https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3861

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELC CASE NO. E007 OF 2024** **ARCHDIOCESE OF KISUMU TRUSTEES .............................PLAINTIFF** **VERSUS** **SILAS GWADA ODERO.....................................................DEFENDANT** **JUDGEMENT** 1 The plaintiff commenced this suit against Silas Gwada Odero by way of plaint dated 3/5/2024 where it seeks the following reliefs; - 1. A Declaration that the parcel of land known as SIAYA/NYANDIWA/398 belongs to the Plaintiff herein. 2. A Permanent Injunction against the Defendant/ Respondent, his servants, agents, assignees, representatives or nominees restraining them from entering, trespassing, tilling, using, building, selling or dissipating the parcel of land known as SIAYA/NYANDIWA/398. 3. A Permanent Injunction restraining the Defendant/ Respondent, his is servants, agents, assignees, representatives or nominees from interfering with the peaceful and quiet enjoyment and occupation of the Plaintiff/ Applicant stay on the parcel of land known as SIAYA/NYANDIWA/398. 4. An Order of eviction against the Defendant from the parcel of land known as SIAYA/NYANDIWA/398 and vacant possession of the said parcel of land be delivered to the Plaintiff. 5. The OCS Siaya Police Station to supervise the eviction and the orders issued by this Honourable Court. 6. Mesne Profits from December 2023 until judgement. 7. Costs of the suit. 8. Interest on (f) and (g) above. 2 The plaintiff’s case is that it is the registered owner of Siaya /Nyadiwa/398 (suit property) measuring approximately 2.6 hactares acquired in 1992. That erected thereon is a Catechetical Training Institute used as a training ground for Catechists who work in the Plaintiff's churches. 3 The Plaintiff avers that on or about December 2023, the Defendant together with his family trespassed into the suit property claiming that it belonged to his grandfather. He then went ahead and broke into one of the classes where he settled in and has refused to vacate to date despite formal demand. That the continued occupation of the suit properties by the Defendant has denied the Plaintiff its right of occupation and use. 4 The above is termed as trespass as particularised in paragraph 10 of the plaint. 5 The Defendant entered appearance and filed her Statement of Defence dated the 28/03/2025 where he averred, he is the son of JOAKIM ODERO who was registered in the suit property about 4th April 1984 and the suit property was their ancestral home. That he was born in the suit property where he lived with his family since childhood. 6 The Defendant averred that the suit property SIAYA/NYANDIWA/398 was fraudulently transferred and registered in the name of JOHN OKELO ODONGO on or about 4th August 1992 who later transferred it to the Plaintiff. 7 The Defendant denied paragraph 4. 5 and 6 of the Plaint and avers the Plaintiff took advantage of the Defendants absence including his married siblings and trespassed and occupied the suit property demolishing their home partly. That upon returning home he immediately took possession. 8 The Defendant included a counterclaim, where he added John Odongo Okelo and the Land Registrar Siaya as 1st and 3rd Defendants respectively together with the plaintiff as 2nd Defendant. He alleged that the 2nd (sic 1st Defendant) Defendant in collusion with the 3rd Defendant fraudulently transferred the suit property to his name and subsequently transferred the same to the 2nd Defendant by Registering parcel number SIAYA/NYANDIWA/398 in the name of the 1s Defendant without dully signed transfer forms and the 1st Defendant obtaining title deed without appearing in the Land control Board with the deceased Joakim Odero. 9 The Defendant sought the following reliefs in his Counterclaim: - 1. A declaration that the Counterclaimant’s deceased father is the rightful and bonafide owner of the suit land known as SIAYA/NYANDIWA/398 having been registered in the suit land on 4th April 1984 and whose letters of administration has never been legally obtained in court. 2. A declaration that the registration of the suit parcel in the name of JOHN OKELO ODONGO was acquired fraudulently from the deceased name to the name of JOHN OKELO ODONGO. 3. An order directing the District Land Registrar, Slaya to rectify the Land Register by cancelling the fraudulent and illegal Registration of archdiocese of Kisumu trustees as proprietor of land parcel SIAYA/NYANDIWA/398 and substituting it with JOAKIM ODERO as the registered proprietor. 4. A permanent injunction, eviction and demolition of illegal structures do issue against the 2nd defendant/plaintiff herein their assigns. agents, servants or anyone acting on their behalf/authority from interfering, selling, leasing. planting, developing or interfering in any manner with the quiet possession and peaceful enjoyment of the counter claimant's rights over parcel SIAYA/NYANDIWA/398 5. Costs of this suit 6. Any other relief that the court will deem fit and just to grant. 10 In response the Plaintiff filed a Response to Defence & Counterclaim, dated 30/6/2025 where it reiterated the contents of the Plaint and stated that Joakim Odero ceased to be the registered owner of the suit property upon lawful transfer. It is averred that the plaintiffs have been in open, peaceful and uninterrupted possession of the suit land since the date of acquisition and continues to exercise all rights of ownership thereto. 11 That mere assertion of historical occupation, without legal title or supporting evidence, is insufficient to defeat the Plaintiff's legal interest. The Plaintiff denied all allegations of fraudulent acquisition or transfer of land, that it acquired a valid title after a bona fide purchase for value without notice of any defect. All the rest of allegations were denied. 12 The Plaintiff denied all allegations of fraud against the 2 defendants in the counterclaim and reiterated it was not party to any fraudulent registration. That the transfer of title to the plaintiff was supported by proper documentation, including Land Control Board consent, and due diligence was followed. 13 The Plaintiff averred that even if the Counterclaimant's father was the original owner, the transfer to John Okelo Odongo and subsequently to the Plaintiff occurred over 30 years ago. The Counterclaim is barred by the doctrine of aches and the Limitation of Actions Act Cap 22 Laws of Kenya. 14 The Plaintiff further stated that the Counterclaim discloses no reasonable cause of action and is an abuse of the court process, seeking to dispossess a lawful and registered proprietor. **HEARING AND EVIDENCE** 15 The case was heard viva voce on 29/10/2025 and 20/11/2025. 16 The plaintiff called Fr. **Vincent Ouma Odundo** as PW1. He introduced himself as a catholic priest and trustee of the plaintiff, Vicar General whose duties included assisting the Arch Bishop with administrative issues on safeguarding the church properties and holding custody of the documents. He adopted his witness statement (undated) as his evidence in chief. The contents of the witness statement rehash the averments in the plaint. He produced the documents in the list of documents dated 3/5/2024 & 17/07/2024. 17 PW1 added that they conducted due diligence before purchase and followed all procedure. At the time there was no relationship between the plaintiff and Joachim Odero. That the defendant has never lived on the suit property. The church has continued to use the facility for training of catechists. He asked the court to grant the prayers sought in the plaint. 18 PW1 was cross-examined by Ms. Kokeyo and testified that he had not availed to court the sale agreement between the plaintiff and John Odongo. That the reference to ‘GIFT’ in the LCB consent was not a contradiction since payments were made though he did not have proof of payment. He testified that the church did not inspect the land before purchase but relied on the vendors name Jo in the green card and who was shown as the immediate owner. They were under no obligation to check the previous owner. The land had no structures when the church occupied it. 19 With the above the plaintiff case was closed. 20 DW1 was **Silas Gwada Odero.** He adopted his witness statement dated 28/3/2025 as his evidence in chief. He produced in support of his case the documents in the list dated 28/3/2025. He testified that after his father’s death on 18/4/1991 he left home for the city to look for greener pastures. His sisters got married and the home was deserted. Upon return in the year 2023 he was shocked to find that the home had been demolished leaving only a part of it. That the plaintiff had built several structures. He had nowhere to go and the only option was to shelter in one of the plaintiffs’ structures. That upon investigation he discovered about the registration of John Okello Odongo who then transferred the suit property to the plaintiff. That the said John Okello was unknown to him and his whereabouts untraced. PW1 testified that his father did not sell the land because he lived thereon until his death. The rest of the statement reiterated the particulars of fraud and prayers pleaded in the counterclaim. 21 Upon cross examination by Mr. Marucha DW1 testified that he did not have evidence that Joakim was his father and that he lived on the suit property. that he never filed a claim for trespass. He told the court he did not witness the fraud by the 1st defendant and Land Registrar with regard to the transfer. He had no document signed by his father objecting to the transfer to the 1st defendant. He did not report the fraud on the transfer to Odongo to the DCI. The witness conceded that from 1992 to his return in 2023 the church had been in occupation of the land. 22 DW1 testified that the church allowed him to live in one of the structures because they had demolished his home. He asserted though he had not proved fraud the land belonged to his family. 23 The defence case was closed. **SUBMISSIONS** **Plaintiff’s Submissions** 24 The plaintiff filed submissions are dated 5/12/2025 which identified 4 issues for determination namely Whether the Plaintiff's registered title is protected under the law; Whether the Defendant has discharged the burden of proving fraud, illegality and procedural irregularity to warrant cancellation by the registrar; Whether equitable considerations favor retention of the registered title and Whether the Defendant's claim is time-barred under the law of limitation or doctrine of latches. 25 On the 1st issue it was submitted that Under the provisions of section 26 (1) Registration Act, a proprietor's title is prima facie conclusive evidence of absolute land ownership and the proprietor enjoys statutory protection under the Act. A registered land owner who acquired title procedurally and in good faith ought to enjoy robust protection. 26 It is urged that absence of a formal written sale agreement does not render a transfer void where parties have already fully acted on the transaction and complied with the mandatory requirement of obtaining a Land Control Board consent. Reliance was placed in the case of ***Macharia Mwangi & 87 Others v Davidson Mwangi Kagiri (2014) eKLR*,** whereby, the court upheld the land transaction completed through part performance even in the absence of a perfect or formal sale agreement. The court is enjoined to invoke equity to enforce the transaction. 27 Citing the case of ***Munyu Maina v Hiram Gathiha Maina [2013] KEСA 94 (KLR)*** the plaintiff defended the root of its title by urging that it conducted due diligence where the suit land was free from any encumbrances that had been noted by the registrar. That Plaintiff was a bonafide purchaser for value and they followed due process under the law to have the land registered in their name. 28 On Whether the Defendant has discharged the burden of proving fraud, illegality and procedural irregularity to warrant cancellation by the registrar it was submitted that fraud is a strict allegation which must be specifically pleaded and strictly proved by cogent evidence and not by suspicion or after the event belief. Allegations and suspicion do not suffice. The court was referred to the case of ***Karanja v Kamau & another [2024] KECA 1701 (KLR*),** which cited ***Kinyanjui Kamau -vs- George Kamau [2015] eKLR***, on standard of proof in allegations of fraud. Further the Defendant failed to produce any documentary proof of forged documents, expert or investigative reports, they did not enjoin the alleged fraudulent transferees to the suit. 29 Therefore it is asserted that the threshold for cancellation has not been met and rectification of the register should be declined. 30 On whether equitable considerations favor retention of the registered title it was submitted that the plaintiffs open and continuous ownership without any interference or complaints for decades, gives them a strong equitable basis to maintain the title, and overturning the same to allow the defendants belated and unsubstantiated challenge will not only be unjust but also, contrary to the principles of equity. 31 Citing the provisions of section 7 of the Limitation of Actions Act the court is urged the defendant’s counterclaim is stale having been brought after 30 years and the plaintiffs should be protected from prejudice caused by long delays and loss of evidence. It was submitted that the plaintiffs’ fathers right ceased to exist immediately he transferred the land to John Okelo Odongo. The court is urged to dismiss the defendants claim for want of jurisdiction. Reliance is placed on the case of ***Mwangi & 2 others a Karanja [2024] KEELC 5314 (KLR) and******Gathoni -vs- Kenya Co-operative Creameries Ltd (1982) eKLR****.* **The Defendants’ Submissions** 32 The Defendant raised 4 issues for determination a) Whether the Plaintiff’s title is valid and indefeasible under Section 26 of the Land Registration Act. b) Whether the Defendant’s lifelong occupation constitutes an overriding interest under Section 28 of the Land Registration Act. c) Whether the transfer to the Plaintiff complied with the Law of Succession Act. d) Whether the Plaintiff's claim is defeated by the Defendant’s proof of a superior root of title and the failure of the limitation argument. 33 It is submitted that the plaintiffs claim is anchored on the provisions of section 26 of the Land Registration Act on indefeasibility of title. That for a title to be protected by law, the proprietor must demonstrate that the process of acquisition was transparent and lawful as held in ***Munyu Maina vs. Hiram Gathiha Maina*** *(supra).* That the Plaintiff’s title is fundamentally flawed because it lacks a lawful "root." The suit property was registered in the name of Joakim Odero in 1984. Upon his death, the property vested in his estate. The Plaintiff processed a transfer from John Okelo Odongo who was neither the registered owner nor a legal administrator of the estate. This procedural bypass is a "fraud on the law.". Reliance is placed on ***Alberta Mae Gacii vs. Attorney General & 4 Others*** 34 Referring to the case of ***Lawrence Mukiri vs. Attorney General & 4 Others*** it is further submitted that the plaintiff cannot benefit from the defence of innocent purchaser for the reason that it did not conduct a physical search of the land and had they done so in 1992, they would have encountered the Defendant and his family in actual occupation. It is submitted that the Plaintiff's title is a product of an illegal process and a corrupt scheme designed to disinherit the heirs of Joakim Odero. That such a title is a legal nullity and cannot be saved by the principle of indefeasibility. 35 It is asserted that even if the Plaintiff's title were to be deemed valid on its face, Section 28 of the Land Registration Act provides that all registered land is subject to overriding interests that exist by operation of law, whether or not they are noted on the register. Specifically, Section 28(h) protects the "rights of a person in actual occupation." It was urged that the physical presence of the Defendant his home, agricultural developments, and the ancestral graves of his kin constitutes an overriding interest that encumbers the Plaintiff’s title. Reliance was placed in ***Mbui vs. Mbui (2005) 1EA 256*** 36 It was further submitted thatsince the defendant’s occupation predated the Plaintiff's registration and has remained uninterrupted, his possessory rights as an heir of the original owner (Joakim Odero) bind the Plaintiff. The Plaintiff took the land "as they find it" occupied and burdened by ancestral rights and they cannot now seek to extinguish those rights through a suit for trespass. The court is referred to the case of ***Maweu vs. Liu Ranching & Farming Cooperative Society (1985) eKLR*** 37 The Defendant added that the purported sale of the suit property by John Okelo Odongo in 1992 was a classic case of intermeddling as contemplated under section 45 of the Law of Succession Act. There is no evidence on record to show that the said Odongo was the legal administrator of the estate of Joakim Odero. A person who has not obtained a grant of representation has no legal capacity to deal with the assets of the deceased. The court was referred to ***Re Estate of M’Ngarithi M’Miriti (2017) eKLR*** 38 It is urged that Part performance cures a lack of formality (such as a missing written agreement); it cannot cure a lack of Capacity. That in the Macharia case relied by the plaintiff, the seller was the rightful owner. That in the present case, the seller was a stranger to the estate. Equity (part performance) follows the law; it cannot be used to subvert the mandatory provisions of the Law of Succession Act. 39 Consequently it was submitted that the Plaintiff acquired a "void title" from a person who had nothing to give (nemo dat quod non habet). 40 The Defendant submits that since he has been in actual, continuous, and open possession of the ancestral land since birth, he is not a "claimant" seeking to recover land, but a proprietor in possession defending his deceased father’s title. That where a registration is obtained through a process that is a legal nullity specifically intermeddling under the Law of Succession Act limitation never begins to run. An illegality cannot be "sanitized" by the mere passage of time. Reliance is placed on ***Wambui vs. Mwangi & 3 others******(2021] KECA 144 (KLR)*** 41 The Defendant in rebutting the plea of laches submitted that the Plaintiff, despite having a "paper title" since 1992, allowed the Defendant to remain in peaceful occupation for over three decades. It is the Plaintiff who has slept on its rights to "vacant possession" for 32 yearsand cannot use their own delay as a shield against the Defendant’s rightful claim to his father's estate. 42 The Defendant submitted that his counterclaim for rectification of the register is timely, as it is a defense of his subsisting overriding interest and a challenge to a transaction that was legally dead-on arrival in 1992. **ANALYSIS AND DETERMINATION** 43 I have perused and considered the pleadings, the oral testimonies of the witnesses who testified and the documentary evidence adduced herein. I have equally perused and considered the written submissions and authorities filed herein by the Learned Advocates for the parties. The following issues are for determination; - 1. Whether the Plaintiff has proved to the required standard a case of trespass against the Defendant 2. Whether the Plaintiff is the lawful owner of the suit property 3. Whether the Counterclaim is time barred? If not 4. Whether the Defendant has proved the counterclaim to the required standard to warrant the reliefs sought 5. Whether the plaintiff is entitled to the orders sought 6. Who bears the costs of the suit and the counterclaim? **Whether the Plaintiff has proved to the required standard a case of trespass against the Defendant** 44 The plaintiff’s claim is that it is the registered owner of the suit property having purchased the same from one John Okello Odongo in 1992 and have been in possession since then. However, that the defendant has forcefully trespassed thereon and has refused to vacate the land. The defendant on the other hand claims that the land belonged to his father and wants the title held by the plaintiff cancelled on grounds of fraud and irregularities. 45 It is trite law that he who alleges must prove. This is set out under Section 107(1)(2) of the Evidence Act, which provides as follows: (*1)* ***Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.*** **Whether or not the plaintiff’s entry and presence on the suit land was with the knowledge but without the permission and consent of the defendants as the registered owners.** 46 It was incumbent upon both parties to prove the allegations in their respective suits to the required standard of proof which is on a balance of probabilities except for fraud which is at a slightly higher threshold but not beyond reasonable doubt. 47 The plaintiffs claim against the defendant is substantively a claim for trespass. The legal framework applicable is a set out herebelow; - 48 Section 3(1) of the Trespass Act Cap 294 defines trespass as: ***"Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence."*** 49 Section 152A of the Land Act 2016 states as follows: - ***"A person shall not unlawfully occupy Private, Community or Public Land*."** 50 Clerk & Lindsell on Torts, Sweet & Maxwell, 18th Edition, at page 923, defines trespass to land as follows: - **"*Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another."*** 51 The authors of Salmond on the Law of Trespass Fourteenth Edition at page 67 define trespass thus; - **"*THE wrong of trespass to land (trespass quare clausum fregit) consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining upon such land, or (3) placing or projecting any material object upon it - in each case without lawful justification."*** 52 The authors of **Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition, page 428**, discussed as follows: ***"Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land."*** 53 Arising from the foregoing, three key requirements must be proved by the person pleading trespass namely ownership or possession of the property, absence of permission of the owner of the land or person in possession and continuing to remain therein. 54 PW1 produced a copy of green card dated 13/03/2024. The green card shows that the suit property was transferred to Diocese of Kisumu Trustees (Registered) on 21/9/1992 and a title deed issued on the same day. The green card is certified by the Land Registrar Siaya. Guided by the provisions of section 26 of the Land Registration Act which state 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 owner of thereof. Prima facie this is private land belonging to the plaintiff. 55 The next step would then be to look at the entry of the defendant. PW1 evidence based on the witness statement that he adopted as his evidence in chief is that the defendant forcefully entered into one of the classes that the church had built and settled there together with his family. DW1 evidence based on his witness statement is that upon his return to the suit property in the year 2023 he found that the plaintiff had built several structures on the land and he had nowhere to go. He was left with no option but to take shelter in one of the structures. It is therefore not in dispute that DW2 and his family entered the suit property in 2023 and have continued to live therein. 56 Based on the foregoing it means the plaintiffs entry was forceful and without the permission of the plaintiff who had constructed the structures therein and was in possession. PW1 was clear in his evidence that the church has been running the facility for training catechists. 57 The next question that the court must address is whether the defendant’s entry into the suit land was justifiable? Based on the pleadings the defendant defence seems to be that the defendant simply came back home where he was born and to his father’s Joachim Odero land. That his father never sold the land and challenges the title held by plaintiffs. 58 DW1 produced in evidence certificate of death for Joachim Odero showing he died on 8/4/1991; Limited Grant of Letters of Administration Adlitem for the purpose of prosecuting or defending suit and a green card for Siaya /Nyandiwa/398. Entry No. 1 dated 4/4/84 shows Joachim Odero as the registered proprietor followed by entry No. 2 dated 4/8/92 showing John Okelo Odongo as registered proprietor and title deed was issued on the same date. 59 The green card produced shows that Joachim Odero was registered as proprietor on 4/4/84. A death certificate has been produced indicating Joachim died in 1991. John Okelo Odongo was registered as proprietor on 4/8/1992. 60 The Defendants claim is that the suit property has belonged to his family spanning a period of at least 30 years. DW1 testimony is that he found the church on the suit property which is possession. It is important to note that for purposes of trespass there was no justification for the forceful entry after 30 years. The Defendant ought to have first moved the court for validation of his rights as a beneficiary to his alleged father’s estate. The fact that the land was registered in his father’s name in 1984 and allegedly thereafter registered unprocedurally after his father’s death to John Okello Odongo and then to the plaintiffs herein is no ticket for him to forcefully enter the premises. All the justifications raised were issues that required the courts intervention and determination. Moreover, the entry is personal to him and it is not his father who has been sued as the trespasser in these proceedings. 61 It is therefore the finding of this court the defendant trespassed in the suit property. **Whether the Plaintiff is the lawful owner of the suit property; Whether the Counterclaim is time barred? If no, Whether the Defendant has proved the counterclaim to the required standard to warrant the reliefs sought** 62 The above issues are intertwined will be considered concurrently. The plaintiff seeks a declaration by this court that the suit property belongs to it. However, despite the findings above as to trespass the plaintiffs title to the suit property has been challenged by way of counterclaim. 63 It is trite that a counterclaim is a separate suit. A preliminary issue has been raised by the plaintiff. It is contended that the counterclaim has been filed 30 years after registration of the title in the name of John Odongo Okello. The court has been referred to the provisions of section 7 of the Limitation of Actions Act. 64 Section 7 above provides as follows; - ***“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”*** 65 The Defendants position is that since he has been in actual, continuous, and open possession of the ancestral land since birth, he is not a "claimant" seeking to recover land, but a proprietor in possession defending his deceased father’s title. I will respectfully disagree with this proposition. Why so? There was no evidence before me that DW1 was born, bred and lived in the suit property upto to the time he left for greener pastures. DW1 conceded in cross examination that he had not supplied any proof before court in this regard. He never called the Chief to whom he alleges to have reported the fraud. He also did not call any of his sisters to substantiate this evidence. 66 It was submitted that the plaintiffs’ fathers right ceased to exist immediately he transferred the land to John Okelo Odongo. I will add in this regard that time started running and it cannot be rightly argued that time stopped running where there was an illegality. The suit against the 1st defendant has clearly been brought after the period of 12 years. On this basis the counterclaim would fail. What was the defendant doing for the entire period of 30 years to only emerge after 30 years? This would defeat the very essence of the law of limitation. 67 I’m aware that time only starts running when fraud is discovered but in this case with regards to the plaintiffs title no specific particulars of fraudulent conduct were raised against the plaintiff who is the 2nd defendant in the counterclaim. This is also contrary to the provisions of Order 2 Rule 4 of the Civil Procedure Rules. It is also trite that a party is bound by its pleadings ***David Sironga Ole Tukai Vs Francis Arap Muge*** *and* ***Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR.*** 68 Assuming the court is found to be wrong on the time bar, I will proceed to review the grounds raised in the counterclaim and whether they have been proved. 69 The legal implications as to the registration of a title was aptly summarized in the case *of* ***Rosemary Wanjiru Njiraini v Officer in Charge of Station, Molo Police Station & another [2017] eKLR*** *by Justice Sila Munyao (now JA)* thus; - 17. It has been the law, and it still is the law, that the Certificate of Title issued to a person is prima facie evidence, that the said person holds title to the land noted therein. In the pre-2012 land regime, this was provided for in Section 28 of the Registered Land Act and Section 23 of the Registration of Titles Act which were drawn as follows: - ***RLA S.27.*** *Subject to this Act -* *(a)* ***the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;*** ***(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.*** ***RTA S.23 (1) The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.*** ***(2) A certified copy of any registered instrument, signed by the registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original.*** **18. The current law is in Section 26 of the Land Registration Act, 2012, which provides as follows: -** ***26. (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; or*** ***(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.*** ***(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.*** 70 From the foregoing provisions a title can be impeached on the grounds of fraud, misrepresentation and if acquired illegally, unprocedurally or through a corrupt scheme. 71 The Court of Appeal in ***Vijay Morjaria – Versus - Nansingh, Madhusingh Darbar & another [2000] eKLR*** held that: ***“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”*** 72 The court in **Kinyanjui Kamau – Versus - George Kamau [2015] eKLR** discussing the degree of proof in cases of fraud stated thus: ***“It is trite law that any allegations of fraud must be pleaded and strictly proved. see Ndolo – Versus - Ndolo [2008]1KLR (G & F) 742 wherein the court stated that “.. we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely; proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases...” In case where fraud is alleged it is not enough to simply infer fraud from the facts.*** 73 The burden of proof was on DW1 to prove the allegations of fraud pleaded. John Okello Odongo was named as the 1st defendant in the counterclaim. Among the prayers sought in the counterclaim is ‘a declaration that the registration of the suit property in his name was acquired fraudulently from the deceased. I note that fraud is pleaded at paragraph 14 to the effect that; - ***‘…the 1st defendant in collusion with the 3rd defendant fraudulently transferred the suit property to his name and subsequently transferred the same to the 2nd defendant herein.*** ***PARTICULARS OF FRAUD BY THE 1ST AND 3RD DEFENDANTS*** 1. ***Registering parcel number Siaya/Nyandiwa/398 in the name of the 1st Defendant without dully signed transfer forms*** 2. ***The 1st Defendant obtaining title deed without appearing in the Land Control Board with the deceased Joakim Odero*** 74 From the case law cited fraud cannot be left to guess work. What the court sees DW1 doing is to infer fraud. No evidence was led that the 1st defendant never appeared before the Land Control Board. No evidence was led in this regard. DW1 conceded in cross examination that he never witnessed any fraud. He conceded he had no documents in this regard such as an investigation report. He told the court he never reported the matter to the police but to the chief whom he also did not call as a witness either. In this regard I will rely on the case of **Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] KECA 27 (KLR)** where the Court of Appeal rendered itself thus;- ***87.In our view, a party making a claim for a declaration of title must succeed on the strength of his case and not on the weakness of the defence. We are however cognizant that where the defendant’s case supports that of the plaintiff and contains evidence on which the plaintiff may rely, the plaintiff is entitled to rely on and make use of such evidence. In a claim for declaration of title, as the instant case, the onus is on the Petitioners to satisfy the Court on the evidence produced by them that they are entitled to the declaratory orders sought.’*** 75 It is also noteworthy that the 1st defendant was joined as a party to the counterclaim, the record does not bear any proof that the said defendant was served with summons and the suit papers. There is only one affidavit of service sworn by Juliet Atieno Kokeyo counsel on record for the defendant on 26/6/2025 filed on 27/07/2025 but only in relation to the plaintiff. During cross examination DW1 on being asked about the 1st defendants being the fraudsters he told the court they were not before the court. Further that he did not know the 1st defendant and he would like him to be called by the diocese plaintiff herein. 76 The court notes that no formal application for substituted service was made on behalf of the defendant. As it is the 1st defendant in the counterclaim was not served. It would therefore be unprocedural and unconstitutional to make any finding of fraud or illegality against the 1st defendant. On this basis alone I would make a finding that the particulars of fraud and illegalities against the 1st defendant were not proved. 77 As long as there is no proof of fraud against the registration of the 1st defendant and since this is the root upon which the plaintiffs title stands then these courts hands are tied as there is no basis upon which to make a finding that the Plaintiffs root of title is illegal. I will still emphasise that in a claim for declaration of title, as the instant case, the onus was on the Defendant to satisfy the Court on the evidence produced by them that they are entitled to the declaratory orders sought. They have failed to do so. 78 Based on the above finding the court finds no basis upon which to delve on the other issues raised as to intermeddling and illegalities and declines the invitation to impeach the title. 79 The upshot of the foregoing is that the Defendant has failed to prove his claim in the counterclaim and I therefore find he has no basis upon which to impeach the plaintiffs title. Further that the counterclaim is also time barred. The counterclaim must collapse. 80 Is the Plaintiff entitled to the orders sought in the Plaint? The orders sought by the Plaintiff have been listed at the beginning of this judgement. Having made the above finding the court must uphold the plaintiff’s title. 81 The plaintiff has also sought for orders for permanent injunction coupled with orders of eviction. The court in **Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR** pronounced itself as follows with regard to what constitutes a permanent injunction; - ***“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected”.*** 82 Based on the findings of the court the orders of permanent injunction should issue in view of the fact that the interests of the parties on the suit property have been determined. I have seen the submission that the occupation of the plaintiff on the suit property is an overriding interest. However, I have already made a finding that no evidence has been led of the defendant’s occupation of the suit property prior to the year 2023. The only occupation is from the year 2023 which is not disputed but in respect of which I have made a finding of trespass. 83 The defendant and his family therefore are on the suit property at the mercy of the plaintiff. 84 Among the prayers sought is an order for mesne profits. It is trite that mesne profits are special damages and must therefore be pleaded and proved. These have not been particularised on the plaint neither has it been proved. The prayer shall accordingly be declined. In this regard the court is guided by the holding in **Peter Mwangi Mbuthia & Another vs Samow Edin Osman** (2014(eKLR, the Court of Appeal held as follows: “***As regards the payment of mesne profit, we think the applicant has an arguable appeal. No specific sum was claimed in the Plaint as mesne profit and it appears to us prima facie, that there was no evidence to support the actual figure awarded...”*** 85 In respect of costs of the suit and the counterclaim it is trite that costs follow the event. However, the same are also discretionary. In the circumstances of the case, I would exercise my discretion and order that each party bears the costs of the main suit and counterclaim. 86 The upshot of the foregoing is that the court finds that the plaintiff has proved its claim against the Defendant to the required standard and judgement is entered for the plaintiff against the Defendant in the following terms; - 1. The Counterclaim is hereby dismissed. 2. A Declaration hereby issues that the parcel of land known as SIAYA/NYANDIWA/398 belongs to the Plaintiff **Archdiocese Of Kisumu Trustees.** 3. A Permanent Injunction against the Defendant/ Respondent, his servants, agents, assignees, representatives or nominees restraining them from entering, trespassing, tilling, using, building, selling or dissipating the parcel of land known as SIAYA/NYANDIWA/398. 4. A Permanent Injunction restraining the Defendant/ Respondent, his is servants, agents, assignees, representatives or nominees from interfering with the peaceful and quiet enjoyment and occupation of the Plaintiff/ Applicant stay on the parcel of land known as SIAYA/NYANDIWA/398. 5. An Order of eviction against the Defendant from the parcel of land known as SIAYA/NYANDIWA/398 and vacant possession of the said parcel of land be delivered to the Plaintiff within 90 days of this judgement. 6. For the avoidance of doubt the Defendant will have the above 90 days as grace period to voluntarily vacate and give vacant possession of the suit property to the Plaintiff and in default eviction to issue against the Defendant in line with order (e) above. 7. The parties are at liberty to negotiate hiving off a portion of the suit property to settle the plaintiff and his immediate family on humanitarian basis as the plaintiff may deem it appropriate. 8. The OCS Siaya Police Station to provide security during implementation of the orders in (e) above. 9. The prayer for Mesne Profits is declined. 10. Each party shall bear their own costs of the suit and counterclaim. **Delivered** and **Dated** This **24th Day** of **June 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **24/6/2026** **Judgment delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Ms Marucha for the Plaintiff No appearance for Defendant Court Assistant: Abiud Wekesa