Frank Logistics Limited v Golden Lion Real Estate Company & 6 others (Civil Appeal E303 of 2024) [2025] KECA 1471 (KLR) (12 September 2025) (Judgment)
Neutral citation:
[2025] KECA 1471 (KLR)
Republic of Kenya
Civil Appeal E303 of 2024
DK Musinga, J Mohammed & GV Odunga, JJA
September 12, 2025
Between
Frank Logistics Limited
Appellant
and
Golden Lion Real Estate Company
1st Respondent
James Onunga
2nd Respondent
Ashok Kumar Sood
3rd Respondent
Chief Lands Registrar
4th Respondent
Hon Attorney General
5th Respondent
Credit Bank Limited
6th Respondent
Phillips International Limited
7th Respondent
(Being an appeal from the judgment of the Environment and Land Court of Kenya at Nairobi (Mogeni, J.) delivered on 11th April 2024 in ELC Civil Case No. 792 of 2015
Environment & Land Case 792 of 2015
)
Judgment
1.The 1st respondent, Golden Lion Real Estate Company, as the plaintiff in Nairobi ELC Civil Case No. 792 of 2015, by a re- amended plaint dated 11th November 2021, sought the following orders:i.“A permanent injunction be issued restraining the Defendants either by themselves, their servants, workers, agents and/or employees from interfering, developing, trespassing, alienating, auctioning, selling, transferring or in any other manner dealing or disposing of the property known as L.R. No. 1/381 [I.R. No. 20011] otherwise known as the Blacky’z Lounge situated along Argwings Kodhek Road, next to Chaka Place opposite the Priory, Kilimani, Nairobi or any part thereof;ii.A declaration that the purported transfer of title L.R. No. 1/381 [I.R. No. 200711] to Frank Logistics Limited on 9/05/2018 is illegal, null and void.iii.A declaration that the purported charge of title L.R. No. 1/381 [I.R. No. 200711] in favour of the 6th respondent is illegal, null and void.iv.(iv) A mandatory injunction be and is hereby issued compelling the 4th respondent to effect the cancellation of the purported title L.R. No. 1/381 [I.R. No. 200711] that is in the name of the appellant.v.In the alternative, a mandatory injunction be and is hereby issued compelling the appellant to transfer title L.R. No. 1/381 [I.R. No. 200711] known as the Blacky’z Lounge situated along Argwings Kodhek Road, next to Chaka Place opposite the Priory to the 1st respondent.vi.In the event the appellant fails to transfer L.R. No. 1/381 [I.R. No. 200711] known as the Blacky’z Lounge situated along Argwings Kodhek Road next to Chaka Place opposite the Priory to the 1st respondent within sixty (60) days from of the Order of this Court, the Deputy Registrar of the High Court be mandated to execute all necessary documents to effect the transfer of the Property to the 1st respondent.vii.General damages.viii.(vii) Costs of the suit with interest on (ix) at court rates from the date of judgement till payment in full.ix.Any other relief that this Honorable Court deems fit.”
2.At the trial, the suit against the 2nd respondent was withdrawn.The appellant entered appearance and filed a defence dated 20th January 2022 while the 3rd respondent neither entered appearance nor filed a defence. The 4th and 5th respondents entered appearance and filed a defence dated 9th December 2022, while the 6th and 7th respondents entered appearance and filed a defence dated 15th December 2021.
3.The 1st respondent’s case was: that it was the owner of a property known as Land Reference Number 1/835, housing the ‘Blackyz Lounge,’ which it purchased from Propco Limited in 2014; that despite being the registered proprietor, it faced invasion and subsequent claims of ownership by the appellant, leading to legal disputes; that although there were court orders issued restraining the appellant from trespassing onto the said property, the appellant continued to engage in fraudulent activities, including forgery and misrepresentation, to transfer ownership and secure a charge with the 6th respondent; that collusion between the 2nd and 4th respondents further complicated matters, culminating in contempt of court proceedings for unauthorized property transfers and charges.
4.The 1st respondent listed the particulars of fraud on the part of the appellant as follows: forgery or causing to be forged the Certificate of Title Grant Number I.R 67070 over the suit property in an attempt to dispose (dispossess?) the 1st respondent of the suit property; altering and/or misrepresenting the Land Reference Number 1/835 to be identified as L.R. No. 1/381 /I.R No. 200711 while referring to the Blacky’z Lounge situated along Argwings Kodhek Road, next to Chaka Place opposite the Priory, while knowing the existence of a court order barring any dealings on the property; wilfully causing the suit property to be registered in its name as Title Number L.R. No. 1/381 [I.R. No. 200711] while knowing the 1st respondent had absolute ownership of claim therein; altering or misrepresenting Land Reference No. 1/835 to be identified as L.R. No. 1/381 [I.R No. 200711] with intention to secure a charge to a sum of Kshs. 90, 000,000 with the 6th respondent; knowingly misrepresenting its ownership and title to the suit property to the 6th respondent who charged it to secure a sum of Kshs. 90,000,000; and interfering with the 1st respondent's quiet enjoyment and possession of the suit property.
5.The particulars of fraud on the part of the 4th respondent were listed as follows: collusion with the agents of the appellant to alter L.R No. 1/835 situated along Argwings Kodhek Road, Kilimani next to Chaka Place opposite the Priory to L.R No. 1/381 [I. R No. 200711]; collusion with the appellant to register L.R No. 1/381 in favour of the 6th respondent on 9th May 2018; and collusion with the appellant and/or the 6th respondent to register a charge on land L.R. No. 1/381, the Blacky’z Lounge situated along Argwings Kodhek Road, next to Chaka Place opposite the Priory.
6.The 1st respondent also pleaded that the invasion and possession of the suit property was illegal.
7.In support of the 1st respondent’s case, PW1, Tang Jia Rong, adopted his witness statement dated 17th August 2015 and relied on the 1st respondent’s list and bundle of documents dated 4th July 2022 together with a supplementary bundle dated 28th October 2021 as his evidence in chief. He explained: that prior to the 1st respondent purchasing the property from Propco Ltd, his advocates confirmed the title’s authenticity and he believed that the title was legitimate; that when he was evicted from the suit property in August 2014, he reported the incident to the police; that the appellant used a fraudulent title to obtain credit; that the court order was, however, not registered with the Registrar of Lands; and that upon learning of the intended auction from the media, he placed a caution on the suit property.
8.The appellant’s case was: that it was the registered proprietor of L.R. No.1/1381 original number 1/835 and was a stranger to the land Reference Number 1/835 (original 225/5) alluded to by the 1st respondent; that if the 1st respondent paid any money to Propco Limited, then the transaction was not in relation to the appellant’s piece of land and it was only Propco Limited that was answerable or liable to the 1st respondent; that it was a stranger to the alleged invasion and fraud alleged by the 1st respondent; that the property on the 7th respondent’s Notice of 20th September 2021 did not match with the exact physical location of the 1st respondent's property.
9.DWI, Francis Nyaga Njeru, the appellant’s director, adopted his witness statement and relied on the appellant’s list and bundle of documents and contended: that the suit property was in the occupation of the appellant’s tenant and that he was the one who undertook its development; that he was not aware of an injunction issued on 27th January 2017; that there were discrepancies in the dates and documents related to the transfer to the 1st respondent and the change of user application, particularly as regards the timing in relation to the 1st respondent’s claims and the court injunction; that the property was charged to the 6th respondent as a security for a loan; and that the appellant had always been the owner of the suit property since 2014 and its title was acquired after due diligence was conducted.
10.DW2, Edward Shylock Ndege Omwega, also adopted his witness statement as his evidence in chief and stated: that he sold the suit property to the appellant and signed the transfer on 21st January 2015 and further explained the discrepancies in the title grant number and transfer dates, indicating that the transfers to him and the appellant occurred in 2017 and not in 2015; that there were variations and inconsistencies in the documents and dates in the transfer process relied on by the 1st respondent; that there was an agreement with the 3rd respondent, Ashok Kumar Sood; that he was aware of the allegation that the 3rd respondent died on 15th September 2011; and that although the transfer to the appellant was on 2017, the appellant had already acquired the property prior to that date.
11.The 4th and 5th respondents denied the allegations of fraud and collusion made against the 4th respondent. The 6th and 7th respondents also denied the allegations made by the 1st respondent and averred that the 7th respondent was acting as the 6th respondent’s agent. The 6th respondent denied knowledge of the property in question, asserting a distinct property reference and detailing a loan transaction with the appellant. The 6th and 7th respondents rejected allegations of fraud and collusion, emphasizing their due diligence before registering a legal charge over the property. They maintained that the 1st respondent's claims lacked merit and sought to be removed from the suit.
12.DW3, Wainaina Francis Ngaruiya, the 6th respondent’s head of legal, similarly adopted his witness statement and relied on the list of documents filed by the 6th and 7th respondents as his evidence in chief. In his evidence, he contrasted the documents in respect of LR 1/835 with those of LR 1/381 and stated that LR 1/835 was not known to the 6th respondent. According to him, the 6th respondent’s attention was not brought to theexistence of the order in respect of the charged property. In his view, in the absence of a survey report confirming the position of the 1st respondent’s parcel, reliance could only be placed on the evidence from the land registrar’s office as the authority on ownership clarification. A conduct of due diligence by way of post-registration search and ongoing charge registration, he stated, revealed the appellant as the owner.
13.DW4, Charles Kipkurui Ng’etich, the deputy Chief Land Registrar stationed in Kehancha, Migori County, while adopting his witness statement admitted that the records he referred to in his statement were not before the court. He acknowledged that there were discrepancies between the 1st respondent’s property registered under Government Lands Act (GLA) and the appellant’s claim under Registration of Titles Act (RTA). In his evidence, the property was registered under the latter Act and he was not aware of any prior registration under the GLA. He therefore assumed that the appellant’s position was right and confirmed that he was involved in the transfer of the said property to the appellant though he did not see the transferdocument. He admitted that although the documents from the 1st respondent’s bundle indicated sequential numbering, he did not come across them when he carried out his searches, hence had doubts regarding their association with the property. In his evidence, the fact that he never came across the documents relied upon by the 1st respondent suggested that they were not available as at 9th December 2022 but confirmed that the documents in favour of the appellant’s ownership were available.
14.At the conclusion of the trial, the learned Judge identified the issues for determination as: whether the 1st respondent was the proprietor of the suit property; whether the registration of the appellant as the proprietor of the suit property was lawful; whether the 1st respondent was entitled to the prayers sought; and who should bear the costs of the suit.
15.In her judgement, the learned Judge found that the appellant’s title was procured unprocedurally, as there was no conversion of title; that the 1st respondent established and proved that as at 9th May 2018 when the appellant was registered as proprietor of the suit property, the 1st respondent held a valid title to the suit property which was duly registered; that accordingly, the registration of the appellant as its proprietor was unlawfully and irregularly obtained; that in light of the glaring discrepancies, the title held by the appellant was in conflict with the legal regime under which the suit property was held and registered hence, pursuant to section 80 of the Land Registration Act, 2012, the title was ripe for cancellation; that notwithstanding absence of evidence of fraud, without the evidence on how the conversion of titles from one regime to another was done, the issuance of the appellant’s title was un-procedural, illegal, null and void; and that the 1st respondent proved, on a balance of probabilities, that it legally obtained the document of title to the suit property and therefore had proprietary rights in it, was the legal owner and should be allowed to take possession and enjoy it without any interference.
16.It was however found that whereas the 1st respondent sought and prayed for award of general damages, during the trial no evidence was adduced nor any basis laid to support the claim that the 1st respondent suffered any damages. Accordingly, judgment was entered for the 1st respondent as follows: -a.The 1st respondent is hereby declared to be the lawful registered owner of LR No. 1/835 (Original Number 1/225/5).b.An order of permanent injunction is hereby issued restraining the Defendants either by themselves, their servants, workers, agents and/or employees from interfering, developing, trespassing, alienating, auctioning, selling, transferring or in any other manner dealing or disposing of the property known as L.R. No. 1/381 [I.R. No. 20011] otherwise known as the Blacky’z Lounge situated along Argwings Kodhek Road, next to Chaka Place opposite the Priory, Kilimani, Nairobi or any part thereof.c.A declaration is hereby issued that the purported transfer of title L.R. No. 1/381 [I.R. No. 200711] to Frank Logistics Limited on 9/05/2018 is illegal, null and void.d.A declaration is hereby issued that the purported charge of title L.R. No. 1/381 [I.R. No. 200711] in favour of the 6th respondent is illegal, null and void.e.A mandatory injunction is hereby issued compelling the 4th respondent to effect the cancellation of the purported title L.R. No. 1/381 [I.R. No. 200711] that is in the name of the appellant.f.The appellant, their agents and servants are directed to vacate and deliver vacant possession of land parcel L.R. NO. 1/835 (Original Number 1/225/5) to the 1st respondent forthwith failing which eviction to issue on application.g.The 1st respondent shall have the costs of the suit.
17.Aggrieved, the appellant moved to this Court to challenge the decision on some 35 grounds of appeal. As will be apparent from the issues that we have to determine in this appeal, we find it unnecessary to reproduce the same in this judgement. The 6th and 7th Respondents have lodged a Notice of Cross appeal dated 7th May 2024. For the same reason that we have decided not to reproduce the main grounds of appeal, we see no necessity of reproducing the grounds of the cross-appeal.
18.We heard the appeal on the Court’s virtual platform on 20th November 2024 during which learned counsel, Ms Anyango Opiyo, appeared for the appellant, learned Senior Counsel, Mr Nyaoga, appeared with Mr Gabriel Mwangi for the 1st respondent, learned counsel, Mr Omwoma, appeared for the 3rd respondent, while learned counsel, Mr Mugisha, appeared for the 6th and 7th respondents. Learned counsel relied on their submissions which they briefly highlighted.
19.On behalf of the appellant, it was submitted: that, on the authority of Kinyanjui Kamau vs George Kamau Njoroge [2015]eKLR, Vijay Morjaria v Nansingh Madhussingh Darbar & Another [2000] eKLR and Charles Larathe Kiarie & 2 Others vs Administrators of the Estate of John Wallace Mathare (Deceased) & 5 Others [2013] eKLR, both the allegations for fraud and misrepresentation were not proved at the trial, thus the learned Judge erred in law and in fact in failing to find and hold that the appellant had indefeasible title under section 26(1) (a) of the Land Registration Act; that, based on Samuel Kamere v Lands Registrar (2015) eKLR, the 1st respondent failed to demonstrate that its predecessor, Propco Limited, possessed a valid and legal title to the suit property, thus the learned Judge erred in law and in fact in finding the 1st respondent is the bona fide purchaser; that on the basis of the finding in Torino Enterprises Limited v AG (Petition No. E006 of 2022) [2023] KESC 79(KLR), there was an obligation on the 1st respondent to carry out due diligence by looking at the history of the suit property before purchasing it, yet the 1st respondent admitted not having ascertained whether the title was valid and legal; and that, contrary to section 107 of the Evidence Act, there was no proof that the 1st respondent paid Propco Limited a sum of $2,300,000/- for the purchase of the suit property.
20.It was further submitted: that the learned Judge erred in law and in fact in failing to find and hold that the 1st respondent’s purported transfer dated 13th November 2014 was neither an indenture nor a title; that vide the letter dated 4th October 2015 from the Ministry of Lands, Housing and Development, there were no records of conveyance purportedly registered as Volume N112 Folio 136/31 File 11933 at the Government Lands Registry as corroborated by the testimony of DW4; that the transfer dated 13th November 2014 did not bear the EDMS Stamp contrary to section 19(1)(a) and (b) of the Stamp Duty Act; that the 1st respondent did not impeach the appellant’s title by summoning any person from the office of the 4th respondent to controvert DW4’s testimony; that the Court has a duty to uphold the sanctity of the records kept at the lands office as was held in Solomon Omwenga Omache & Another v Zackery O. Ayieko & 2 Others [2016] eKLR; that the 1st respondent did not produce any sale agreement for the purchase of the suit property between itself and Propco Limited in order to demonstrate how it acquired the suit property, thus the learned Judge, in finding that the 1st respondent’s title to be valid, contravened section 38(1) of the Land Act; and that the learned Judge erred in insisting that the appellant needed to prove conversion of the suit property from GLA to RTA, yet at the time of the purchase, the suit property was registered under RTA as confirmed by DW4.
21.In addition, it was contended: that although the charge in favour of the 7th respondent dated 12th February 2019 was legally registered to secure loan facilities, the learned Judge erred in finding and holding that the charge was illegal notwithstanding evidence of compliance with all the statutory conditions under section 56 of the Land Registration Act; that the 7th respondent undertook due diligence which established that the suit property was registered in the name of the appellant; that, on the authority of Equip Agencies Ltd v I & M Bank Ltd (2017) eKLR, the learned Judge did not lay any basis for finding that the charge was illegal; that that the learned Judge erred in holding that the 1st respondent does have a legitimate claim over Land Reference No. 1/1381[I.R No. 200711] when its claim is for LR No. 1/835[Org.225/5] which the appellant has no claim for; that based on the case of Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] eKLR, the 1st respondent did not establish the special circumstances it suffered or suffers to warrant an order for mandatory injunction compelling the 4th respondent to cancel the appellant’s title; that a permanent injunction cannot be issued against it when it had possession of the suit property and was the registered owner, hence the order would be in vain; that the learned Judge erred by issuing an order directing the appellant to vacate and deliver vacant possession of the suit property without considering that the title to the land was with the appellant; that the learned Judge wrongly exercised her discretion to award the costs of the suit to the 1st respondent undeservedly; that the learned Judge manifested bias when she failed to consider the appellant, 3rd, 4th , 5th , 6th and 7th respondents in derogation of the appellant’s rights under Articles 25(c) and 50 of the Constitution, contrary to the decision in R v Chief Immigration Officer (1976) 3 AER 843; that the learned Judge erred by failing to appreciate or reconsider very succinctly legal points, authorities and arrived a decision that was wholly against the weight of the evidence that had been adduced; and that, based on the case of Mary Njoki v John Kinyanjui Mutheru [1985] eKLR, the learned Judge erred by taking into consideration extraneous and irrelevant issues which led to misinterpreting both facts and the law which led to a decision that had no legal basis, and which amounted to a travesty of justice against the appellant.
22.On behalf of the 6th and 7th respondents, it was submitted that although the trial court directed the parties to file and serve their submissions on or before 11th March 2024, the 1st respondent filed its submissions on 6th March 2024 but did not serve them on the 2nd to 7th respondents; that the 6th and 7th respondents only became aware of the 1st respondent’s submissions on 11th March 2024 upon checking the e-filing portal; that the 6th and 7th respondents managed to file their submissions on 13th March 2024; that by filing its submissions close to the deadline, the 1st respondent denied the appellant as well as the 6th and 7th respondents an opportunity to review and respond to its submissions; that by failing to consider the appellant’s submissions or those of the 2nd to 7th respondents and relying on the 1st respondent’s submissions, the trial court condemned the appellants without a hearing before delivering its judgement, thus denying them a fair trial; that the 1st respondent failed to prove that the acquisition of its alleged title was proper by demonstrating the process used in acquiring the title; that the 1st respondent failed to produce before the trial court any instrument for the acquisition of land in the nature of an indenture of conveyance as per the GLA, to which it claimed its title to the suit property; that instead, the 1st respondent only produced a transfer document purporting that it was the title document; that the 1st respondent’s transfer document had no entries on it, nor was it accompanied by all the previous original transfers over the suit property outlining the history of the suit property; that contrary to the decision in Dina Management Limited v County Government of Mombasa & 5 Others [2023] eKLR and Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the 1st respondent did not demonstrate that it had a good root of title over the suit property; that contrary to the stipulations in the Supreme Court Case of Samuel Kamere v Lands Registrar [2015] eKLR, by failing to demonstrate the steps it took before purchasing the suit land, the 1st respondent failed to demonstrate that it carried out due diligence; that despite the appellant proving its good title, the learned Judge erred in finding that the appellant did not have a legitimate title over the suit property; that the root title demonstrated by the appellant was consistent with the records at the lands registry as confirmed by the 4th and 5th respondents; that the 1st respondent failed to prove its allegation that the appellant acquired the suit property fraudulently as held in Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR .
23.The 6th and 7th respondents prayed that the appeal be allowed and the judgement of the trial court be set aside.
24.Although he did not file submissions, Mr Omwoma informed us, on behalf of the 3rd respondent, that he associated himself with the appellant’s position.
25.In opposing the appeal, Mr Mwangi, learned counsel for the 1st respondent, noted the several discrepancies in the documents relied upon by the appellant and submitted: that the transfer to the appellant and several other transactions to the suit property were done after the court had granted the injunction on 27th January 2017.
26.Learned senior counsel, Mr Nyaoga, who led Mr Mwangi for the 1st respondent, described what the appellant was engaged in as “layering”. Mr Nyaoga took the Court to the process of acquisition of land under the GLA and the process that was adopted during the transition period between the repealed Acts and the new Act. It was submitted that in the circumstances of this case, the remedy available to the appellant was to go against those from whom it acquired title since it could not claim that it was a bona fide purchaser without notice of want of title of the person from whom it acquired title.
27.We have considered the record as put to us, the grounds on which the appeal is anchored, the rival submissions and the applicable law. Our mandate on a first appeal as set out in rule 31(1) (a) of the Rules of this Court is to reappraise the evidence and to draw our own conclusions.
28.In the case of Peters v Sunday Post Limited [1958] EA 424, the predecessor of this Court, the Court of Appeal for Eastern Africa, stated that:
29.Having carefully considered the record placed before us, the impugned judgment, the written and oral submissions of learned counsel for the appellant and for the respondents, the cited authorities and the law, we settle the following as the main issues that commend themselves to us for determination, namely: (i) whether the appellant’s and the 1st respondent’s conflicting claims relate to one and the same property; (ii) if the answer is in the affirmative, what constitutes the suit property?; (iii) who as between the appellant and the 1st respondent has established the root of title and has indefeasible proprietary right over the suit property; (iv) whether the learned Judge was correct in allowing the 1st respondent’s claim and dismissing the appellant’s counterclaim; and, (v) finally, what orders ought we to make in determination of the appeal, including orders on costs?
30.The first three issues are inter-related, and we shall therefore determine them together. Our findings thereon shall inform the conclusions we arrive at regarding the last two issues. To determine the question as to who has the right of claim over the suit property, we begin by appreciating the principle enunciated by this Court in its decision in Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR where the Court observed that:
31.This, among other judicial decisions, underscores the sanctity of title to immovable property subject, however, to the provision of Article 40(6) of the Constitution, section 23 of the Registration of Titles Act (now Repealed), and section 26 of the Land Registration Act, 2012. Article 40 of the Constitution reads:1.Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—a.of any description; andb.in any part of Kenya ….c.(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
32.The sanctity of title to property under Article 40 of the Constitution was enunciated in the Supreme Court decision in Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] eKLR, where the Court held that:
33.In this regard, the decisive question that begs our inquiry is whether the appellant’s proprietary interest in the suit property is liable to impeachment pursuant to Article 40(6) of the Constitution in the face of the contention that the suit property was irregularly transitioned from the GLA to RTA.
34.The sequence of events leading to the respondent’s Certificate of title raise pertinent questions that call for answers in light of the test enunciated by this Court in Embakasi Properties Limited & another vs. Commissioner of Lands & another [2019] eKLR, where the Court had this to say on the basis of which title to land may be impeached:
35.Section 26(1) of the Land Registration Act, 2012 affirms the sanctity of title to immovable property and the indefeasibility thereof in the absence of fraud, misrepresentation or other unlawful conduct in its acquisition. The section reads:1.The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—a.On the ground of fraud or misrepresentation to which the person is proved to be a party; orb.Where the certificate of title has been acquired illegally, un- procedurally or through a corrupt scheme. [Emphasis ours]
36.Turning to the question as to whether the appellant’s root of title stands, we refer to the recent case of Dina Management Limited v County Government of Mombasa & 5 others (supra) in which the Supreme Court held that establishing a good root of the title is the first step in establishing whether a party is a bona fide purchaser for value, and had this to say:
37.In the same vein, this Court in Munyu Maina v Hiram Gathiha Maina (supra) held:
38.We must, however, be quick to point out that a registered proprietor of land will not be called upon to prove the root of the title on spurious allegations since the law presumes that the person named as proprietor of the land in a certificate of title is, pursuant to section 26(1) of the Land Registration Act, the prima facie absolute and indefeasible owner thereof. Therefore, in order for the registered proprietor to be called upon to prove the root of title, some evidence must be placed before the court on the basis of which the court can be satisfied that there are reasonable grounds for believing that the title may not have been properly obtained.
39.The respondent’s evidence, as presented by its director, who testified as PW1, Tang Jia Rong, was that it was the registered proprietor of LR No. 1/835 (Original Number 225/5) which it purchased from Pepco Ltd on 13th November 2014. He produced the Conveyance registered as Volume N112 Folio 136/31 File 11933 at the Government Lands Registry, Nairobi. The 1st respondent exhibited certificate of official search for the said property issued on 15th September 2015 which confirmed that as at that date, the property measuring 0.1896 Ha was registered in its name.
40.In his statement, Francis Nyaga Njeri, the appellant’s director, stated that sometime in 2014, the appellant started the process of purchasing LR No. 1/1381 from Edward Shylock Omwega Ndege, which was paid for in instalments until 2015 when it was cleared. From the statement, it appears that the said land was not in the name of Omwega as he had not transferred it into his name and only did so after receipt of the whole purchase price from the appellant. According to Nyaga, before commencing construction, he applied for change of user and notified the public that the land was not available for sale. He stated that before entering into the sale agreement, he conducted due diligence and obtained relevant documents and made the necessary payments.
41.In his evidence before the court, he however stated that:
42.Edward Shylock Omwega Ndege in his statement corroborated Nyaga’s statement that they got into an agreement for sale in 2014, but the transaction was concluded in 2015 through cash payments to his bank accounts. It was his position that the 1st respondent’s title could not be genuine and must have been fraudulently obtained.
43.In court he stated:
44.Charles Kipkurui Ngetich, DW4, the Deputy Chief Land Registrar’s statement, was to the effect that the Grant IR 67070 for a term of 99 years with effect from 1st August 1977 was issued to F. H. Osmond and registered on 20th September 1983; that the property was transferred to Ashok Kumar Sood and registered on 1st April 1994; that property LR No. 1/835 IR 67070/1 was transferred by Ashok Kumar Sood to Edward Shylock Omwega Ndege vide a transfer booked on 2nd March 2017 as IR 67070/3; that vide a transfer dated 21st January 2015, the property was transferred by Edward Shylock Omwega Ndege to Frank Logistics Limited and the transfer was registered on 2nd March 2017; that there was a change of user of the suit property and a lease for parcel LR 1/1381 IR 200711 dated 4th May 2018 was issued and subsequently a Certificate of Title IR 200711 dated 9th May 2018 registered in favour of Frank Logistics Limited; that the suit property was charged to Credit Bank PLC vide Presentation No. 1079 and registered on 13th February 2019; that there were no records in respect of documents of ownership in respect of LR No. 1/835 (original No. 2-5/5) produced by the 1st respondent.
45.Before the court, he testified that:
46.We have taken the liberty to set out in extenso, the evidence as presented by the various witnesses. The public notice of the change of user referred to was in reference to LR No. 1/835 situated in Hurlingham, off Argwings Kodhek Road. The lease agreement entered into between the appellant and one Abaye Tesfu Negussie on 1st July 2016 was in reference to LR No. 1/835 registered on 20th September 1983 as IR 67070/1 measuring 0.1896 more particularly delineated on the Deed Plan No. 104399. It is clear that the particulars of the property tallies with the very property which was confirmed by the certificate of search to belong to the 1st respondent on 15th September 2015. No doubt, therefore, the land being claimed by both the appellant and the 1st respondent was one and the same. We agree with the finding by the learned Judge that:
47.It was clear from the evidence that apart from bare statements in court by DW4, he did not present before the court the records held by the lands registry on which he based his testimony in order to support his evidence. Referred to the documents adduced, particularly the rates clearing certificate, he reluctantly conceded that the property referred to therein was registered under the GLA. No attempt was made by him to explain the circumstances under which the property was later registered under RTA.
48.The learned Judge found, as a fact that:
49.This was a finding of fact and as was appreciated by this Court (Apaloo, JA, as he then was) in Kiruga v Kiruga & Another Nai Civil Appeal No E303 of 2024 Page 36 of 48 [1988] KLR 348:
50.Therefore, as held by Hancox, JA. (as he then was), in Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KLR 661; [1986-1989] EA 183:
51.The 1st respondent contended that it purchased LR No. 1/835 under GLA in 2014 and the transfer of title from Propco Limited to it was registered at the Government Lands Registry at Nairobi as Volume N112 Folio 136/31 File Number 11933. From the said transfer, the form of transfer was adopted from Form F of the RTA which was used in connection with land registered under the GLA (Now Repealed). From the documentary evidence adduced by the 1st respondent, the 1st respondent was registered as the owner of the suit property pursuant to a conveyance dated 13/11/2014 registered as Volume N112 Folio 136/31 File 11933. It was expressly stated that the property being conveyed to the 1st respondent by the said Propco Limited was:
52.The abstract of folio 136/31 of Volume N112 held by the Government Land Registry, Nairobi, which was produced in evidence by the 1st respondent reveals one transaction affecting the suit property. It shows that Presentation No. 2158, Volume N112 Folio 136/31 File 11933 was registered on 21/04/2015 at 13.45hrs. In addition, the 1st respondent produced a certificate of postal search as at 15th September 2015 furnished by the Registrar of Government lands that confirmed that the 1st respondent, Golden Lion Real Estate Company Limited, was the registered proprietor of a fee simple interest in respect of LR No. 1/835 (Orig. No. 1/225/5) and was registered on the register Vol. N112 Folio 136 File 11933, which registration tallied with the registration of the 1st respondent’s conveyance dated 13th November 2014 and the registration of the 1st respondent’s conveyance.
53.Clearly, there was evidence on the record on which the learned Judge could and did find that the 1st respondent was on 21st April 2015 registered as the owner and proprietor of L.R. No. 1/835(Orig. No. 1/225/5). We have no basis for interfering with that finding.
54.The question then is: at what point did the 1st respondent lose its registration? As we have stated, DW4 who ought to have placed before the court the records of the transactions in respect of the suit property failed to do so. The evidence presented on behalf of the appellant was itself suspect and far from satisfactory. Whereas, DW2, Edward Shylock Ndege Omwega, from whom the appellant claimed title stated that he acquired the property in 2015, no transfer was done in his name until 2nd March 2017, the very same day that a transfer was being done from DW2 to the appellant. There were unexplained discrepancies in the documentation relied upon by the appellant in support of its claim to the suit property. These discrepancies were noted by the learned Judge when she held that:
55.Apart from the foregoing, the first page of that title document indicates that the IR No. is 67070 and not 64342 and as correctly noted by the learned Judge, there was no demonstrable connection between the third page of document no. 3 in the appellant’s list of documents and the purported first and second pages of that same document since they related to different properties. That document recorded the transfer of a property described as I.R No. 64342 to Ashok Kumar Sood then to Edward Ndege and finally to the appellant.While the appellant produced a transfer document dated 24th January 2011 between Sood and Edward Shylock Omwega Ndege for title number I.R No. 67070/1, the transfer that was registered on 2nd March 2017 was pursuant to the Registrar’s stamp which indicated that the IR No. was 67070/3. Whereas it was disclosed that Ashok Kumar Sood passed on 15th September 2011 after purportedly selling the suit property to Edward Shylock Omwega Ndege, no explanation was advanced as to why registration of the transfer was done 6 years later, on 2nd March 2017 after the purported transfer and on the same day that Edward Shylock Omwega Ndege transferred his interest in the suit property to the appellant, and why the same property was purportedly valued at Kshs. 70 million and Kshs. 130 million on the same day.
56.It was also clear that the court had issued orders on 27th January 2017 prohibiting any dealings on the land pending the hearing and determination of the suit in the presence of counsel, yet other transactions took place thereafter contrary to lis pendens doctrine. As this Court appreciated in Rose
57.Whereas the appellant was registered as the proprietor of the suit property on 2nd March 2017, curiously, on 7th March 2016, before it became a registered proprietor thereof, it applied for change of user. A registered and practicing planner stamped and signed the application on 13th July 2016, indicating the owner of LR No. 1/835 as the appellant, paving the way for the approval of the change of user on 15th July 2016 and the signing of the approval by the City Planning Department of the Nairobi City County on 16th August 2016. All these transactions took place before the appellant’s transfer was registered and before the appellant was issued with a lease to LR No. 1381 on 7th May 2018 and the subsequent issuance of a certificate of title of Title No. I.R 200711, LR No. 1/1381 (Original Number 1/835) on 9th May 2018.
58.These were, but some of the discrepancies that bedevilled the appellant’s acquisition of the suit property. Importantly, there was no evidence to show that the registration regime was changed from GLA to RTA since no conversion of the legal regime of the suit property to RTA from GLA was established by the 2nd, 4th and 5th Defendants before the trial court.
59.Having considered the evidence on record, we agree with the learned Judge that:
60.Although the learned Judge found that fraud was not proved, section 26(1)(b) of the Land Registration Act also applies where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. While we have no evidence that the appellant’s acquisition of the title was through a corrupt scheme, it is clear to us that the manner in which the 1st respondent’s title was lost was unprocedural and illegal.
61.We find no merit in this appeal.
62.As regards the Notice of Cross-Appeal by the 6th and 7th respondents, they were substantially the grounds relied upon by the appellant in support of the appeal. The only new ground raised therein, which in any case, was in support of the appeal, was that the appellant’s submissions were not considered by the trial court. According to the learned Judge, although the directions on filing of written submissions were given on 12th February 2024, by the time of writing the judgment, only the 1st respondent had filed submissions dated 6th March 2024. On 12th February 2024 the learned Judge directed that:
63.The 6th and 7th respondents complained that the 1st respondent filed the submissions too late in the day and never served them and that they only learnt from the e-filing portal that they had been filed. The 6th and 7th respondents then filed their submissions on 13th March 2024. We appreciate the role played by submissions in drawing the court’s attention to the salient factual and legal issues in a dispute. That role ought not to be underestimated. We do not know when the learned Judge wrote the judgement. In this era of e-filing, we would urge Judges, for the sake of ensuring that justice is done to all parties, particularly where it is evident that a party who ought to have filed his submissions earlier, did so out of time, to countercheck if the other parties did file their submissions before embarking on the preparation of a judgement. It matters not, in those circumstances, if the other parties also filed their submissions out of time since, in those circumstances, the blame lies with the party who ought to have filed and served his submissions first. As this Court held in Trust Bank Limited v Amalo Company Limited [2002] 2 KLR 627; [2003] 1 EA 350, the principle which guides the Court in the administration of justice when adjudicating on any dispute is that where possible, disputes should be heard on their own merit, and errors should not necessarily deter a litigant from the pursuits of his right, and further that the court is obliged to look at the documents on record even though filed out of time unless for a reason other than mere lateness, it considers it undesirable to do so.
64.Having said that, it is the law that submissions are not evidence in a case. Courts do often deliver judgements even where submissions are not filed. A judgement does not cease to be one simply because submissions were not filed or considered. That was the position adopted by this Court in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR where it was held that:
65.In light of our finding hereinabove, we find no merit in the appeal and the cross-appeal, which we dismiss with costs to
DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF SEPTEMBER ,2025D.K .MUSINGA................................PRESIDENTJAMILA MOHAMMED................................JUDGE OF APPEALG. V .ODUNGA................................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR