Land registrars, bank to pay litigant Sh7m over fraudulent transaction

Justice Lucas Naikuni. [File, Standard]

Two land registrars who served in Kilifi County are to pay a man Sh7 million over a fraudulent transaction on a piece of land in Mtwapa.

Environment and Land Court Judge Lucas Naikuni said payment of aggravated damages to Hamran Ahmed Salim is to be shouldered by the then Land Registrars MS Chinyaka, SK Gatuiri and Cooperative Bank of Kenya.

They are also to pay the cost he incurred in filing the case.

"I am sending airwaves early enough that these acts of omission and commission of forgery of documents in all public offices and in particular, the Land Registry have to stop once and for all," the judge warned.

The officers are said to have served in the area during a period in which Salim's land measuring 2.84 hectares was used as collateral by a man in Eldoret to secure a Sh6.5 million loan, using a forged title deed.

The judge said it is the mandate of the land registrar to exercise diligence for valuable property.

"It is rather pathetic and disappointing how the third defendant (land registrar Kilifi) conducted himself. He acted without any colour of right, unlawfully and without any regard to the sanctity of the plaintiff's title, intentionally, deliberately, illegally and without due regard to the law proceeding to register a charge over the plaintiff without following the due process of the law while knowing well that the title deed used for registration was a forged title," the judge stated.

He added: "I discern that this was deliberate and was part of the syndicate working in collusion and cohort with the first defendant (bank) and Mr Mage (Ezekiel Besa Mage). I strongly hope that one day the truth will be revealed to set us all free as stated in the Holy Scripture-John 8:32."

Justice Naikuni said the land registrar was negligent in accepting instruments presented to him and registering a charge over Salim's register at the Lands registry.

In the case filed by Salim, he is said to have bought the property from Andrew Katana Mweba in January 2010 and issued a title deed Kilifi/Mtwapa/2258 serial No.717116 that was endorsed on the Green Card. He took possession of the land and started farming on it.

However, on July 23, 2021, he received a call from the bank's representative, who served him with documents when they met in Mombasa.

Salim was shocked to learn that his land was due for auction because it had been used to secure a Sh6.5 million loan by Mage who had defaulted on payments. The loan had accrued interest totalling Sh11.3 million.

"The plaintiff was shocked by the said development as he had not guaranteed any loan using his property and was not aware of a Mr Ezekiel Besa Mage," read the judgment in part.

Convinced that there was fraud, he applied for an official search, whereby he was notified on July 28, 2021, that though he owned the property, there was a charge on it dated July 24, 2015.

He wrote to the land registrar to furnish him with copies of the charge, a document the government institution has not supplied him with to date.

Salim reported the matter to Kilifi Police Station in August 2021 and later received copies of some documents used in the transaction, save for the charge.

In the documents, he discovered a forged title was created to illegally charge his property to secure a loan from the bank.

The forged title deed had serial No.932918, no mention of a sub-division and the signature on the certified copy of the Land Control Board application differed from his.

A forensic examiner, Jacob Oduor, told the court that the signature in the forged documents did not belong to Salim.

Salim then sued the Cooperative Bank of Kenya, Garam Investments Auctioneers and the Registrar of Lands Kilifi.

In the judgment delivered on February 13, 2024, Justice Naikuni dismissed a counter-claim filed by the bank. The court also ordered the bank to pay Salim Sh6 million for general damages and the cost he incurred in the case to be shouldered by the bank, auctioneer and the Land Registry Kilifi.