granted by the High Court of Kenya at Mombasa in the year 1991. She averred that Amir Boi got registered as proprietor on 12 March 1992 and that he died intestate on 10 December 1997 leaving the 1st defendant as executrix of his estate. She stated that she became registered as proprietor on 17 October 2003 after the process of administration was done and a confirmed grant issued. She inquired from the land registry and found that there was a caution entered by Ian Gordon, a director of the plaintiff, on 1 September 2004, claiming ownership which caution was later removed. She denied the allegation that she got registered as proprietor by way of fraud.

3. Dr. Singh on his part filed a defence on 3 February 2012. He pleaded inter alia that he is an innocent purchaser for value and that he carried out due diligence before purchasing the suit land, which diligence confirmed that the 1st defendant is the registered proprietor. He has asserted that he now holds good title to the suit land.

4. The 4th and 5th defendants filed defence on 5 March 2012. They pleaded that they are strangers to the claims of the plaintiff and denied conspiring with the 1st defendant to defraud the plaintiff the suit land.

5. The plaintiff called Sharon Gordon, a director of the plaintiff company as her sole witness. The 1st defendant testified and called two witnesses. The 2nd defendant also testified but did not call a witness whereas the 3rd and 4th defendants called one witness. I have assessed both the oral and documentary evidence that has been presented and from the same the following facts emerge.

6. The suit land (Plot No. 719) was carved out of a larger land parcel No. 677 which is the original parcel of land upon land adjudication. This Plot No. 677 had a dispute between Amir Boi and two others on one hand, and one Ali Khan and Mbaruk Mohamed on the other hand, on who the land ought to be adjudicated to and who ought to be registered as first proprietor upon adjudication. This dispute, being a land adjudication dispute, was heard through the land adjudication dispute resolution mechanism as provided in the Land Adjudication Act (Cap 284) Laws of Kenya. The final decision was made by the Minister in the year 1976 who held that this land (Plot No. 677)  should be jointly owned by three persons, namely Amir Boi, Salimu Bakari and Omari Mohamed. I have not seen the title to this Plot No. 677 but I have no reason to believe that title was never issued in the names of the three proprietors. This plot No. 677 was subsequently subdivided into the Plots No. 718 to 724. The suit land is Plot No. 719, thus among the parcels carved out of the subdivision of Plot No. 677. The first registered proprietors of the suit land were jointly Amir Boi, Salimu Bakari and Omari Mohamed, the same persons who were the proprietors of the larger Plot No. 677. The suit land was then sold to one Njiiri, who was said to be a former police officer. This sale was contested by Amir Boi, who claimed that he was not a party to the sale despite being a co-proprietor, and he proceeded to make a report at the Diani police station on 27 November 1985,  claiming that his co-proprietors had sold the land without his consent and knowledge.  Upon investigations, it was found out that this information was false and Amir Boi was charged in Kwale District Magistrate’s Court, Criminal Case No. 1580 of 1986, with the offence of giving false information to a person employed in the public service contrary to the provisions of Section 129 (a) of the Penal Code, Cap 63, Laws of Kenya. The court did not believe the allegation by Amir Boi that he had not sold the suit land together with his co-proprietors and indeed found that he had executed the transfer documents and received his share of the purchase price. The court found that for reasons best known to himself, he was now back tracking on the transaction. Amir Boi was thus found guilty of the offence that he was charged with and convicted. This was on 29 March 1989.

7. In the year 1991, Amir Boi filed the case Mombasa HCCC Miscellaneous Application No. 131 of 1991. He claimed in the case that despite the order of the Minister, the Director of Land Adjudication and the District Land Registrar Kwale, had refused to comply with the same. He sought orders of mandamus to have the two offices implement the Minister’s order. The suit was not contested and the orders of mandamus were duly issued on 26 September 1991. Amir Boi then got himself registered as sole proprietor of all the subdivisions of the plot No. 677, that is Plots No. 718- 724. The owners of the plots No. 718 – 724, subsequently became aware of the order of mandamus and they filed an application to set the same aside. In a ruling delivered on 23 November 1992, Wambilyangah J, allowed the application and set aside the orders of mandamus. The Court found that Amir Boi had misrepresented to court that the order of the Minister had not been complied with, when in fact, the order had been implemented and Amir Boi and his co-proprietors had become registered as proprietors of the Plot No. 677 which they later subdivided and sold. The court found that Amir Boi obtained the order of mandamus on the basis of outright false allegations. The court further ordered that the persons who were previously registered as proprietors be re-registered as owners of their respective plots. When this order was made, Starfish Cottages Limited, the plaintiff herein, was the registered proprietor of the land parcel No. 719, meaning that the court directed that they be re-registered as proprietor of the land vide the order issued on 26 November 1992. The Land Registrar, Kwale, was made aware of this order and he did gazette, through Gazette Notice No. 5386 of 2nd September 1994, that Amir Boi’s title has been cancelled. Amir Boi filed an appeal to the Court of Appeal, being Civil Appeal No. 82 of 1993 but that appeal was struck out on 20 January 1995. Amir Boi sought leave to file another appeal through Civil Application No. NAI 168 of 1995, but this was dismissed on 28 July 1995.

8. At this juncture, it is prudent that I turn to the register of this Plot No. 719. The original proprietors as earlier mentioned were three, that is Amir Boi, Salimu Bakari and Omari Mohamed. There are subsequent entries which are as follows in the table below :-

ENTRY NO. DATE NAME OF REGISTERED PROPRIETOR

1 16/8/76 AMIRI ALI BOI, SALIMU BAKARI MWAGHALA, OMARI MOHAMED

2 19/8/77 JAMES NJIIRI

3 19/8/77 LAND CERTIFICATE ISSUED

4 10/4/78 KINONDO INVESTMENTS LIMITED

5. 11/4/78 LAND CERTIFICATE OF SHS 75/= ISSUED

6. 14/2/81 STAR FISH COTTAGES LIMITED

7. 16/2/81 LAND CERTIFICATE OF SHS50/= ISSUED

8. 29/10/86 CAUTION DATED 17/10/1986 BY AMIR ALI BOI OF P. O BOX 82083, MOMBASA, CLAIMING OWNERSHIP INTEREST.

9. 19/11/91 COURT ORDER FOR MANDAMUS MISC. CIVIL APPLICATION NO 13 OF 1991 ISSUED ON 4/11/1991 IN THE HIGH COURT OF KENYA MOMBASA.

10.

AMIR ALI BOI ID 2188871/65

11. 12/3/92 TITLE DEED ISSUED; RESTRICTION BY THE LAND REGISTRAR VIDE REGISTERED LAND ACT CAP 300 SECTION 136.

12. 24. 7.92 RESTRICTION REMOVED VIDE THE CHIEF LAND REGISTRAR’S LETTER REF NO. KWL/A/19/VOL 11/55 DATED 2. 7.92.

13. 20. 8.92 COURT ORDER FOR MISCELLANEOUS CIVIL APPLICATION NO 131 OF 1991 ISSUED ON 27/4/1992 IN THE HIGH COURT OF KENYA, MOMBASA.

14. 8. 2.95 COURT ORDER OF MANDAMUS ENTRY NO. 9 ABOVE SET ASIDE AND DISMISSED VIDE MISC. CIVIL APPLICATION NO. 131/1991 DATED 24/11/1992 HENCE ENTRY NO 6 STILL STANDS

NOTE NOTICE PUBLISHED VIDE GAZETTE NOTICE NO 5386 OF 2/9/1994 OF ENTRY NO. 11 ABOVE

15. 20/2/95 COURT ORDER CIVIL CASE NO. 441 OF 1994 ISSUED ON 20/2/1995 IN THE HIGH COURT OF KENYA, MOMBASA.

16. 10/9/98 COURT ORDER CIVIL CASE NO. 441 OF 1994 ISSUED ON 13/2/1998 IN THE HIGH COURT OF KENYA, MOMBASA.

17. 23/7/2003 RESTRICTION BY THE CHIEF LAND REGISTRAR VIDE LETTER NO KWL/C/16/24 UNTIL THE INVESTIGATION IS COMPLETED (SEE C/FILE – KWALE/ GALU KINONDO/677 FOLIO 70)

18. 17/10/2003 FURTHER RESTRICTION; NO DEALING BY THE LAND REGISTRAR UNTIL THE VARIOUS COURT ORDERS ISSUED BY THE HIGH COURTS ARE VERIFIED AND CONFIRMED CIVIL SUIT NO 131 OF 1991 AND THE INTEREST OF HALIMA AMIR BOI AS ADMINISTRATOR OF THE DECEASED AMIR ALI BOI IS TAKEN OF.

19. 17/10/2003 HALIMA AMIR BOI (ID NO 4605532)

20. 17/10/2003 HALIMA AMIR BOI

21. 17/10/2003 LAND TITLE KWALE/GALU KINONDO

22. 1/9/2004 CAUTION DATED 1/9/2004 BY IAN GORDON BEING A DIRECTOR OF STAR FISH COTTAGES LIMITED OF P.O BOX 63854 NAIROBI CLAIMING OWNERSHIP INTEREST.

24. 8/11/2005 KWALJEET SINGH REKHI

25. 8/11/2005 LAND TITLE DEED ISSUED

26. 28/11/2005 LAND TITLE COURT ORDER DATED 9/12/2004 RESTRICTING ALL DEALING WITH THE SUIT LAND PENDING HEARING OF APPLICATION IN HCC NO 237 OF 2004 AND DETERMINATION.

27. 16/4/2007 COURT ORDER DATED 9/12/2004 RESTRICTING ALL DEALINGS WITH THE SUIT LAND PENDING HEARING OF APPLICATION IN HCC NO 237/2004 AND DETERMINATION.

9. Picking up from where I had left off, that is the order of Wambiliyangah J that directed the reinstatement of the plaintiff as the registered proprietor, it will be observed that the Land Registry did reinstate the title of the plaintiff through entry No. 14 in the register. Entries No. 15, and 16 are court orders in respect of Mombasa HCCC No. 441 of 1994, but I do not know anything about this case, for it was not brought to my attention. Entries number 17 and 18 are restrictions which appear to have been entered by the Land Registrar.

10. The 1st defendant came to be registered as proprietor through entry No. 19  and it will be noted that she became registered as proprietor as personal representative of the late Amir Boi (deceased). Entry No. 20 is a transmission to herself and entry No. 21 is issue of title to her. Entry No. 22 is a caution entered by Ian Gordon (a director of the plaintiff) and there is no entry No. 23. The next entry is No. 24 which is the transfer to the 2nd defendant.

11. In this case, the plaintiff questions how the 1st defendant came to be registered as proprietor as administrator of the estate of Amir Boi, and later as proprietor through transmission, yet Amir Boi was not the registered proprietor of the suit land when the 1st defendant came to be registered as administrator of his estate. It is a fact, as I have demonstrated from the entries above, that Amir Boi was not the registered proprietor of the suit land at the time it was transmitted to the 1st defendant. In fact, the interest of Amir Boi over the suit land had already been determined. It had already been decided that he had sold his interest in the criminal case, Kwale Criminal Case No. 1580 of 1996. It was through deceit and through an abuse of the court process that Amir Boi got himself registered as proprietor following the order of mandamus, but this was set aside, meaning that Amir Boi, was not the registered proprietor of the suit land when it was transmitted to the 1st defendant. It is clear to me that Halima ought not to have been registered as proprietor of the suit land at all. She could only have become registered as proprietor either through some sort of fraudulent collusion with the personnel of the Land registry or through some misrepresentation or mistake. She never should have been registered as proprietor of the suit land as the rightful proprietor all this time was the plaintiff.

12. The line of defence taken by the defendants was to try and attack the original title of the land parcel No. 719 and the first transfer to Mr. Njiiri. In fact the plaintiff’s witness was cross-examined extensively on whether she saw a Land Control Board (LCB) consent to subdivide the Plot No. 677, and the LCB consent to transfer the suit land to Mr. Njiiri. She was also cross-examined at length on the sale agreement and the transfer from Kinondo Investments Limited to the plaintiff company. PW-1 had a letter of application for LCB consent and an application form for registration of a transfer to the plaintiff company. She did not have the documents of transfer to Mr. Njiiri or the transfer from Mr. Njiiri to Kinondo Investments. In her evidence, the 1st defendant inter alia stated that she does not know how the plot No. 677 was subdivided and that her father went to court and the issue was never resolved before he died. She asserted that her father did not sell the land to anybody and that his inquiries brought no answers. DW-2 a former Chief of the area testified that he is not aware of any sale by Amir Boi to Mr. Njiiri. DW-3 a son of Halima, also pressed that the land was grabbed from Amir Boi and that he never subdivided the original land nor sold it. DW-5 the Acting Chief Land Registrar, also testified at length that there is no record of the subdivision of the Plot No. 677, no mutation form and no consent to subdivide. He also claimed that since there is no entry that the original proprietors collected the title deed to the Plot No. 719, the land could not be sold. He questioned the transfers of the Plots No. 718-724 because they were drawn by one B.C Murage who was said to be the Chief Land Registrar asserting that transfers are supposed to be drawn only by advocates. He queried the transfer to Mr. Njiiri and held the opinion that because the subdivision of Plots No. 718-724 was irregular, everything else is irregular.

13. In her submissions, Mrs. Kipsang, learned counsel for the 1st defendant, inter alia submitted that the plaintiff did not produce any sale agreement, any receipt showing payment of the purchase price, any transfer form, Land Control Board (LCB) consent or stamp duty payments for the transaction between herself and Kinondo Investments Limited. She submitted that there is illegality in the title of the plaintiff. She also submitted that Sarah Gordon (PW-1) , did not produce an authority to bind the company or resolution that she can represent the company. She submitted that the plaintiff is not a bona fide purchaser for value without notice of defect in the title. She submitted that the land was fraudulently subdivided from the land parcel No. 677 and pointed to the evidence of the Chief Land Registrar. She relied on the cases of Chemey Investments vs AG, Civil Appeal No. 349 of 2012 (2018)eKLR, Funzi Island Development & 2 Others vs County Council of Kwale, Civil Appeal No. 252 of 2005 (2014)KLR and Henry Muthee Kathurima vs Commissioner of Lands, Civil Appeal No. 8 of 2014 (2015) eKLR. More or less similar submissions were presented by Mr. Nguyo Wachira, learned State Counsel, for the 4th and 5th defendants.

14. The arguments of the defendants and the submissions of counsel on the validity of the title of the plaintiff are completely out of place and hold no water. First, nowhere in the defence is the transfer of the title from Kinondo Investments Limited to the plaintiff company questioned. In addition nowhere is the issue of subdivision of the original Plot No. 677 mentioned in the defence. It is trite law, and I need not cite any authority, that parties are bound by their pleadings. It is an afterthought on the part of the defendants to try and impeach the title of the plaintiff based on these reasons and this is probably upon consideration of how hopeless the assertion of the 1st defendant, that she is properly entitled to the suit land, is. I am not under any obligation to go into the nature of defence, for I have already explained that it is not pleaded, but now that it has been raised, I opt to venture into it, if only to rest any doubts that there may be about the propriety of the plaintiff’s title.

15. The defendants allege that the subdivision of the plot No. 677 was irregular and base that position on the argument that they have not seen the mutation form nor the consent to subdivide. The fact that they have not seen these documents is not proof that they do not exist. Even if these documents will never be found, on my part, I have no doubt that the Plot No. 677 was properly subdivided, but even assuming that the procedure was not strictly followed, one cannot reverse that transaction, because no prejudice was caused to the proprietors at the time, and it is not claimed that the subdivisions do not exist in the Registry Index Map (RIM). Upon subdivision of the Plot No. 677, all the resultant subdivisions were registered in the names of the original three proprietors who jointly held title to all the subdivisions. One would probably be tempted to look into the subdivision of the Plot No. 677 if the resultant titles were registered in the names of other people, but as I have mentioned, all the resultant subdivisions bore the names of the original proprietors. What followed thereafter was that the proprietors decided to sell these subdivisions.

16. Now, it was claimed by the 1st defendant and her witnesses, that there was no such sale. Nothing could be further from the truth. The fact of the sale was affirmed in Kwale Criminal Case No. 1508 of 1986. A court of law already decided that there was a valid sale from the original proprietors, and nobody should try and trash that decision, for it was a solid decision in all respects and nobody appealed the same. It was in fact found that Amir Boi was a lier, a person who could not be believed, a fact proved by his later conduct in filing the suit for mandamus, where he duped the court, only for his ways to be exposed later. Let me not say so much about Amir Boi, for he is deceased, but I cannot avoid saying that he was not one who stood by the truth and was no doubt a barefaced lier.

17. My holding above is nothing new. It is the same holding that was made by the learned trial Magistrate in the Kwale criminal case. It is also the holding that was made by Wambilyanga J, in the mandamus suit. I have in fact seen in the submissions of Mrs. Kipsang, learned counsel for the 1st defendant, another attached decision, being the case of Mbaruk Mohamed & Another vs The Honourable Attorney General & 8 Others, Mombasa High Court, Civil Case No. 966 of 1981, where Githinji J, held as much. Githinji J, in that case, which appears to have been instituted by the persons who disputed the adjudication process, in fact acknowledged that there were produced records of the survey of the Plot No. 719 (the suit land). He had this to state :-

“The three wadigos(Amir Boi and his two co-proprietors)transferred their interest to the 2nd, 3rd, 5th, 6th, 7th, and 8th defendants(8th defendant being Starfish Cottages Limited, the plaintiff herein)who were registered as owners of plots Nos. 720, 722, 721, 723, 724, and 719(the suit land herein)respectively. The copies of Abstract of Register and survey record of Plot 719 were produced as exhibit 8. A copy of Land Certificate of 8th defendant was produced as exhibit 9.

In 1980 the 8th defendant arranged for survey of plot No. 719 and survey was completed on 8. 9.80. On 13. 2.81 Mr. Gordon of 8th defendant camped on the plot and began to clear it and from then the 8th defendant’s servants have been living on the plot.”

18. It will be seen from the above that the court was very satisfied with the manner of survey and creation of the suit land, and its transfer to the plaintiffs, and it is not for the defendants to try and upset that now.

19. The fabrication that the suit land was never sold seems to have permeated into Amir Boi’s descendants, and it is time this matter was put to rest once and for all, for the land was indeed sold by Amir Boi and his partners. The purchaser for the suit land was Mr. Njiiri, who sold his interest to Kinondo Investments Limited who in turn sold the land to the plaintiff. It is pointless for the defendants to argue that the transaction between Kinondo Investments Limited and the plaintiff is lacking some documents and may not have been above board, for this is an argument that only Kinondo Investments Limited are entitled to raise. The 1st defendant’s predecessor, already sold his interest, and the 1st defendant, has no locus to question the transaction between Kinondo Investments Limited and the plaintiff. The only entity entitled to complain is Kinondo Investments Limited, and they clearly have no misgivings. No complaint has been raised since 1981, by Kinondo Investments Limited, close to 40 years to today, since the plaintiff obtained title to the suit land. It is not now upon the defendants to purport to complain on behalf of Kinondo Investments Limited.

20. For the record, there is nothing wrong in the manner in which the plaintiff obtained title and nothing wrong with the title of the plaintiff. It is time that the 1st defendant and other descendants of Amir Boi left the plaintiff to keep and possess her land in peace.

21. It follows that all the authorities supplied to me by counsel for the 1st defendant, which are authorities where titles have been cancelled for having been obtained irregularly, do not apply to this case. There is the small argument that Sharon Gordon did not avail any authority to conduct this suit on behalf of the plaintiff company. I see no substance in this argument. Sharon Gordon testified that she is a director of the plaintiff company and the defendants brought no evidence to the contrary. It is trite law that a director is generally authorized to represent a company unless the contrary is shown as affirmed in the case of Fubeco China Fushun vs Naiposha Company Limited & 11 Others (2014) eKLR. I see no need of saying anything more on that argument.

22. I have found that the 1st defendant could not have obtained title unless she obtained it through fraud, misrepresentation or mistake. On my part, I do not think that the Land Registrar was innocent, for there was a caution placed by Ian Gordon, which was mysteriously removed so that the 1st defendant may be registered as proprietor. Having held that the 1st defendant held no title, it follows that she had no title to pass to the 2nd defendant. The 2nd defendant has tried to shelter under the umbrella of an innocent purchaser for value. This will not help him for the court cannot be a bystander and watch a person losing their property because of the fraud of another.

23. It is my view, that where a person has acquired land from a fraudster who did not have good title in the first place, the innocence or otherwise of the purchaser is immaterial. It is the duty of the court to ensure that the land and title are reinstated to the person rightfully entitled to hold the same. No person should lose his/her land because of the fraud of another.

24. But having said that, I doubt that Dr. Singh can be considered an innocent purchaser for value for he failed to do any or any proper due diligence. In his evidence, he did state that he never looked at the register before entering into the sale transaction. A simple visit to the site would also have revealed to him that the land is developed and that it is the plaintiff’s directors who are in occupation. However, what is important is that the 1st defendant had nothing to sell to the 2nd defendant. Given that the 2nd defendant is tracing his title from a person who held no title in the first place, I do not see how his title can remain unaffected. It must be cancelled and I hereby make orders cancelling his title and all entries that passed title to the 1st defendant and later to the 2nd defendant. Specifically, I make orders cancelling entries numbers  17, 18, 19, 20, 21, 24, and 25.  In essence the Land Registrar to ensure that the register is clear that the proprietor of the suit land is the plaintiff herein.

25. The plaintiff will also have the costs of this case jointly and/or severally against the defendants.

26. For the avoidance of doubt I make the following final orders :-

(i) That it is hereby declared that the rightful proprietor of the land parcel Kwale/Galu Kinondo/719 is Starfish Cottages Limited.

(ii) That it is hereby declared that the title of the 1st defendant was acquired irregularly, unlawfully and unprocedurally, and her title is hereby cancelled and the land register should be rectified to reflect that her title is cancelled.

(iii) That it is hereby declared that the 2nd defendant has no good title to the land parcel Kwale/Galu Kinondo/719 and his title is hereby cancelled and the land register should reflect that his title is so cancelled.

(iv) That the Land Registrar, Kwale, is hereby directed to ensure that entries number  17, 18, 19, 20, 21, 24, and 25 are cancelled from the register pursuant to this judgment.

(v) That an order is hereby issued permanently restraining the 1st and 2nd defendants and/or their servants/agents or other persons claiming through them from entering, being upon, utilizing, or in any other way interfering with the plaintiff’s quiet possession of the land parcel Kwale/Galu Kinondo/719.

(vi) The defendants shall jointly and/or severally bear the costs of this suit.

27. Judgment accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 7TH DAY OF NOVEMBER 2019.

............................

MUNYAO SILA,

JUDGE.

IN THE PRESENCE OF:

Ms. Mwaka holding brief for Mr. Njuguna instructed by M/s Njuguna, Kahari & Kiai Advocates, for the plaintiff.

Mrs Kipsang for the 1st defendant instructed by M/s Christine Kipsang & Company Advocates.

Mrs Kipsang holding brief for Mr Gilbert instructed by M/s George Gilbert & Company Advocates.

Mr Mwandeje holding brief for Mr Wachira Nguyo State Counsel for the 3rd & 4th defendants.

Court assistant; David Koitamet.