Unmasking Fraud In Land Ownership: An Analysis Of Mas Construction Limited V Sheikh & 6 Others (civil Appeal E789 Of 2023) [2025]

Brief Facts

This case was initiated after the appellant and the 5th respondent forcibly entered the property and took possession of furniture and goods while it was occupied by Abduls’ caretaker on the suit property located along 1st Parklands Avenue, Nairobi. The trial court held in favour of the Abduls, recognizing their ownership of the land and undermining the claims made by the appellant and the other respondents.

The High Court noted the fraudulent actions that the Appellants may have engaged in to acquire their title. Nevertheless, the Court held that the Abduls’ title took precedence over the appellants title which was issued after the Abduls already had their title and further the fraudulent actions that led to its acquisition.

Arguments by the parties

The 1st and 2nd respondents, Abdul Waheed Sheikh and Abdul Hameed Sheikh (the Abduls), claimed that the land was legitimately registered in the name of their deceased father, Sheikh Fazal Ilahi, through a series of legal transactions dating back to 1937.

The appellants on the other hand maintained that they entered into a sale agreement with the 3rd and 4th respondents for the property and complied with all the transfer requirements. They averred that they were only Bonafide purchasers of the property. They further relied on the letter by the Chief Land Registrar which confirmed that they were the owners of that property.

Issues for Determination

1. Who was the legitimate owner of the suit property?

2. Who bears the burden of proof regarding the validity of competing titles to the suit property?

Holding and reasoning of the Court

The court affirmed the decision of the trial court, upheld the validity of the title held by the Abduls declaring that the title held by the appellant and the other respondents was a nullity.

· Burden of proof: Under Section 108 of the Evidence Act, the burden of proof lay with the Abduls to establish their ownership on a balance of probabilities. The court found that they successfully discharged this burden by presenting clear, verifiable documentation that traced their title back to 1937. In contrast, the appellant’s claim was marred by inconsistencies and evidence of fraudulent activity. The court emphasized that the legitimacy of a land title cannot be established merely by possession of a certificate but must be traced back to its historical ownership and legal allocation..

· Precedence in titles: The court reiterated the well-established principle that where there are competing titles, the first validly issued title takes precedence. The evidence demonstrated that the suit property had been lawfully allocated decades earlier and was not available for reallocation when the appellant purportedly acquired it. The court held that no new grant could have been issued over land that had already been lawfully

allocated, reinforcing the principle that a fraudulent or irregularly obtained title cannot override an existing legitimate one.

· Root title: to have a good title, the court emphasized the need of the parties to have comprehensive evidence to support their averments. It explained that mere possessing of a title is not proof of ownership. The Court cited Dina Management Limited v County Government of Mombasa & 5 others affirming that one must go to the root of the title to satisfy oneself as to its validity. Similarly, the court in the Funzi Development Ltd & Others v County Council of Kwale case stated: "…a registered proprietor acquires an absolute and indefeasible title, if and only if the allocation was legal, proper and regular. A court of law cannot give its seal of approval to an illegal or irregularly obtained title."

The court upheld the decision by the trial court that awarded the 1st and 2nd Respondents Kshs. 10,000,000 as damages for trespass.

Conclusion

This decision serves as a reminder that authenticity and historical integrity are the foundation of true title ownership. It reinforces the principle that a title’s legitimacy cannot merely rest on registration but must be backed by a clear and lawful chain of ownership. Furthermore, fraud—regardless of how skilfully concealed—will ultimately be exposed and invalidated under legal scrutiny. The Court, in Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015], affirmed that a rightful owner cannot be deprived of their interest in property by a fraudulent claimant. This position underscores the courts' unwavering stance on protecting genuine ownership rights while preventing land grabbers from taking advantage of loopholes in the system

At CM Advocates LLP, we have experienced legal professionals who specialize in;

Property and Land Law: Ensuring rightful ownership and protecting clients from fraudulent transactions. Litigation & Dispute Resolution: Representing clients in court to safeguard their legal rights such as their right to property.

Title Verification & Due Diligence: Conducting in-depth due diligence to confirm that you get a “clean” title.

By Amy Onderi - aonderi@cmadvocates.com

And

Joan Maina - jmaina@cmadvocates.com