https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5025

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC. NO. 580 OF 2011** ***(CONSOLIDATED WITH ELC. PETITION 20 OF 2013)*** **BAHARINI DEVELOPMENT LIMITED ……………...……PLAINTIFF** **-VERSUS-** **KENYA AGRICULTURAL RESEARCH INSTITUTE …. 1ST DEFENDANT** **THE REGISTRAR OF TITLES …….………………. 2ND DEFENDANT** **JUDGMENT** 1. **Preliminaries** 2. The Judgment of this Honourable Court pertains to a claim contained in the Plaint dated 28th October 2011, filed by *Baharini Development Limited*, the Plaintiff herein, against *the Kenya Agricultural Research Institute (KARI)*,and later on transformed to the *Kenya Agricultural and Livestock Research Organization (KALRO),* the Registrar of Titles, and other related parties, the Defendants herein. The suit concerns ownership and the alleged unlawful revocation of titles to parcels of land known as LR Nos. MN/III/2947 and MN/III/2948, situate at Mtwapa within the County of Kilifi (Hereinafter referred to as “The Suit Properties”). 3. Upon service of the pleadings and Summons to Enter Appearance, the Defendants duly entered appearance. Subsequently, the Defendants filed the following pleadings:- 4. **1st Defendant filed its Amended Statement of Defence and Counter - Claim dated 14th June, 2012, asserting that the suit properties formed part of public land reserved for agricultural research purposes.** 5. **The 2nd Defendant filed its Statement of Defence dated 20th May 2022, contending that the registration of the Plaintiff’s titles was based on documents presented to the Registrar which were later found to be irregular.** 6. In parallel to the instant suit, the Plaintiff filed Petition No. 20 of 2013 dated 18th March 2013, challenging Gazette Notice No. 15570 of 26th November 2010, which purported to revoke its titles, alleging violation of its constitutional rights under the provision of Articles 40 and 47 of the Constitution of Kenya, 2010. In the course of time, the Petition was consolidated with the present suit for purposes of hearing and determination. 7. Thereafter, the parties filed witness statements, affidavits, lists of documents and supplementary bundles. 8. It is instructive to note that, in the course of the proceedings and upon the request by parties, on 11th October, 2024, the Honorable Court conducted an elaborate Site Visit ***(“Locus in Quo”***) pursuant to the provision of Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010. Eventually, it prepared and shared a report to that effect. The said report forms part of this Judgement for ease of reference hereof. 9. **Description of the parties** 10. The Plaintiff, *Baharini Development Limited*, is a limited liability company duly incorporated under the provisions of the Companies Act (Cap 486, Laws of Kenya), with its registered offices in Nairobi and elsewhere within the Republic of Kenya. 11. The 1st Defendant, *Kenya Agricultural Research Institute (KARI)*, *(KALRO)*, is a public body corporate established under the provision Section 13 of the Science and Technology Act (Cap. 250, Laws of Kenya), and subsequently transformed into “*the Kenya Agricultural and Livestock Research Organization (KALRO)* under the Kenya Agricultural and Livestock Research Act, No. 17 of 2013. The 1st Defendant is sued in its capacity as the institution claiming beneficial interest in the suit properties, alleging that they form part of public land reserved for agricultural research. 12. The 2nd Defendant, The Registrar of Titles, Mombasa, is a public officer charged with the custody, registration, and maintenance of land records under the Registration of Titles Act, Cap. 281, Laws of Kenya) (repealed) and now under the Land Registration Act, No. 3 of 2012. The 2nd Defendant is sued in her official capacity, having issued Gazette Notice No. 15570 dated 26th November, 2010 purporting to revoke the Plaintiff’s titles to the suit properties. 13. **Court directions before the hearing** 14. Upon confirming that the Plaintiff and the Defendants had complied with the provisions of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court directed that the matter be set down for hearing for 3rd October, 2022 where Plaintiff called out its witness. The 1st Defendant called its witness on 19th June, 2023 while the 2nd Defendant called their witness on 28th September, 2023. Thereafter the parties marked their cases closed. 15. **The case by the Plaintiff** 16. From the filed pleadingsin ELC No. 580 of 2011, at all material times relevant to the suit, the Plaintiff was the registered owner of properties L.R. Nos. MN/III/2947 and 2948, having purchased them in July ,2010. Following the registration of the transfers of them to the Plaintiff, it became the registered owner of the suit properties. 17. The Plaintiff paid a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000/=) for the purchase of the said properties and also incurred stamp duty charges thereon. Further it duly obtained the rates clearance and consent to transfer in respect of the transfers of the suit properties. In view of the foregoing, the Plaintiff became the legally and absolute registered owner with all the indefeasible titles, rights and interest to the suit properties. The Plaintiff had been in possession of the suit properties since August 2010 and had employed three caretakers who resided at the properties. The caretakers were named: as one Mr. Duncan Watende, Mr. Safari Said and Mr. Charles Koba. It had been the Plaintiff’s intention to construct on the suit properties. 18. On or about 27th October, 2011, the Plaintiff’s director, Mr. Jatin Patel, received a telephone call from Mr. Watende informing him that some four people had entered into the suit properties accompanied by administration police officers and had identified themselves to Mr. Watende as employees of the Defendant. The said persons informed Mr. Watende that they would return to the suit properties the next day to take possession of the properties and demolish the buildings therein and the perimeter wall, claiming that the properties belonged to the Defendant. 19. The Plaintiff’s aforesaid director immediately contacted his business associate, Mr. Kamal Bhundia, who was based in Mombasa, and requested him to establish what was going on from the police station at Mtwapa. Mr. Kamal proceeded to the police station and was advised by the police officers there that indeed the persons who had visited the suit properties were employees of the Defendant and that they had been accompanied by administration police. The information obtained from the inspector in charge of administration police in Mtwapa was that the Defendant’s employees were supposed to be surveying the area in which the suit properties were situated. 20. The Plaintiff was apprehensive that the Defendant would make good the threat made by its officers who had visited the suit properties, thereby causing the Plaintiff to suffer irreparable damage. The Plaintiff averred that the Defendant, its agents, servants, officers or employees were guilty of trespassing in the Plaintiff’s properties. 21. The Plaintiff relied on the following particulars of trespass:- 22. **Entering into the Plaintiff’s properties without the Plaintiff’s consent or permission;** 23. **Remaining on the Plaintiff’s properties without the Plaintiff’s consent or permission;** 24. **Threatening the Plaintiff’s possession and ownership of its properties;** 25. **Threatening the Plaintiff’s employees at the suit properties** 26. The Plaintiff averred that the Defendant was vicariously liable for the unlawful acts of its agents, servants, officers or employees. There was no justifiable reason for the threats made by the Defendant’s officers. As a measure of abundant caution, the Plaintiff sought the protection of this Honourable Court to prevent a catastrophe as the Plaintiff’s properties would be damaged and destroyed without lawful cause. 27. The Plaintiff lodged a complaint with the police who advised the Plaintiff to seek a court order to enable them to protect the Plaintiff’s rights over the suit property as the Defendant claimed to own all the properties in that area. In view of the foregoing, unless injunction orders were issued against the Defendant, the Plaintiff would have been at the mercy of the Defendant and its unlawful intentions. The Plaintiff stood to suffer irreparably should the said Defendants carry out their threats as aforesaid. 28. The Defendant was interested in this matter as the party violating the Plaintiff’s rights as aforesaid. The Plaintiff averred that there was no other suit pending and there had been no previous proceedings in any court between the Plaintiff and the Defendant over the same subject matter. The cause of action arose in Mombasa within the jurisdiction of this Honourable Court. 29. The Plaintiff prayed for Judgment against the Defendants for Orders that:- 30. ***A temporary injunction to restrain the Defendant whether by itself, its servants, agents or employees from entering into, trespassing, demolishing, destroying, damaging or in any manner whatsoever interfering with properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 and the developments being thereon pending the hearing and determination of this suit.*** 31. ***A permanent injunction to restrain the Defendant whether by itself, its servants, agents or employees from entering into, trespassing, demolishing, destroying, damaging or in any manner whatsoever interfering with properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 and the developments being thereon.*** 32. ***Damages for trespass.*** 33. ***Costs of and incidental to the suit.*** 34. ***Any other relief or remedy that this Honourable Court may deem fit to grant*** 35. From the pleadings in ELC Petition 20 of 2013, the Petitioner’s case was that: 36. **The facts** 37. On or about July, 2010, the Petitioner entered into a sale agreement for the purchase of all those parcels of land known as L. R. No. MN/III/2947 and L.R. No. MN/III/2948 - the suit properties situate N. of Mtwapa Creek in Kilifi District and measuring approximately 1.387 hectares and 1.402 hectares respectively. The Petitioner lodged the transfers of the suit properties for registration and paid all the requisite stamp duty and registration fees thereof. The transfers were registered in favour of the Petitioner and the Petitioner took possession of the suit properties and has been in exclusive possession to date. As evidence of the lawful purchase, the 1st Respondent issued the Petitioner a Grant under the provision of the Registration of Titles Act (repealed) Grant Number C.R. 28310 in respect of L. R. No. MN/III/2947 and a Grant under the provision of the Registration of Titles Act (repealed) Grant Number C.R.31659 in respect of L. R. No. MN/III/2948. 38. The Petitioner had to date paid all the outgoings, namely land rent to the 2nd Respondent for the years since the purchase of the property. The Petitioner had also paid rates to the County Council of Kilifi. The Petitioner purchased the suit properties at a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000/00) and also incurred costs of transfer. The Petitioner was in possession of the suit properties. To date neither of the Respondents had informed the Petitioner of any intention to revoke the Petitioner’s title nor furnished any reason for any such revocation. 39. On or about 27th October, 2011, employees of the Kenya Agricultural Research Institute entered into the Petitioner’s aforesaid parcels of land accompanied by police officers and threatened to take possession of the suit properties and demolish the buildings therein and the perimeter wall constructed thereon by the Petitioner. By consequence of the threats made by the employees of the Kenya Agricultural Research Institute as aforesaid, the Petitioner established that by Gazette Notice Number 15570 published in the Kenya Gazette issue dated 26th November, 2010, the 1st Respondent had caused to be published a **“Notification of Revocation of Land Titles,**” with a list of the parcels of land including the Petitioner’s parcels of land, L.R. No. MN/III/2947 and L.R. No. MN/III/2948. 40. The Kenya Agricultural Research Institute was relying on the aforesaid notice to purport to take possession of the Petitioner’s lands aforesaid. Prior to the advertisement aforesaid, the Respondents had made no effort to communicate the purported revocation of title to the Petitioner at all. The Petitioner’s right to own property had been violated and continued to be violated by the Respondents in that: 41. The Respondents did not have legal power to revoke the Petitioner’s titles whether under the repealed Constitution or the named statutes, that is, the Government Land Act, Cap. 280 (Now repealed) and the Trust Land Act. 42. The purported revocation of the Petitioner’s titles was, in essence, a taking of property without compensation. 43. The Petitioner’s parcels of land were private land which could not be expropriated without payment of compensation. 44. The Respondents made a decision to expropriate the Petitioner’s land without according the Petitioner an opportunity to be heard. The administrative decision was made without giving the Petitioner a right to be heard in defence thereto. 45. The Respondents failed to give reasons for the decision to the Petitioner. 46. The due process of law had not been followed by the Respondents in seeking to revoke the Petitioner’s titles. 47. **Violation of the Constitution** 48. The Petitioner relied on the following violations of the Constitution: 49. The suit property was private land which the Petitioner had purchased, and title thereof had been issued by the Respondents. Issuance of title was a representation which had been acted upon, that the previous owner was entitled to convey a legitimate conveyance of the suit properties to the Petitioner. 50. The Petitioner acted on the representation made by the Respondents and concluded the purchase transaction of the suit properties. 51. The Respondents’ purported revocation of the Petitioner’s title to the suit properties was an arbitrary deprivation of property and expressly debarred by the provision of Article 40 (2) of the Constitution. 52. The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 40 (3)(b) of the Constitution to the extent that no compensation had been offered and/or tendered. 53. The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 47 (1) of the Constitution to the extent that the decision was capricious, vindictive, callous, and actuated by bad faith. 54. The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 47(2) of the Constitution in that no written reasons for the action had been furnished to the Petitioner to date. Absence of written reasons was *ipso facto*evidence of want of good faith. 55. The Petitioner humbly prayed that this Honourable Court do issue orders and declarations that: 56. ***An order of Certiorari do issue to bring to this Honourable Court for the Purposes of being quashed, the 1st Respondent’s gazette notice number 15570 dated 26th November, 2010 purporting to revoke the Petitioner’s titles to all those parcels of land comprised in L. R. No. MN/III/2947 and L.R. No. MN/III/2948.*** 57. ***An order of Prohibition do issue to prohibit the Respondents by themselves, their servants, agents or whomsoever from alienating the Petitioner’s parcel of land comprised in L. R. No. MN/III/2947 and L. R. No. MN/III/2948 or in any manner interfering with the Petitioner's possession of the said properties.*** 58. ***An order of prohibition do issue to prohibit the Respondents by themselves, their servants, agents or whomsoever from in any manner issuing any title and/or license in respect to the Petitioner’s land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948 or registering any encumbrance thereon.*** 59. ***An order of Mandamus do issue to compel the Respondents by themselves, their servants, agents to delete any entry on the Petitioner's titles made as a consequence to or in furtherance of the revocation of the Petitioner’s title to all that parcel of land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948.*** 60. ***An order of Mandamus do issue to compel the Respondents by themselves, their servants, agents to publish in the Kenya Gazette within thirty (30) days from the making of the order hereof, a legal notice cancelling the revocation of the Petitioner's title to all that parcel of land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948.*** 61. ***A declaration that the Respondents’ purported revocation of the Petitioner’s title to L.R. No. MN/III/2947 and L.R. No. MN/III/2948 is unconstitutional, null and void.*** 62. ***A declaration that the Grants issued to the Petitioner in respect to L. R. No.MN/III/2947 and L.R. No. MN/III/2948 is conclusive evidence of ownership and that the Petitioner is the absolute and indefeasible owner of the suit property.*** 63. ***Damages.*** 64. ***Costs of and incidental to this/suit.*** 65. The Plaintiffs called PW - 1 on 3rd October, 2022 at 2.30 pm who testified as follows:- 66. **Examination in Chief of PW - 1 by Mr. Omwenga Advocate.** 67. PW - 1 was sworn and testified in English language. He was called PATRICK IGADWA INZIRA, a citizen of Kenya and holder of the national identity card with all the particulars shown to Court during the hearing of the case. He testified that he worked with the Plaintiff’s Company. PW ‑ 1 filed a witness statement on 20th January, 2021 and also filed a Supplementary Witness Statement on 3rd October, 2022. PW ‑ 1 filed a List of Documents dated 21st December, 2021 together with a Supplementary List of Documents comprising eleven (11) items. They were produced as Plaintiff Exhibit numbers 1 to 11 from the first List of Documents dated 20th January, 2022, namely:- 68. A copy of Clearance Certificate for Plot No. 2947/3/MN. 69. Consent Letter from the Commissioner of Lands dated 22nd June 2010. 70. Transfer for Plot No. 2947/3/MN dated 5th July, 2010. 71. Receipt for payment of duty (page 10). 72. A copy of Title deed. 73. A copy Clearance Certificate for Plot No. 2947/3/MN. 74. Consent Letter from the Commissioner of Lands dated 22nd June 2010. 75. Transfer for Plot No. 2946/3/MN (dated). 76. Receipts of payment. 77. Title deed. 78. Copy of the Kenya Gazette revoking Title No. 14564. 79. The Court admitted the above documents and produced them as Plaintiff’s Exhibit No. 1 to 11. From the Supplementary List of Documents, the Plaintiff further produced Exhibits 12 to 17, save for Item No. 7 of the Supplementary List, as Counsel were not aware of the said suit and the principles of *sub judice* under the provision of Section 6 of the Civil Procedure Act, Cap. 21 applied. In the year 2010, the Plaintiff had purchased the two suit properties from Shirant Investment Limited and Hanover Holdings Limited under duly executed sale agreements. The purchase price had been sum of Kenya Shillings Thirty Million (Kshs. 30,000,000/-) for both parcels. 80. PW - 1 confirmed that due diligence had been undertaken, and thereafter the properties had been duly transferred to the Plaintiff. In 2011, PW - 1 came to learn that the Kenya Agricultural Research Institute (KARI) was claiming ownership of the properties. Prior to the purchase, PW - 1 had never seen any document evidencing KARI’s ownership. PW - 1 later saw a Letter of Allotment issued to KARI dated 16th January, 2012, which had come after the Plaintiff had already acquired the land. Therefore, PW - 1 sought the orders as prayed in the Plaint. 81. **Cross Examination of PW - 1 by Mr. Oluoch Advocate.** 82. PW - 1 had been employed in March, 2009 and was based at the Nairobi Presidential Building. The Plaintiff’s Company was a real estate entity that purchased land, developed properties, and either leased them out or sold them. PW - 1 dealt with only two Directors. He did not know their names unless he referred to them, as he was an employee. PW ‑ 1 did not know the Managing Director. His role was to manage the property and recommend the nature of the property. He drew a salary of a sum of Kenya Shillings Sixty (Kshs. 60,000/-) per month. PW - 1 had authority to testify, although he did not have the written authority with him in court. 83. The two properties had been bought in the year 2010. They were located near Mtwapa. When PW ‑ 1 visited the properties, there were some small fabricated units for workers. PW ‑ 1 did not know who had built the structures and did not know the persons living in them, as they kept on changing. 84. PW - 1 referred to the Defendant’s Bundle of Documents. The vendors of the properties had been private companies. In Baharini Development Limited’s bundle, on page 60, there was a Letter of Allotment for Pineapples Edge Ltd. in respect of LR No. MN/III/2948 Mtwapa dated 9th May, 1995. On page 55, there was a Letter of Allotment for Kisibet Investment Ltd. in respect of LR No. MN/III/2947 Mtwapa dated 9th May, 1995. 85. PW - 1 knew that the two parcels had been offered for sale by Shirland Investment Limited and Hanover Holdings Limited at the same time. He referred to the Affidavit of Patel at page 6(b), which contained a letter dated 15th May, 1992 from the 1st Defendant and noted that in 1995 the Commissioner of Lands had allocated the land. PW - 1 referred to the Letter of Allotment on page 60. On page 33, there was a letter dated 15th May, 1992 by the Commissioner of Lands transferring land from KARI to KMFRI (Mtwapa, Mombasa). To the knowledge of PW - 1, his employer had never undertaken any development on the land. 86. PW - 1 referred to page 73, which contained Case No. 77 of 2008 filed by “***KACC - Versus - Nathaniel Tum and others”***. PW ‑ 1 was not directly involved in the purchase of the property but had prior information that the company was buying the property. His instructions were derived from what the Directors had informed him. On paragraph 10 of the Supplementary Affidavit, PW - 1 stated that the information had been relayed to him, and that the statement had been sworn by the previous witness. PW - 1 was told that they had been given the title deed. Hanover Holdings Limited knew about the history of the land. 87. **Cross Examination of PW - 1 by Ms. Langat Advocate.** 88. PW - 1 had worked for the company from the year 2009. PW - 1 did not know his bosses. As the Property Manager, his role had been to deal with the payment of employees and not the management of the properties. PW - 1 did not know whether the company had paid the rates or not. 89. The structures on the land were permanent. PW ‑ 1 had never conducted any history of the property before coming to court, as he had a patient at the time. By the year 2008, PW - 1 had not yet joined the company that sold them the properties. He therefore would not have known whether there had been any inhibition or restriction order of the year 2018 on the property. PW - 1 confirmed that he knew the property was a beach plot. 90. **Re - Examination of PW - 1 by Mr. Omwenga Advocate.** 91. PW ‑ 1 reported to the team and not directly to the Directors. The Letters of Allotment had been issued in the year 1995. From paragraph 10 of PW‑1’s Supplementary Witness Statement, the Plaintiff had bought the property in the year 2010. Before then, the parcels had been owned by Shirland Investment Limited and Hanover Holdings Limited. There had been no court order arising from Case No. 77 of 2008. 92. **Examination for clarity of PW - 1 by the Court.** 93. PW ‑ 1 stated that there was no information regarding where Shirland Investment Limited and Hanover Holdings Limited had obtained the land from. PW ‑ 1 further indicated that he did not know whether Mr. Nathaniel Tum had been one of the Directors of Baharini Development Limited. 94. On 3rd October, 2022, the Learned Counsel for the Plaintiff Mr. Omwenga on behalf of the Plaintiff marked the closure of its case. 95. **The case of the 1st Defendant.** 96. The 1st Defendant opposed the claim through an Amended Statement of Defence and Counter - Claim dated 14th June, 2012 wherein the 1st Defendant stated that except what was expressly admitted therein, the Defendant denied each and every allegation contained in the Plaint as if the same were set out verbatim and traversed seriatim. The 1st Defendant admitted the descriptive parts of Paragraph 2 of the Plaint save that its address for the purposes of the suit. 97. The 1st Defendant denied the contents of Paragraph 4 of the Plaint as stated and averred that the suit property had been unlawfully and without following procedure excised out of the Defendant’s land without the Defendant’s consent and the purported purchase of the land. The 1st Defendant was a stranger to the contents of paragraph 5. The 1st Defendant denied the contents of paragraph 6 of the Plaint as stated and averred that the Registrar of Titles had revoked the titles issued to the Plaintiff and gazetted the land as the Defendant’s property. 98. The 1st Defendant was a stranger to the contents of Paragraph 7 of the Plaint as stated and stated that the Defendant intended to carry out agricultural and marine research for public good on the said land. The 1st Defendant averred that the suit property was part of a larger parcel of land which had been unlawfully and without the Defendant’s knowledge and/or consent, and by use of force and intimidation of government employees, taken by private individuals, and that the Defendant had made a report to the Commission of Inquiry on the Illegal Allocation of Public Land, commonly known as the Ndung’u Commission. 99. The 1st Defendant further averred that the matter had been reported to and investigated by the Kenya Anti‑Corruption Commission, the culmination of the said investigation being the revocation of the Plaintiff’s titles among others issued on public land in November, 2010. The 1st Defendant, acting on the notice gazetted by the Registrar of Titles and on the advice of the Kenya Anti‑Corruption Commission, started the survey process for purposes of acquiring title. The 1st Defendant further averred that the revocation of title by the Registrar of Titles rendered the Plaintiff’s alleged title null and void. The 1st Defendant denied the contents of Paragraph 11 of the Plaint as stated and averred that it could not have trespassed on its own property. 100. The 1st Defendant denied the contents of Paragraph 12 of the Plaint and put the Plaintiff to strict proof thereof. The 1st Defendant denied the contents of Paragraph 13 of the Plaint and put the Plaintiff to strict proof thereof. The 1st Defendant was a stranger to the contents of paragraph 14. The jurisdiction of this Honourable Court was admitted. 101. For the reasons whereof, the 1st Defendant prayed that the Plaintiff’s claim against it be dismissed with costs. 102. The 1st Defendant stated as follows in the Counter claim:- 103. At all times material to this suit, all that parcel of land known as Land Ref. No. “PLOT NO. W/III/1450 (original)” measuring approximately 13.40 hectares was the property of the Defendant, a public institution which had been in continuous occupation of the said parcel of land either by itself or its predecessors in title since the year 1923 or thereabouts. 104. The Commissioner of Lands purported to sub - divide and allocate and issued grants on the said parcel of Land Reference No. PLOT NO MW/III/1450 (original) into 5 plots namely Land Reference Nos. MN/III/2944 MN/III/2945, MN/III/2946, MN/III/2947, and MN/III/2948 without the knowledge, consent, approval and or acquiesce of the Defendant herein which had possession thereof and was in occupation. 105. The making of the said Grants was illegal, ineffectual, erroneous, and ultra-vires the statutory power of the Commissioner of Lands as Land Reference No. PLOT NO MW/III/1450 (original) was at the material time in possession, occupation and use of the defendant having at all times been and remained reserved to for public research purposes and accordingly was not unalienated piece of land. 106. The 1st Defendant relied on the following particulars of illegality and/ or breach of statutory provisions:- 107. The Plaintiff with full knowledge that Land Reference No. PLOT NO MW/III/1450 (original) was set aside and or reserved for use by the Defendant herein under the Government Lands Act applied for and purported to accept a grant issued under the Registration of Titles Act in respect of Land Reference No. MN/III/2947 and MN/III/2948, portions excised or purportedly excised from the said land; 108. The Plaintiff accepted a grant made under the Registration of Titles Act in respect of Land Reference No. MN/III/2947 and MN/III/2948 while fully aware that the allocating authority had no power to deal with the land; 109. The Defendant had never relinquished its interest in Land Reference No. PLOT NO MW/III/1450 (original) nor had the Defendant’s Board of Management made any resolution to surrender, sell, convey, subdivide or otherwise alienate the said land; 110. Land Reference No Plaintiff had never been brought under the Registration of Titles Act; 111. The Plaintiff purported to deal with the suit land without any or any authority whatsoever; 112. The Plaintiff shut its eye to the fact that the land was alienated public land set aside and or reserved for agricultural research a activities for the public good as there exists on the two parcels of land the subject of this suit two (2) three bedroomed and two (2) two bedroomed permanent houses belonging to the Defendant which the Plaintiff took possession of and had denied the Defendant access thereto and use thereof; 113. Plaintiff knowingly facilitated irregular/illegal transfer of alienated Public Land; 114. The Certificate of Title issued in favour of the Plaintiff never related to any land and was thus a worthless “paper title”; 115. The Registrar of Titles revoked the said grant on 26th November, 2010 vide Gazette Notice No. 15584 dated 26th November, 2010, having realized the illegality of the Grant. 116. Neither the President of the Republic of Kenya then in office nor the Commissioner of Lands had power or authority to allocate the land comprised in Land Reference No: PLOT NO. MW/III/1450 (original), or any part thereof, to the Plaintiff, or any other party. 117. Pursuant to the issuance if the Certificate of Title in respect of Land Reference No. MN/III/2947 and MN/III/2948 the Plaintiff had without any right whatsoever assumed ownership and possession of a portion of land where the coastal Plaintiff’s action amounts to trespass and wrongful assumption of ownership of agriculture Research Centre - Mtwapa had been undertaking research work. The public land and the Defendant prayed for an order to restore its ownership and possession by ejectment there from of the Plaintiff. 118. By reason of the matters aforesaid, Land Reference No. PLOT NO MW/III/1450 belonged and still belongs to Defendant and the acts of the Commissioner of Lands to issue and register a grant in respect of Land Reference No. MN/III/2947 and MN/III/2948 were void ab initio. 119. The 1st Defendant’s claim against the Plaintiff was for a declaration that Land Reference No PLOT NO MW/III/1450 (original) belonged and still belongs to Defendant and the registration of the grant for Land Reference Number No MN/III/2947 and MN/III/2948 in favour of the Plaintiff has not in any way or manner whatsoever derogated from or adversely affected the interest right and/or title of the Defendant in Land Reference PLOT NO MW/III/1450 (original). 120. The 1st Defendant further claimed for an order for delivery up of possession of all that Portions of land now unlawfully occupied by and registered in the name of the Plaintiff and being part of land Reference No PLOT NO MW/III/1450 (original). 121. The 1st Defendant further prayed for an injunction to issue against the Plaintiff restraining it by itself or through its agents or servant or otherwise howsoever from alienating or in any other manner whatsoever dealing with the suit land otherwise than by any way of re-conveyance or surrender to KARI/Government of Kenya. 122. The 1st Defendant prayed that the Plaintiff’s claim against it be dismissed with costs and Judgment be entered in its favour against the Plaintiff for:- 123. ***A declaration the Land Reference PLOT NO MW/III/1450 measuring approximately 13.40 hectares or thereabouts is public land set aside and or reserved for use by the Defendant herein.*** 124. ***A declaration that the issuance and registration of a grant in respect of Land Reference No MN/III/2947 and 2948 in favour of the Plaintiff was and still is legally ineffectual as the same did not have regard to the unavailability of the Land having been set aside and or reserve for public research uses.*** 125. ***A declaration that the Plaintiff has never acquired any title right or interest in or over Land Reference No MN/III/2947 and 2948 or Land Reference No PLOT NO MW/III/1450.*** 126. ***An Order for delivery up of possession.*** 127. ***An Order do issue directing the Plaintiff to immediately deliver to the Registrar of Titles for rectification by cancellation the Grant issued and registered in favour of the Defendant in respect of Land Reference No MN/III/2947 and 2948.*** 128. ***An injunction be and is hereby issued to restrain Plaintiff by itself or through its agents or employees or otherwise howsoever from transferring or disposing of or dealing in any other manner whatsoever with land Reference No PLOT NO MW/III/1450 (original) or MN/III/2947 and MN/III/2948 otherwise than by way of re-conveyance to the Defendant or surrender to the Government of Kenya.*** 129. ***Costs of this suit.*** 130. ***Any other relief this Honourable court may deem fit and just to grant in the circumstance of this suit.*** 131. The 1st Defendant called its first witness on 19th June, 2023 at 11.30 am who testified as follows:- 132. **Examination in chief of DW - 1 by Mr. Oluoch Advocate.** 133. DW - 1 was sworn and testified in English language. He was called FINYANGE NICHODEMUS POLE, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to court during the hearing of the case. He was the Director of KALRO at Mtwapa, having started as a Researcher. He was an Agronomist and held a Master’s degree in Agronomy. KALRO had transformed from KARI. KALRO was established in the year 2013. DW ‑ 1 had filed a Defence and Counter ‑ Claim in this matter. He had filed a Replying Affidavit dated 28th November. 2018 together with annexures, and he adopted the averments therein. He had also prepared a witness statement dated 7th December, 2011, which he adopted as part of his evidence. In addition, DW ‑ 1 had prepared a further statement dated 20th April 2015, which he also adopted. 134. The 1st Defendant had filed a List of Documents, which were produced as Defendant Exhibits numbers 1 to 49. DW ‑ 1 referred to page 118, which was a survey map sub - divided into five plots. The Plaintiff claimed ownership of LR No. MN/III/2947 and LR No. MN/III/2948. These two parcels were indicated on the survey map and shown as parcels claimed by the Plaintiff. 135. DW ‑ 1 had joined KARI in the year 1987 and had been stationed at Mtwapa, Mombasa. The institution operated from the beachfront land, which comprised parcels parcels number 2947, 2948, 2946, and 2944 along the ocean. This was the area that had been issued to them. At the time, they had an administrative block, four staff houses, a library, a laboratory, and a car park. The five sub - divisions measured approximately 30 acres: * The staff house was on parcel 2947. * The laboratory and administration block were on parcel 2945. * The senior house and library were on parcel 2948. 1. DW ‑ 1 last visited the suit property on 14th June, 2023. The library and staff houses were still intact. He saw one person and goats being reared there. He could not gain access as the property was locked. The staff quarters on parcel 2947 were still present but vandalized. Pages 45 to 114 contained photographs of these structures. Page 34 was a letter dated 26th May, 1995 granting authority to incur expenditure for a guest house on LR No. 2948. Page 35 was a letter dated 30th July 1991 by the Centre Director entitled “Valuation and Assessment of Land Buildings and Civil Works.” Its relevance was that it referred to the beachfront buildings. 2. DW‑1 referred to page 44, a letter from M/s. Gatheru Irungu Mugo Limited, Valuers and Land Development Consultants, which mentioned the suit property under general information. Page 47 indicated unsurveyed land, with a portion surrendered to KEMFRI measuring 4 hectares and a net area attributed to KARI of 9.4 hectares. KEMFRI was a state corporation. On page 55, there was a Letter of Allotment dated 9th May, 1995 for LR No. MN/III/2947 Mtwapa, allotted to Kisibet Investment Limited. DW ‑ 1 confirmed that this was one of the parcels claimed by the Defendants. On page 60, there was a Letter of Allotment dated 9th May, 1991 for LR No. MN/III/2948 Mtwapa, allotted to Pineapple Edge Limited. DW‑1 confirmed that this was another parcel claimed by KARI. 3. Both letters of allotment bore the same date, 9th May, 1991, and were signed by S.M. Kagwi for the Commissioner of Lands. To the best of DW‑1’s knowledge, these two Letters of Allotment were never copied to KARI. Before they were issued, KARI had never been consulted. DW ‑ 1 never saw any public notice or advertisement inviting members of the public to apply for alienation of the land. He had not seen any application letter by the allottees, Kisibet Investment Limited and Pineapple Edge Limited. At that time, DW ‑ 1 was stationed at Mtwapa. 4. The staff had been evicted from the suit land in the year 1996. One morning, some Land Rovers arrived with people who asked them to vacate, stating that the suit land had been taken over. They were given two hours to vacate. They obliged, took their files, and left. On page 125, there was a Kenya Gazette Notice dated 26th November, 2010, Notice No. 15570, concerning these parcels. It revoked the titles, and on page 126 it stated that the land was reserved for Kenya Agricultural Research (KARI). The Gazette Notice had been issued by Mr. R.M. Igonga, Registrar of Titles, Mombasa. It concerned five titles: 2944, 2945, 2946, 2947, and 2948 respectively. 5. DW ‑ 1 referred to page 33, a letter dated 15th May, 1992 addressed to the Director of Kenya Marine and Fisheries Research Institute (KeMFRI) from the Commissioner of Lands. The allotments of land had been made in the year 1995 by the same office. 6. **Cross Examination of DW - 1 by M/s. Langat Advocate.** 7. DW ‑ 1 referred to the survey map of the sub - division that had been done and to the valuation carried out on the suit land. At that time, there had been no title existing; it was still unalienated Government land. The valuation had been conducted in the year 1991. Parcel 2944 had been earmarked for occupation by KeMFRI, although KeMFRI was no longer in occupation. DW ‑ 1 stated that he was aware the land was under investigation by the EACC and confirmed that there had been a preservation order issued by the Court. 8. DW ‑ 1 further testified that KARI did not have any ownership documentation in relation to the land. However, some of the structures still remained on parcels 2945, 2947, and 2948, although KARI no longer lived on the land. It moved to different parcel away the suit land. 9. **Cross Examination of DW-1 by Mr. Omwenga Advocate.** 10. DW ‑ 1 confirmed that after the sub - division, KARI did not have Certificate of Title Deeds to the five parcels. KARI did not have any letter from the Commissioner of Lands, that is, there was no formal application had been made to allocate parcels 2947 and 2948 to KARI. DW ‑ 1 stated that there were structures on parcels 2945, 2947, and 2948. He had not produced a Surveyor’s report. He had produced photographs contained at pages 45 to 114, but the person who took them, the date, and the details were not clear, and there was no evidence of where, who, and when they had been taken. 11. DW ‑ 1 testified that the Letters of Allotment had been given to two companies – Kisibet Investment Limited and Pineapple Edge Limited – but KARI had never sued any of these legal entities in their filed Counter ‑ Claim. He was aware that they had been given these letters and subsequently issued with title deeds. The allottees had then sold the parcels to the Plaintiff. 12. DW ‑ 1 emphasized that KARI did not have ownership documents. Title documents had been transferred to KeMFRI. From the year 1992, KARI had never taken any steps as the land was Government land. He referred to page 44, the valuation report, which indicated that the land was unsurveyed and that there was no title deed. After the valuation, KARI had taken some steps as valuers came, and they had asked to be allocated the land, but the request had not been made in writing. 13. DW‑1 referred to the Gazette Notice on page 126 and stated that KARI had complained to KACC about the cancellation of the title deed by the Registrar of Titles, but the complaint had not been in writing. He had nothing to show that parcels 2947 and 2948 had been reserved for KARI. DW‑1 stated that at that moment, he had been told that the parcels were owned by the Plaintiff. He was not aware that the Plaintiff had purchased the parcels. He confirmed that KARI was not in possession of the two parcels. 14. DW ‑ 1 added that KARI was not occupying 600 acres, as one of its parcels was occupied by squatters and there were court cases concerning that land. Those cases were before the court, and a site visit had been scheduled but adjourned. DW ‑ 1 reiterated that he was not aware how the Plaintiff had acquired their titles. 15. **Re - Examination of DW - 1 by Mr. Oluoch Advocate.** 16. DW ‑ 1 referred to the Letters of Allotment on page 55 issued to Kisibet Investment Limited and Pineapple Edge Limited. He stated that he was not aware that they had been joined to the suit by the Plaintiff. DW ‑ 1 emphasized that KARI was a public entity and, as of the year 1995, had been at the beachfront. That was the area they had occupied. The two parcels – LR Nos. 2947 and 2948 – had been part of the land they occupied. The area had been fenced with a perimeter brick wall. 17. DW ‑ 1 referred to page 128, a letter dated 20th January, 2011 from KACC to KARI concerning a complaint on the acquisition of the two parcels, and also to a letter dated 8th October, 2010. He noted that the Plaintiff’s case had been filed in 2011. DW ‑ 1 further referred to the photographs annexed by KACC as part of the court documents. He confirmed that the Letters of Allotment had been made under the Government Land Act, Cap. 280, at the time when the land was allocated to the Plaintiff. 18. The 1st Defendant closed his case through his Counsel Mr. Oluoch Advocate on 19th June, 2023. 19. **The 2nd Defendant’s case** 20. The 2nd Defendant opposed the Plaintiffs’ claim through a Statement of Defence wherein the except what was expressly admitted therein. The 2nd Defendant denied each and every allegation contained in the Plaint as if the same were set out verbatim and traversed seriatim. The 2nd Defendant admitted the descriptive parts of paragraph 2 of the Plaint save that its address for the purposes of the suit. The 2nd Defendant denied the contents of Paragraph 4 of the Plaint as stated and averred that the suit property had been unlawfully and without following procedure excised out of the Defendant’s land without the Defendant’s consent and the purported purchase of the land. 21. The 2nd Defendant was a stranger to the contents of Paragraph 5. The 2nd Defendant denied the contents of paragraph 6 of the Plaint as stated and averred that the Registrar of Titles had revoked the titles issued to the Plaintiff and gazetted the land as the Defendant’s property. The 2nd Defendant was a stranger to the contents of Paragraph 7 of the Plaint as stated and stated that the Defendant intended to carry out agricultural and marine research for public good on the said land. 22. The 2nd Defendant averred that the suit property was part of a larger parcel of land which had been unlawfully and without the Defendant’s knowledge and/or consent, and by use of force and intimidation of government employees, taken by private individuals, and that the Defendant had made a report to the Commission of Inquiry on the Illegal Allocation of Public Land, commonly known as the Ndung’u Commission. 23. The 2nd Defendant further averred that the matter had been reported to and investigated by the Kenya Anti‑Corruption Commission, the culmination of the said investigation being the revocation of the Plaintiff’s titles among others issued on public land in November, 2010. The 2nd Defendant, acting on the notice gazetted by the Registrar of Titles and on the advice of the Kenya Anti‑Corruption Commission, started the survey process for purposes of acquiring title. The 2nd Defendant further averred that the revocation of title by the Registrar of Titles rendered the Plaintiff’s alleged title null and void. The 2nd Defendant denied the contents of Paragraph 11 of the Plaint as stated and averred that it could not have trespassed on its own property. 24. The 2nd Defendant denied the contents of Paragraph 12 of the Plaint and put the Plaintiff to strict proof thereof. The 2nd Defendant denied the contents of Paragraph 13 of the Plaint and put the Plaintiff to strict proof thereof. The 2nd Defendant was a stranger to the contents of paragraph 14. The jurisdiction of this Honourable Court was admitted. 25. The 2nd Defendant prayed that the Plaintiff’s claim against it be dismissed with costs. 26. The 2nd Defendant called its 1st witness who testified as follows: - 27. **Examination in Chief of DW - 2 by Ms. Langat Advocate.** 28. DW - 2 was sworn and testified in English language. She was called MERCY CHEPKEMOI. She told the court that she was an Advocate of the High Court, holding an LLB and LLM from the University of Nairobi. She was serving as the Chief Land Registration Officer at the Mombasa Station. DW ‑ 2 stated that she was conversant with the issues in the matter. She began by producing eleven (11) documents as Defence Exhibits Numbers 50 to 60, as they appeared in the list relating to parcel No. MN/III/1450. That parcel had initially been allocated to Kisibet Investment Limited through a Letter of Allotment dated 9th May, 1995 (Defence Exhibit number 50). Kisibet Investment Limited had ***“informally”*** transferred the title to Shirland Investment Limited on 15th January 1996 through a transfer dated the same day. 29. DW ‑ 2 explained that the transfer was termed “informal” because it had been effected before the Grant or title was issued. After this informal transfer, a Letter of Allotment was prepared in the name of Shirland Investment Limited and forwarded to the Registrar of Titles in Mombasa under a forwarding letter dated 9th May, 1996. DW ‑ 2 produced that letter as a Defence Exhibit. 30. Thereafter, a Grant was prepared in the name of Shirland Investment Limited. DW ‑ 2 testified that she was aware of Gazette Notice No. 15570 dated 26th November, 2010, which revoked the titles for parcels Nos. 2947 and 2948. The titles had been revoked in respect of Shirland Investment Limited and the National Land Commission had prepared fresh Letters of Allotment to KARI. However, before the titles were issued, the decision was declared unconstitutional by the Court through a ruling delivered on 28th February, 2010 by Justice F.T. Tuiyott in the current matter. That ruling had imposed a preservation order for six ( 6 ) months, the effect of which was to restrain any dealings with the parcels. DW ‑ 2 confirmed that the Letter of Allotment to KARI was never been processed due to the court order. 31. From the records, the land had been transferred from Shirland Investment Limited to Baharini Development Limited on 3rd August 2010. Baharini Development Limited had obtained consent to transfer the land from the Commissioner of Lands through a letter dated 22nd June, 2010 (Defence No. Exhibit 55). A valuation for stamp duty had been conducted, and a Valuation Report was issued on 3rd August, 2010 (Defence No. Exhibit 56). A rent clearance certificate dated 25th June, 2010 was also produced (Defence No. Exhibit 57). The transfer to Baharini Development Limited was effected on 3rd August, 2010. 32. DW ‑ 2 testified that at present, the registered owner of Plot No. 2947 was Baharini Development Limited. On 6th May, 2022, a postal search had been conducted, which confirmed Baharini Development Limited as the absolute and registered owner to the suit properties (Defence Exhibit No. 60). DW ‑ 2 further stated that she had since come across the record of Parcel No. 2948. The documents from the parcel file included: 33. Title deed (RTA) CR. 31659 – first registered owner being Hanover Holdings Limited, which later transferred the parcel to Baharini Development Limited on 3rd August, 2010. 34. Valuation Report/Certificate for Stamp Duty dated 3rd August 2010. 35. Rate Clearance Certificate. 36. Consent by the Commissioner of Lands dated 22nd June, 2010 37. As per the search dated 20th September, 2011, the property was indicated as belonging to Baharini Development Limited. DW ‑ 2 produced these documents as a bundle, which were marked as Defence Exhibit No. 61. 38. **Cross Examination of DW - 2 by Mr. Omwenga Advocate.** 39. DW ‑ 2 confirmed that the Plaintiff had not been the original allottee. The Plaintiff had become the owner through transfer. DW ‑ 2 stated that the Letter of Allotment had been made to KARI on 16th January, 2012, and that this had been the first time such a letter was issued. The Letter of Allotment could not be processed due to a court order. DW ‑ 2 testified that she had not been aware who was in occupation of the suit land. She referred to the Gazette Notice dated 26th November, 2010, which had stated that the allocations were illegal and irregular as the parcels had been reserved for public use. The notices had been issued by the Land Registrar of Titles as notifications. 40. DW ‑ 2 confirmed that the title had been registered on 3rd August, 2010. As far as she was concerned, due process had been followed in issuing the plot to the Plaintiff, as evidenced by the transfer, consent, and rate clearance certificate. She explained that before the year 2010, information on public land would have been found at the office of the Commissioner of Lands, but that responsibility now lay with the National Land Commission. 41. DW ‑ 2 referred to the letter dated 22nd June, 2010 signed by Z.A. Mabea, the Commissioner of Lands, which had indicated that the land was available for allocation. At the transfer stage, DW ‑ 2 confirmed that the Plaintiff had complied with the requirements for transfer. 42. **Cross Examination of DW - 2 by Mr. Oluoch Advocate.** 43. DW ‑ 2 referred to Defendant Exhibits No. 31 and 32 at pages 60 to 64, which were in relation to parcels Nos. 2948 and 2947. She stated that she did not have the correspondence file for parcel 2948. Page 60 contained the Letter of Allotment for parcel 2948, while page 55 contained the Letter of Allotment for parcel 2947. The issuance of these documents had been by the Commissioner of Lands under the Registration of Titles Act, Cap. 281 and the Registration of Land Act, Cap. 300. 44. DW ‑ 2 referred to Defendant No. Exhibit 3, which was a Grant (actual title) and Leasehold issued from the Grants. She explained that the Lessor was the Government of Kenya, and the land being granted or leased to the Lessee was Government land. From her experience, she stated that it was fair to say that all public land, unless allocated, remained Government land. 45. DW ‑ 2 testified that before the year 2010, the law that governed public or Government land was under the Commissioner of Lands. She referred to the Gazette Notice at pages 125 to 127, which gave the reason for revocation as unconstitutional and illegal allocation. Parcels 2944, 2945, 2946, 2947, and 2948 had all been reserved for the Kenya Agricultural Research Institute (KARI), a public body. 46. She referred to paragraph 6 of her witness statement, where she had mentioned a court order. DW ‑ 2 clarified that she was not aware that the court had ever made such an order. She explained that she had actually been referring to the ruling of Justice Tuiyott dated 29th February, 2012. On page 9 of that ruling, it stated: ***“The result is that the Defendants are restrained from interfering …”*** This did not refer to revocation of title. DW ‑ 2 admitted that her statement had been an oversight and did not represent the true position of the court order. 47. DW ‑ 2 referred to pages 77 to 116 of the Defendant’s exhibits, which contained the preservation order, specifically at page 115. She also referred to page 116, which showed that the order had been issued on 22nd January 2008. She noted that the title had been issued to Shirland Investment Limited on 10th May 1996 and later to Baharini Development Limited on 3rd August 2010. The order of 22nd January ,2008 had therefore come way before the issuance of the preservation order for Hanover Holdings Limited, which was dated 3rd July, 2010. 48. DW ‑ 2 stated that as Registrar of Titles, she had not been served with any court order relating to the Gazette Notice. The Gazette Notice therefore stood as a notification for revocation. She referred to pages 71 to 72, which contained a letter dated 29th June, 2005 from the Permanent Secretary, E.K. Mwongera, concerning repossession of irregular and illegal allocation of public land. The letter had been addressed to the Permanent Secretary. DW ‑ 2 also referred to page 128, a letter from KACC dated 20th January, 2011, and letters on pages 130 and 124 dated 4th November, 2010. These documents contained recommendations that the land be allocated to KARI. 49. DW ‑ 2 testified that she had not been able to see any approved Development Plan (DP) unless it was contained in the correspondence file. She confirmed that she had never seen any PDP or advertisement inviting members of the public to apply to the Commissioner of Lands for allocation of the public land. Finally, DW ‑ 2 explained that in such instances, the registry did not retain Green Cards; instead, it retained the title and the Deed Plan. 50. **Re - Examination of DW - 2 by Mr. Makuto Advocate.** 51. DW - 2 referred to the Gazette Notice at page 126, specifically the second paragraph, which stated: **“Under the circumstance and view of the public need and interest the Government revokes the said titles.”**. 52. DW - 2 explained that the role of the Registrar had first been to register information. She referred to page 60, which contained the Letter of Allotment for parcel No. 2948. She stated that a Land Reference Number had been issued at the Director of Survey. DW ‑ 2 further referred to Miscellaneous Application No. 27 of 2008 at page 73, which contained the preservation order issued on 22nd January, 2008. That order had been valid until the year specified for the parcels in question. 53. The 2nd Defendant marked its case closed through its counsel on record Mr. Makuto Advocate. 54. **Submissions** 55. After the closure of both the Plaintiffs and the Defendants cases, the Court opined itself that in view of other related cases being ELC PETITION 20 OF 2023 now consolidated and touching on similar issues and subject matter the delivery of Judgment and the parties were directed to canvass the suit by way of written submissions. Pursuant to that after parties confirmed filing of submissions, the Honourable reserved the Judgment date on notice. Eventually, it was delivered on 31st July, 2026. 56. **The Written Submission by the Plaintiff** 57. The Plaintiffs through the Law firm of Messrs. Mogaka Omwenga & Mabeya Advocates filed their written submissions dated 5th May, 2026. Mr. Omwenga Advocate commenced the submissions by stating that these were the written submissions in respect to the Plaint and Petition filed herein by the Plaintiff and Petitioner in both matters. The 1st Defendant was Kenya Agricultural Research Institute and the 2nd Defendant was the Registrar of Titles. The Case against the Commissioner of Lands was withdrawn. The suit herein being “***ELC Case No. 580 of 2011”***was consolidated with *“****MSA ELC Petition No. 20 of 2013”*** and the matters were heard together. The Plaintiff in its Plaint and Petition sought *inter alia* for the orders stated above. 58. On the other hand, the 1st Defendant denied the claim. It filed a Counter - Claim *inter alia* above stated. The Learned Counsel submitted that the Registrar of Titles filed a general defence however they confirmed as per their records the Plaintiff was the registered owner of the suit properties. The three (3) parties each did call one [1] witness each to support their respective Cases. They also produced documents as per their List of Documents filed in the Court. The Court also conducted a comprehensive site visit to the Suit Parcels of land. There were also Surveyors present during the site visit who assisted the Court while conducting the site visit which was done on 11th October, 2024 at 11.30 am. 59. After the hearing of the suits, the Parties were allowed to file their Surveyors’ Reports. The Plaintiff filed theirs on 21st May, 2024 by Patrick Opiyo Adero - the 1st Defendant filed theirs prepared by Boma Surveys. On behalf of the Plaintiff Mr. Patrick Igadwa Inzira did testify and inter alia said:- * He adopted his Witness Statement filed on 3rd October, 2022 and produced his List of Documents as Exhibits No. 1 -18; * The Suit Properties were purchased in the year 2010; prior to the purchase due process was followed, agreement, transfers, payment of stamp duty, registration of the Titles and Titles were duly issued in favour of the Plaintiffs. All the relevant documents were produced to support the entire process; * Following the registration, the 1st Defendant sought to forcefully seize the Suit Properties despite lacking any foundational ownership documents. It was noteworthy that the 1st Defendant only produced a single Letter of Allotment dated 16th January, 2012, which pertained exclusively to LR. No. MN/III/2947. No such document was produced for LR. No. MN/III/2948, yet the 1st Defendant purported to claim both parcels. The Letter of Allotment dated 16th January, 2012 for Land Reference No MN/111/2947 which was given to them AFTER the Plaintiff had acquired the Suit Properties and had filed ELC Case No. 580 of 2011, in which the court had issued Stay Orders on 28th October, 2011. This order specifically restrained the Defendant from demolishing, destroying, or damaging any structures on the Suit Properties LR No. MN/III/2947 and LR No. MN/III/2948. The illegality of the 1st Defendant's position was further cemented by the Ruling and Order of 14th June, 2012, in which this Honourable Court, after hearing the parties, reaffirmed the preservation of the status quo and upheld the sanctity of the Plaintiff's registered interest; * This showed that they had no absolute Title and documents prior to the Plaintiffs Title to support their purported interest to the Suit Properties and in fact were in contempt of court orders hence the Letter of Allotment should be declared Null and Void ab initio. Any reliance on it by the Defendants therefore could not hold. 1. The Learned Counsel averred that the Plaintiff/Petitioner purchase of the suit properties was above board. All relevant steps were undertaken prior to their registration as the owners. From the documents produced it was clear *inter alia* that:- * The 1st Defendant possessed no known interest in the Suit Properties, their claim was a hollow assertion that lacked any foundational root of title. * The 1st Defendant’s Letter of Allotment of 16th January, 2012 for Land Reference Number MN/111/2947 could not be used to prove ownership because it was issued in respect of the Suit Property which had an already existing Title Deeds hence the said Letter of Allotment was a nullity; * The purported revocation of the Plaintiffs Titles was illegal and unlawful. The revoked Titles could not automatically become the 1st Defendant’s. The purported revoked Titles lawfully and legally belonged to the Plaintiff/Petitioner and this Honorable Court should without hesitation grant the Petitioners all the Prayers sought in the Petition because its rights under the provision of Articles 40 (1) (3), 47 (1)(2) of the Constitution had been violated and hence this Honorable Court should not hesitate to so hold. 1. The Letters of Allotment to the initial allottees were legal and lawful hence the purported revocation of the Plaintiff/Petitioner's Title Deed was illegal and unlawful. The 1st Defendant never produced any ownership title deed of LR No. MN/III/1450. There was no evidence produced that LR No. MN/III/1450 ever belonged to the 1st Defendant. From the site visit report, it could be briefly submitted that *inter alia*:- * The Plaintiff's Suit Properties existed and they were fenced with caretakers residing on them. * No documentary evidence was ever produced to confirm that the 1st Defendant occupied or built the alleged structures on the Suit Property. * No documentary evidence was produced to confirm that the 1st Defendant staff used to hold barbeque at the sea front area of the Suit Properties. * The Suit Properties did not have any squatters on the site. 1. The Learned Counsel relied on the pleading and the evidence adduced herein to identify the following issues for this Honourable Court’s determination: * + - 1. **Whether the Plaintiff was the absolute and indefeasible registered owner of the suit properties:-** 2. **The Presumption of Regularity and Root of Title.** 3. **The Plaintiff as a Bona Fide Purchaser for Value Without Notice.** 4. **Allegations of fraud and illegality** * + - 1. **Whether the 1st Defendant is legally estopped from challenging the 1994 subdivision under the Doctrine of Approbate and Reprobate.** 2. **Whether the administrative revocation of the Plaintiff's titles via Gazette Notice No.15570 is a procedural nullity for want of jurisdiction.** 3. **Whether the Defendants' actions constitute a contemptuous affront to the Court and warrant an award of damages for trespass.** 4. **Whether the plaintiff is entitled to an order of permanent injunction to protect its indefeasible title and possession.** 5. **Whether the Plaintiff/Petitioner is entitled to the reliefs sought in the Plaint and Petition.** 5. On whether the Plaintiff is the absolute and indefeasible registered owner of the suit properties. The Learned Counsel contended that considering the Law and the Jurisprudence set through various decisions from the Supreme Court, Court of Appeal and the Trial Courts on how one arrives at the conclusion that a Title and thus ownership was Indefeasible and it was found that it indeed a Title was indefeasible, the protection provided under the Constitution as to sanctity of Title was thus automatically invoked. Thus, they had wish to demonstrate that all the rungs of establishing genuine, indefeasible Title had been met. It should then and must be followed by the quiet enjoyment of property, as enshrined in our Constitution. 6. On the presumption of regularity and root of title. The Learned Counsel submitted that the suit property’s history was anchored in the year 1994 sub - division of LR No. MN/III/1450 via Survey Plan FR 270/7. This was a formal administrative act performed by public officers. Under the Presumption of Regularity, this Court must presume that the sub - division and the subsequent issuance of titles were conducted lawfully and procedurally unless the Defendants provide “something more than a mere balance of probabilities” to rebut that presumption. The Surveyors Reports in respect to the Suit Properties reveal that the 1st Defendant/Respondent never had any known interest in the land. 7. The Report of the Regional Surveyor Coast dated 25th July, 2023, does not at all aver that MN/III/1450 was ever set aside/apart strictly for the 1st Defendant. The Plaintiff's Title Land Reference No. MN/III/2947 and 2948, were as a result of the Sub-division of Land Reference No. MN/III/1450. The Report by Boma Surveys on behalf of the 1st Defendant substantially concurred with the Regional Surveyor that the Suit Properties was owned by the Plaintiff. The Report also agreed that the Suit Properties LR Nos. MN/III/2947 and MN/III/2948 had a boundary wall and were both merged within the said wall. However, the Report alleged that Land Reference No. MN/III/1450 was Government public land reserved for public agricultural purposes. They did not produce any documentary evidence to support that allegation. Hence the averment had no factual basis. The document produced marked as “KLR - 2” was not certified nor did it indicate who drew it. It was just a blank document of no evidential value. They urged the Court to totally ignore the said document. 8. The Learned Counsel submitted that in respect to the Report by Surveyor Patrick Opiyo Adero filed on 21st May, 2024, explicitly rebut the Defendants’ assertions as follows: 9. The parcels MN/III/2947 and MN/III/2948 originated from the sub - division of LR No. MN/III/1450, which was originally unsurveyed Government land until the year 1990. 10. In the year 1994, MN/III/1450 (measuring 13.4 hectares) was sub - divided into five [5] portions (MN/III/2944 - 2948), including an access road, under Survey Plan FR 270/7. 11. LR No. MN/III/2947 was originally allocated to Kisibet Investments Limited and subsequently sold to Shirland Investments Limited. 12. LR. No MN/111/2948 was allocated to Pineapple Edge Limited and subsequently sold to Hanover Holdings Limited. 13. Baharini Developments Limited legally acquired both parcels from Shirland Investments Limited and Hanover Holdings Limited. 14. The surveyor notes that while KARI claimed ownership of MN/III/1450, they have provided no evidence of allotment, allocation, or reservation to prove ownership, they had failed to demonstrate when or how they acquired ownership of the parcel. 15. The records indicated that MN/III/1450 was officially Government Land and no documentation existed to ascertain that it was ever allotted, allocated, or reserved for KALRO or KARI. 16. The report explicitly rebutted findings by Boma Surveys, asserting that the proper procedures for allocation were followed and that the existing maps/plans was legally admissible. 17. The report stated there was no evidence or documentation suggesting the suit properties was Community Land. 18. The Letters of Allotment given to the Plaintiffs’ predecessors for the Suit properties were confirmed by the Land Surveyor to be genuine. 19. The structures currently on the properties were built by the Plaintiff's predecessors, Shirland Investments Limited and Hanover Holdings Limited. 20. While squatters exist in some areas of the original sub - division, the report confirmed there were no squatters on Suit Properties, Land Reference Nos. MN/III/2947 & 2948. 21. The physical boundaries between MN/III/2947 and 2948 were legally defined and depicted on the official Survey Plan FR 270/7. 22. Under cross - examination on 19th June, 2025, the 1st Defendants’ witness, Finyange Pole, admitted that KARI had “not produced a surveyor’s report” to counter these technical findings. 23. According to the Learned Counsel, it was imperative to note that no authenticated survey maps were produced to confirm any specific setting aside a part of the Suit Properties prior to issuance of a solitary Letter of Allotment for the specific usage of the 1st Defendant. The reason for issuance of an illegal letter of allotment to the 1st Defendant during the pendency of this matter is to try and sanitize the 1st Defendant's purported ownership. 24. The Plaintiff's ownership was the culmination of a state-validated process spanning over three decades, during which the State repeatedly affirmed the legitimacy of the alienation from public to private land. Below was a chronological timeline of the alienation process from unalienated Government Land to private ownership; 25. In 1990, the land was surveyed as unalienated Government land designated as LR No.MN/III/1450, measuring approximately 13.42 hectares; 26. On 5th March, 1991, the Director of Surveys confirmed the Survey Plan FR 202/171was computed. LR No. MN/III/1450 remained “un-surveyed government land” only until the formal sub - division approval was granted by the Commissioner of Lands, which transformed its legal status. 27. In the year 1994, the Commissioner of Lands approved the sub - division of LR No. MN/III/1450 into five distinct portions: LR Nos. MN/III/2944, 2945, 2946, 2947 and 2948 respectively. 28. This process was perfected via Survey Plan FR 270/7, a document verified and authenticated by the Government through the Coast Regional Land Surveyor. 29. The Survey of Kenya, via a formal letter (Ref: No. CR/271/Vol.39) dated 8th December, 1994, confirmed the approval of Survey Plan number F/R 270/7 for LR Nos.MN/III/2944-2948. This contemporaneous record proved the state’s recognition of these parcels decades before the current dispute. 30. On 1st May, 1995, the Commissioner of Lands exercising the statutory power to allocate and alienate land, allocated MN/III/2947 to Kisibet Investments Limited and MN/III/2948 to Pineapples Edge Limited. The allottees accepted the offer by way of payments as required, and were issued with Letters of Allotment dated 9th May, 1995. In November, 1995 the Allottees applied to be allowed to transfer the Suit properties to Shirland Investments Limited (for MN/III/2947) and Hanover Holdings Limited (for MN/III/2948). Their request was formally approved by the Commissioner of Lands. 31. Following the formal survey approval (Plan F/R 270/7), Deed Plans for the suit properties were formally authenticated and dated 3rd April, 1996. These Deed Plans provided the definitive technical parameters required for the subsequent issuance of the registered Grants. 32. Subsequently, the Government issued formal titles for these parcels to Shirland Investments Limited (for MN/III/2947) and Hanover Holdings Limited (for MN/III/2948). These grants were issued by the Ministry of Lands, the sole authority mandated to oversee the alienation of such property. 33. A comparative analysis of the Survey Records and ownership documents demonstrate the evidentiary superiority of the Plaintiff's title when weighed against the Defendant’s lack of documentation: 34. The Plaintiff's claim was anchored in Survey Plan FR 270/7, which was a duly authenticated document verified by the Director of Surveys and the Coast Regional Surveyor. This plan provided the definitive technical root for the existence of the suit properties. 35. The Defendant had failed to produce any authenticated Survey Plan or technical root document to support its claim of interest in the land. 36. The Plaintiffs suit properties were identified by clear, registered Deed Plans and formal Registered Grants (Titles) issued by the Ministry of Lands. 37. The Defendant relied on an alleged "reservation" that lacked any accompanying documents confirming the same. There was no gazetted proof of reservation and no title document to rebut the Plaintiff's statutory ownership. In fact the contrary was true; the Ministry of Lands vide its letter dated 15th May, 1992 questioned the 1st Defendants claim to ownership, to which the 1st Defendant did not respond. Quite simply, this was the point at which the 1st Defendant ought to have taken queue and dropped its purported claims to property it had no rights over. 38. The Plaintiff's properties was physically defined and protected, as confirmed by a Court site visit, showing the land was fully fenced with permanent boundary walls and occupied by the Plaintiff's caretakers 39. According to the Learned Counsel, the Defendants’ reliance on the term “un – survey land” was technically and legally incorrect. The land was surveyed and formally alienated through a state-validated process culminating in the issuance of Grant No. CR 28310 and 31659. The Defendants had failed to rebut the Presumption of Regularity of the Plaintiff's Deed Plans and/or the FR’s related to the parcels, which were authenticated by the Director of Surveys under the Survey Act, Cap. 299. In support of the argument that a mere claim of “public land” could not supersede a registered title. To buttress on these legal preposition, they referred the Court to the following authoritative case law:- 40. In the case of:- ***“Portsmouth Holdings Limited – Versus - Kenya Railways Corporation [2025] KEELC 4909 (KLR)”***, the Court dealing with the “Sanctity of Title” – Versus - “Public Land” claims, addressed situations where state corporations attempt to reclaim land by merely labeling it “public” or “reserved” without legal proof of a superior title. The court emphasized that the Land Register is the primary source of truth, and a state entity cannot bypass the Land Registration Act through administrative declarations. ***“A claim by a state corporation that land is 'public' or 'reserved' for its use, in the absence of a superior document of title or clear proof of fraud to which the registered owner was a party, is a*** ***claim built on quicksand. The law does not allow state entities to defeat a registered title by mere assertion; they must strictly prove that the registration was a manifest illegality or that the title was acquired through a corrupt scheme.”*** 1. In the case of:- ***“Wreck Motor Enterprises – Versus – Commissioner of Lands & Others [1997] LLR 553 (CAK)”***, a landmark Court of Appeal decision establishing the “first in time” principle in land law. It reinforces that once a title is registered, it remains valid against the whole world, including the Government, unless a manifest illegality is proven by the person challenging that title. It is the leading authority on the protection of a registered proprietor against collateral attacks by the State or third parties. ***“The court must uphold the registered title unless a manifest illegality is proven by the challenger. The registration of a person as the proprietor of land vests in that person the absolute and indefeasible ownership of that land together with all rights and privileges belonging or appurtenant thereto. The title of the first registered interest in time must prevail unless it is shown to have been obtained through fraud.”*** 1. On whether the Plaintiff was a bona fide purchaser for value without notice. The Learned Counsel argued that in July, 2010, the Plaintiff, Baharini Developments Limited, entered into a legal agreement to purchase both MN/III/2947 and MN/III/2948 from the respective registered owners, for consideration. These transactions were only concluded after official searches at the Land Registry confirmed absolute titles with ‘NIL’ encumbrances. The Plaintiff’s due diligence was further reinforced by a deliberate review of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (The Ndungu Report, 2004). It was a matter of public record that the Suit Properties were never featured in the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land. Despite this being the primary vehicle for state agencies to reclaim land, KARI never presented a claim for these parcels. 2. In addition, upon the inception of the National Land Commission (NLC), KARI failed to utilize the statutory window to register their claims or seek regularization of public land under threat. As the Suit Properties were beach plots, the Plaintiff, as part of its due diligence, ensured that it obtained the mandatory Presidential Consent through the Commissioner of Lands on 22nd June, 2010, further validating the legality of the transaction as well the legality of the Titles. All statutory obligations were met, including the payment of land rent, rates, and all relevant transfer taxes, including stamp duty. Following the establishment of beacons and the formal handover of occupation by the vendors to the Plaintiff, the Plaintiff was duly registered as the absolute owner of the Suit Properties on 3rd August, 2010. 3. According to the Learned Counsel, the Plaintiff was thus a Bona Fide Purchaser for Value without Notice, a status that provides a “Safe Harbour” under Kenyan law against any alleged historical irregularities. Under the Torrens System of registration, a purchaser is entitled to rely on the register and is not required to “go behind” the title to investigate the year 1994 administrative process. As held in ***“Lawrence P. Mukiri Mungai – Versus - Attorney General”***, the State guarantees the integrity of the register. Even if the original sub - division of LR No. MN/III/1450 contained procedural defects, such flaws could not be visited upon an innocent purchaser who paid market value and relied on clear Government records. Consequently, the Plaintiff's title was indefeasible and protected from any unregistered claims held by KARI. 4. Official searches at the Land Registry confirmed that the titles were “NIL” encumbered as of January 30, 2026, further affirming the Plaintiff's status as the Bona Fide Purchaser. The Learned Counsel further submitted that the Defendants may invite the Court to “look behind the title”. However, the Plaintiffs Root of Title was not a mere paper grant but a multi-stage administrative process involving the formal Allotment, approval and authentication of Survey Plan FR 270/7, preparation of Deed Plans, subsequent Registration of the Grants and The Presidential Consent to Transfer in June 22, 2010, representing the highest level of state validation. 5. The Plaintiff's case was decisively supported by the sworn testimony the Land Registrar (Samuel Kariuki Mwangi). These statements constitute Judicial Admissions under the provision of Section 17 and 58 of the Evidence Act, Cap. 80 which dispense with the need for further proof of these facts. In his formal testimony, the Registrar admitted:- 6. “THAT currently the suit properties was still registered in the name of the Plaintiff herein." This invokes the provision of Section 26 of the Land Registration Act, No. 3 of 2012 making the Plaintiffs title” Conclusive evidence of proprietorship.” 7. The Registrar admitted that while Gazette Notice No. 15570 attempted a revocation, such administrative acts were later declared a nullity. This confirmed the Plaintiff’s title remained undisturbed by Law. 8. The Learned Counsel submitted that further to that the 1st Defendant’s primary witness, Mr. Finyange Pole (1st Defendant - DW – 1), made several critical admissions under cross - examination on June 19, 2025, which effectively extinguish any claim of competing ownership:- 9. ***I do confirm ……* *KARI does not have any ownership in relation to the land... we did not have ownership title documents to transfer to KEMFRI.”*** 10. ***“KARI does not have any communication letter from the Commissioner of Lands... We asked to be allocated only that the request was not in writing.”*** 11. As held in the case of:- ***“Ratilal Ghela Shah – Versus - Darius Mwiti Kirimi (Mombasa ELC 177 of 2017)”***, a legal interest in land could only exist after meeting the conditions of a Letter of Allotment and the subsequent issuance of a title document. The Defendants had admitted they possessed neither. Most importantly, KARI had never produced a title to the court and not followed the same process of allotment that they opt to use as the test of valid and legal transmission of ownership. The law applied equally to all. The Plaintiff’s status as a protected owner was further fortified by the established principles of the Bona Fide Purchaser and the Torrens System of Registration, as demonstrated in the following authoritative cases: 12. ***“Hannington Njuki – Versus - William Nyanzi [1996] LLR 441 (CAK)”*.** This is the primary authority setting out the stringent requirements for a party to claim the status of a Bona Fide Purchaser for Value without Notice. It establishes an “8-point test” intended to verify that the buyer acted with total integrity and due diligence. By meeting these criteria, specifically holding a valid certificate, purchasing in good faith, and relying on an official search-the purchaser’s title becomes shielded from external challenges. ***“A bona fide purchaser for value without notice is one who: (1) holds a certificate of title;(2) purchased the land in good faith; (3) paid valuable consideration; (4) had no notice of any fraud; (5) had no notice of any prior interests; (6) conducted a search; (7) inspected the land; and (8) obtained a valid transfer. Where these are met, the law protects the purchaser's title as indefeasible.”*** 1. ***“Katende – Versus - Haridar & Company Ltd [2008] 2 EA 173”*.** This case provides the definitive legal meaning of “Good Faith” in property transactions. It argues that a buyer is not a “detective” and is entitled to rely on the government's own records. If the State's records show the land is available for transfer, the buyer cannot be punished or deprived of their property due to internal administrative errors or omissions made by State officers years prior. ***“Good faith means a state of mind indicating honesty and freedom from knowledge of circumstances which ought to put the holder upon inquiry. A purchaser who relies on the official register and the government's own representations cannot be held liable for the internal administrative failures of the State. The burden of administrative regularity lies with the State, not the innocent purchaser.”*** 1. ***“Lawrence P. Mukiri Mungai – Versus - Attorney General & 4 Others [2017] eKLR”*.** This authority reinforces the principle that the State guarantees the integrity of the Land Register. In this instance, it supports the argument that since the Plaintiff's official search returned as "NIL" regarding any encumbrances or third-party interests (such as KARI), the State is stopped (legally barred) from later claiming that a public entity had a hidden interest. **“The State, through the Land Registrar, guarantees the correctness of the register. Where a party conducts an official search and the State represents that the title is clear, the State is thereafter estopped from asserting a contrary position to the detriment of the purchaser who relied on that representation.”** 1. ***“Samuel D. Omwanga Angwenyi – Versus - National Land Commission [2019] eKLR”*.** This case reinforces the protection of innocent purchasers who follow formal transfer processes and rely on official searches. It is a critical affirmation of the Torrens System of registration, a system where the Land Register is everything. It holds that once the government accepts a transfer and registers a title, the transaction is “closed” to any future claims of underlying procedural irregularities. ***“The Torrens System of land registration is designed to provide certainty and finality. Once an innocent purchaser has relied on the register, conducted a search, and completed a formal transfer, their title is protected. The court cannot allow a collateral attack on such a title based on alleged historical irregularities that were not disclosed on the face of the register at the time of purchase.”*** 1. **The Torrens System, as codified in Sections 24, 25, and 26 of the Land Registration Act, operates on three core principles that support the Plaintiff's case:** 2. The Torrens System, as codified in the provision of Sections 24, 25, and 26 of the Land Registration Act, operates on three core principles that support the Plaintiff's case:- 1. **The Mirror Principle:-** The register is a perfect “mirror" of all interests affecting the land. Since no public interest was mirrored on the title, none exists against the Plaintiff. 2. **The Curtain Principle:-** A purchaser does not need to look “behind the curtain” to see how the previous owner obtained the title or to investigate the 1994 administrative process. They are entitled to rely solely on the certificate. 3. **The Insurance Principle**:-If the register is flawed, the State (not the purchaser) must bear the loss. The Plaintiffs title remains indefeasible. 3. On the allegations of fraud and illegality. The Learned Counsel submitted that the Defendants assertion in their Counter - Claim was that the Plaintiff “knowingly facilitated” an irregular transfer constituted an allegation of fraud. “Fraud” is defined in the Black’s Law dictionary, 9th edition as A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. The provision Sections 23 (1) of the Registration of Titles Act, Cap. 281 (Now Repealed) reads as follows: **“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 the proprietor of 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 misinterpretation to which he is proved to be a party.”** 1. The above section therefore made titles issued under Registration of Titles Act Cap. 281, sacrosanct and indefeasible and could only be challenged on the ground of fraud and misrepresentation. The said provisions are still applicable today as they are also retained under Section 26 of the Land Registration Act. 2. Therefore, the Defendant had the Onus to show that the Suit Properties acquired by the Plaintiff were shrouded in illegality and/or fraud which standard was not met. The Defendants’ claim that the Plaintiff “knowingly facilitated” an irregular transfer of “alienated public land” is a grave allegation that required the highest standard of proof. However, the Defendants had failed to provide any particulars of this alleged knowledge or the specific acts of facilitation. In the case of ***“Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR”***, Tunoi, JA. (as he then was) stated as follows: ***“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts 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.”*** 1. Additionally in the case of in ***“R. G. Patel – Versus - Lalji Makanji (1967 EA 314)”***, the former Court of Appeal for Eastern Africa stated thus: - ***“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”*** 1. The Defendants’ attempt to characterize the property as “alienated public land” through a Counter - Claim constituted a collateral attack on a title that has been in existence for over thirty [30] years. In the absence of a direct challenge to the year 1994 Survey Plan or a finding by a competent body such as the National Land Commission, the Plaintiff's title remains absolute and indefeasible. The Defendants had essentially asked this Court to re- write the history of the property based on mere assertions of ‘knowing facilitation’. Consistent with the ruling in the case of:- ***“National Bank of Kenya Ltd – Versus - Pipe plastic Samkolit (K) Limited”***, this Court must decline to interfere with a valid contract and a registered title where fraud has been pleaded but not strictly proved. 2. Consequently, the 1st Defendants’ Counter - Claim was a “non-starter” that disclosed no reasonable cause of action and was an abuse of the court process. The Plaintiff's title, supported by a clear root of title, the status of a bona fide purchaser and simply no illegality or fraud demonstrated and proved must be upheld as indefeasible. As emphasized in the case of:- ***“Joseph N.K. Arap Ngok – Versus - Moijo Ole Keiwua [1997]”***, the Plaintiff's title stood as an “impregnable shield”. The Defendants’ attempted to pierce this shield by merely alleging an irregular transfer without strictly proving fraud is legally untenable. 3. In the case of in ***“R. G. Patel – Versus - Lalji Makanji (Supra)”***, the former Court of Appeal for Eastern Africa stated thus:- ***“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”*** 1. Additionally, In the case of ***“Vijay Morjaria – Versus - Nansingh Madhusingh Darbar (Supra)”***, Tunoi, JA. (as he then was) stated as follows:- ***“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts 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.”*** 1. In support of the above on the issue of the Genuine Root Title, the status of a Bona Fide Purchaser for Value, and the failure of Fraud allegations, the Plaintiff/Petitioner refers the Court to the following comprehensive authority: 2. In the case of:- ***“MOMBASA - ELC CONSTITUTION PETITION NO. 32 OF 2020 Mohamed Shally Sese (suing as the administrator of the estate of the late SHAIL SESE) – Versus - Edward Mzee Karez & 8 Others [2022] eKLR”***, the is an expansive and authoritative decision from the Environment and Land Court of Kenya that serves as a modern-day treatise on the sanctity of title and the standard of proof required to impeach registered ownership. The matter arose from a complex constitutional Petition where the Petitioner, as an administrator of a deceased's estate, sought to recover land that had been sub - divided and sold to various third parties. The Court utilized this case to emphasize that land in Kenya is a “very emotive and sensitive matter” and that any judicial intervention must be handled with “vast circumspect” to avoid creating chaos or disarray in the land tenure system. 3. The Ruling was particularly significant for its deep dive into the “Root of Title.” The Court held that for a Title to be truly indefeasible, it must be anchored in a Lawful historical genesis, meaning it must have been acquired through one of the recognized methods under the provision of Section 7 of the Land Act, No. 6 of 2012 such as formal allocation or transfer. Furthermore, the Court set a remarkably high threshold for allegations of fraud, illegality, and procedural impropriety. It ruled that a party cannot simply “scratch the bare surface” by alleging that a transfer was irregular or that the land was “public.” Instead, the challenger must provide strict, expert proof, such as forensic reports or surveyor testimony, to rebut the Presumption of Regularity. The Court also refined the doctrine of the Bona Fide Purchaser, noting that while the Torrens System protects those who rely on an official search, a purchaser must not be “willfully blind" to historical red flags or existing occupation on the land. 4. On the efficacy of registration and root of title. The Learned Counsel submitted that **“Nonetheless, the root of the title is critical in any land legal dispensation. The effect of the Registration of Lands is founded in the provisions of Section 24 of ‘The Land Registration Act'...To advance on this legal preposition, the efficacy, legitimacy and legality of the rights of the legal land proprietor is created through registration. The Certificate of Title and in this case Lease is deemed to be the 'prima facie' evidence of the stated registration.”** 5. On the statutory protection of proprietors. The Learned Counsel averred that: **“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto free from all other interest and claims whatsoever.”** 1. On the strict proof required for fraud and illegality, the Learned Counsel submitted that: **“It is trite law and as founded under Sections 107 and 108 of ‘The Evidence Act’ Cap 80 that he who alleges fraud or any such a claim has to proof it. None of the parties herein have been able to proof the allegation of fraud by filing a report by a Land Surveyor or an investigation agency or forensic document examiner, or a report from the Division of Criminal Investigation Office being the established expert on demonstrating the allegation fraud were produced nor summoned.”** 1. On the issue of rectification of the Register and innocent purchasers. The Learned Counsel opined that:- **“The register shall not be rectified so as to affect the title of a particular who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”** 1. On the standard of due diligence and official searches. The Learned Counsel opined that: **“Once a search is issued by the Lands Office, it should be conclusive evidence of proprietorship in light of the fact that our title registration system is based on the Torrens System of registration. However, a search may not always be a true reflection of the position... It is necessary for one to take further steps to ascertain the authenticity of the search and ownership of land. If the Applicant had bothered to delve into history of the title... One needs to go further than a mere search.”** 1. In the case of:- ***“Portsmouth Holdings Limited – Versus - Kenya Railways Corporation [2025] KEELC 4909 (KLR)”***, the Court held (Para 56) that:- ***“a state corporation cannot defeat a registered title by merely alleging land is ‘public’ without producing a superior certificate or proving fraud. As Registrar Mwangi testified in this matter: I confirm properties are still registered in the name of the Plaintiff.”*** 1. The Plaintiffs case was anchored on the Sanctity of Title. The provision of Section 26 (1) of the Land Registration Act, 2012 mandates that a certificate of title shall be taken by all courts as “conclusive evidence” of absolute and indefeasible ownership. Ultimately, the Plaintiff's title stands as an “impregnable shield”. By demonstrating a valid Root of Title dating back to year 1994, maintaining the status of a Bona Fide Purchaser through rigorous due diligence, and exposing the Defendants’ failure to provide the strict proof of fraud required by the ***“Sese decision (Supra)”***, the Plaintiff has established a claim that is legally unassailable. To allow these assertions to proceed would be to sanction a collateral attack on the Torrens System and undermine the finality of the Land Register. 2. On whether the 1st Defendant is legally estopped from challenging the year 1994 subdivision under the doctrine of approbate and reprobate, the Learned Counsel submitted that on the issue of the Defendants Ratification and Estoppel by conduct the Plaintiffs avers that the Defendants’ challenge to the 1994 sub - division was legally barred by their own active participation and the benefits they derived from that very process. The Defendants could not approbate the validity of the year 1994 sub - division to claim ownership of LR No MN/III/2945 (which they occupy), and simultaneously reprobate the same subdivision process regarding the Plaintiffs Parceis 2947 and 2948. Their acceptance of a benefit under Survey Plan FR 270/7 creates an Estoppel by Conduct. This was due to the following facts:- 3. The suit property was originally surveyed as unalienated Government land designated LR No. MN/III/1450, measuring approximately 13.42 Hectares. By failing to challenge this initial classification, the Defendants conceded to the Commissioner of Lands’ jurisdiction to alienate the land. 4. The Commissioner of Lands approved the subdivision of Parcel 1450 into five [5]distinct portions, LR Nos. MN/III/2944 through 2948 via Survey Plan FR 270/7. 5. Crucially, during this 1994 process, KARI was allocated LR No. MN/III/2945. The Defendants did not protest the subdivision at the time; instead, they accepted the specific plot, took possession, and utilized it for staff quarters. 6. KARI’s long-term occupation and use of Parcel 2945 constitutes a clear Ratification by Conduct of the entire Survey Plan FR 270/7. They cannot selectively validate the part of the plan that benefited them while seeking to nullify the parts that allocated Parcels 2947and 2948 to the Plaintiffs predecessors. 7. Under this settled principle of Kenyan law, a party could not “blow hot and cold” by accepting the validity of a transaction for one purpose and rejecting it for another. Having “approbated” the sub - division to secure Parcel 2945, the Defendants are legally estopped from “reprobating” the same sub - division to challenge the Plaintiff’s titles. 8. The Defendants’ current position was a contradiction in terms. By living on Parcel 2945, they had lived within the validity of the 1994 sub - division for over thirty [30] years. This Honourable Court must find that the Defendants had waived any right to challenge the technical or administrative legitimacy of the Plaintiff's “Root of Title.” 9. The Defendants’ claim regarding the mother parcel, LR. No MN/III/1450, was notably only introduced as a late-stage Counter - Claim with no specific reference as to what they are claiming. Despite challenging the subdivision, the Defendants failed to call any witnesses from the Ministry of Lands or the Survey of Kenya to substantiate their allegations. Furthermore, the allotment process in Kenya was uniform for all entities; by seeking a “parallel” allotment in the year 2012 while this suit was active, the Defendants acted in contempt of court orders and in violation of the established legal process, rendering their claims a procedural nullity. 10. Crucially, when the 1st Defendant sought Letters of Allotment in the year 2012, it did so specifically for the subdivided Suit Properties rather than the mother parcel, LR No. MN/III/1450. By doing so, the 1st Defendant implicitly recognized the legal origin and validity of the 1994 Sub-division process. 11. The Plaintiff relied on the Court of Appeal decision in ***“Express Kenya Limited – Versus - Michael Rehal [2014] eKLR”***, which serves as the definitive authority on the principle that a party could not “blow hot and cold” (quod approbo non reprobo). In this case, the Court held that a party who had accepted the benefits of a transaction or a legal process, such as the 1st Defendant’s acceptance of LR No.MN/III/2945 under Survey Plan FR 270/7, was legally barred from subsequently challenging the validity of the very process that created that benefit. As the Court aptly observed: ***“The doctrine of election, or the principle of ‘approbate and reprobate,’ is that a person shall not be allowed to say that one part of a transaction is valid and another part of it, which is not to his liking, is invalid. You cannot take the benefit of a document and then reject the burden or the validity of the process that created that benefit.”*** 1. On the other hand, there was an issue of the ownership gap and failure of the statutory reservation on the part of the Defendant. The Plaintiff averred as hereunder:- 2. The Defendants' claim to the suit properties is a legal vacuum. Internal State records and historical inaction prove that KARI never established a “root of title” and remained, at best, unauthorized occupants of unalienated Government land. 3. The adverse claims by KARI/KALRO regarding MN/III/1450 lacked both procedural and evidentiary foundation, as this parcel was only introduced belatedly through their counterclaim without any technical clarification as to the specific extent or nature of the interest being claimed. 4. Throughout the proceedings, KARI failed to call any witnesses or officials from the Ministry of Lands or the Survey of Kenya to substantiate their allegations or to challenge the regularity of the sub - division that created the suit properties. This omission was critical, as the allotment and registration process in Kenya was uniform and mandatory for all entities, whether private individuals or State corporations. 5. By failing to provide any authoritative testimony to impeach the 1996 Grant, and by instead seeking a “parallel” allotment in the year 2012 in direct contempt of existing court orders, KARI has demonstrated a total disregard for the rule of law. Their claim, therefore, rests on unverified internal assumptions that cannot override a state-guaranteed title supported by the officially approved Survey Plan FR 270/7. 6. Unlike land specifically reserved for a public aerodrome or international airport under a specialized statute, such as the Kenya Airports Authority Act Cap. 395 of the Laws of Kenya, the suit property was officially classified as “Unalienated Government Land” at the time of its 1994 Sub-division. This status is supported by the Director of Surveys’ records (5th March, 1991), which explicitly confirm the parcel's classification as “un-surveyed government land” available for alienation. Consequently, the “automatic nullity” argument regarding the transfer of established public utility land is legally inapplicable here; at the material time, the Commissioner of Lands possessed the full legal mandate and jurisdiction to alienate the property, a process that was perfected through the issuance of the Presidential Grant. 7. As established in the landmark case of ***“Joseph N.K. Arap Ng'ok – Versus - Justice Moijo Ole Keiwua & 5 Others [1997] eKLR”***, the Plaintiff's title constitutes a conclusive and indefeasible right of ownership. The Court of Appeal underscored that a registered title serves as a protection against third-party claims and can only be defeated if the challenger proves - to a standard strictly higher than a mere balance of probabilities (emphasis ours), that the Title was obtained through fraud or misrepresentation directly attributable to the Plaintiff. In the absence of such evidence, the Presumption of Regularity applies to the 1994 Sub-division and the subsequent issuance of the Presidential Grant. Per the precedent in Arap Ng'ok, the Plaintiff is a bona fide purchaser for value without notice, whose absolute rights cannot be unsettled by historical claims that pre-date the registration. 8. In the absence of such proof, the “Ownership Gap” lied entirely with the Defendants. Their purported “Allotment Letters” from 2012 were procured *sub judice* and without NLC involvement. These documents were a procedural nullity and could not override a state-guaranteed Grant issued in the year 1996. Consequently, these actions was illegal, without legal force, and could not override the state-guaranteed titles through a now well-established allotment process, duly presented and proved by the Plaintiff. 9. KARI's claim was not based on law, but on historical inertia. Having failed to convince the Commissioner of Lands for 30 years, they could not now use the Court to manufacture a title that never existed. 10. The Learned Counsel submitted that the Plaintiffs position is further fortified by critical documents contained in the Supplementary List of Documents dated 29th September, 2022. These records, originating from the State's own offices, demonstrate a consistent recognition of the Plaintiff's ownership and a total absence of any documented interest held by the Defendants. They invited the Court to take particular note of the following: 11. Letter at page 3 of the Supplementary List of the Plaintiffs. In a letter dated 15th May, 1992, the Commissioner of Lands explicitly notified KEMFRI that the land purportedly intended for KARI was non-existent in official records. The Commissioner demanded a Site Plan and definitive “documentary evidence of ownership,” advising that if they truly owned the land, they must proceed with a formal sub - division. KARI failed to produce any such evidence of ownership or authority of occupation. 12. On page 4 of the Plaintiffs Supplementary List A decade later, in correspondence dated 12th August, 2002, KEMFRI admitted that the Commissioner of Lands had formally “declined to allocate this land” because KARI and KEMFRI lacked any documentation to support a claim of prior ownership. This confirmed that, as of 2002, the State did not recognize any interest held by the 1st Defendant in the Suit Properties. 13. The year 2002 correspondence further admitted they were aware that “other parties had already acquired the portions” now in dispute. Despite having actual knowledge of these private titles nine years prior to the 2011 dispute, the Defendant took no legal action to challenge them. Despite this long-standing knowledge, the Defendant failed to initiate any legal action to challenge these private Titles in 2002. Furthermore, they took no formal legal steps during the 2011; instead, they were forced to act when they chose to forcefully encroach and trespass on the property. Their current assertions remain purely reactionary, as they had never pursued a legitimate legal claim to the land. 14. The KARI Centre Director explicitly admitted in a letter dated 2nd February, 2010 that the institution does “not have copies of any supportive documents to show that the land belonged to KARI”. Furthermore, the letter revealed that a follow-up by their own legal officer with surveyors concluded that only “plot 2945 belonged to KARI,” thereby failing to claim ownership of the specific suit properties Nos MN/III/2947 and MN/III/2948. Despite of this documented uncertainty and their long-standing awareness of private development on the other plots including the Suit Properties, the Defendant failed to initiate any formal legal challenge to the titles. Instead, they chose to forcefully encroach and trespass on the property, rendering their current assertions merely reactionary and secondary to the genuine Letters of Allotment and the officially approved Survey Plan FR 270/7. 15. Further, the Learned Counsel submitted that from the above it was clear that the Plaintiff's root titles can be traced, however the 1st Defendant has never had any Title Deed or any documents whatsoever to support its claim to ownership of LR MN/III/1450 and/or the Suit Properties. They attempted to get an allotment letter during the pendency of the Suit, hence clearly showing that they had never at any given time had any Title Deed for the Suit Properties. It was critical for the court to note that the Defendants claims over the Suit Properties are in itself a contradiction to its claim over the 13Ha, LR MN/III/1450, since it seems to be acknowledging the existence of the Suit Properties, which were Sub- divided from MN/III/1450, yet if they claim the Suit Properties were illegally created and they owned LR MN/III/1450, as a whole, the that is what they should be seeking to have allotted to themselves, not the so called illegally created Suit Properties, for which the solicited the said allotment letters. They indicated that a person could not seek to own something which thing they claim was illegal, hence something the person claims never existed. 16. On whether the revocation via gazette notice No. 15570 was a procedural nullity. The Learned Counsel asserted that the purported administrative revocation of the Plaintiff's titles via Gazette Notice No.15570 was a legal nullity and an exercise in futility. Under the provision of Section 26(1)(b) of the Land Registration Act, No. 3 of 2012, while a Certificate of Title may be challenged if it was acquired un-procedurally, such a determination was reserved exclusively for a Court of competent jurisdiction following a full merits-based hearing. The Registrar of Lands and the Cabinet Secretary possess no quasi-judicial power to unilaterally “cancel” or “nullify” a registered title through a mere administrative decree. This position, established as early as ***“Kuria Greens Limited – Versus - Registrar of Titles eKLR”***, had been re - affirmed with finality by the Supreme Court in the case of:- ***“Dina Management Limited – Versus - County Government of Nyandarua & 5 others (2023)”***, which held that any attempt to revoke a title via a Gazette Notice without a court order was ultra vires, void ab initio, and incapable of extinguishing a proprietor’s indefeasible rights. 17. Furthermore, this “trial by Gazette” constituted a gross violation of the Right to Property under the provision of Article 40 and the Right to Fair Administrative Action under the provision of Article 47 of the Constitution. The Plaintiff was never served with a notice of intended revocation nor granted the opportunity to defend its root of title before the Gazette was published, rendering the entire process a procedural nullity. Because the Defendants failed to move this Honourable Court to formally cancel the Plaintiffs titles, Grant No. CR 28310 and 31659 remains valid and legally binding. In the eyes of the Law, Gazette Notice No. 15570 was a “paper tiger” that lacked the statutory weight to override the sanctity of a registered title held by a Bona Fide Purchaser who relied on the integrity of the government land register. 18. In support of this legal position, the Learned Counsel referred the Court to the following authorities: 19. ***“Kuria Greens Limited – Versus -Registrar of Titles [2010] eKLR”***. This authority reinforced the principle that the Registrar of Titles is a record - keeper, not a tribunal or a Judge. The Court held that for a Registrar to assume the role of a Judge and cancel a title without a court order constitutes a “manifest illegality”. ***“The court held that any attempt by the Registrar to cancel a title without a court order is a 'manifest illegality’ and a ‘nullity ab initio.’ The Registrar is a record-keeper, not a tribunal.”*** 1. The case of:- ***“Republic – Versus - Senior Land Registrar (The Langat Case) [2021]”***. The Plaintiff relied on this authority to seek the remedy of Certiorari to quash the illegal Gazette Notice. The Court in case of Langat held that administrative actions taken without jurisdiction or in violation of procedural fairness must be quashed to maintain the integrity of the law. 2. The case of:- ***“Pastoli – Versus - Kabale District Local Government [2008] EA 300”***. This case provides the definitive legal meaning of ‘Procedural Impropriety’. It established that a decision-making authority must act fairly and observe the rules of natural justice, including the principle of *audi alteram partem*. ***“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with... procedural impropriety is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may being non observance of the rules of natural justice it may also involve failure to adhere and observe procedural rules expressly laid down in a statute...”*** 1. On whether the Defendants actions constituted a contemptuous affront to the Court and warrant an award for damages for trespass. The Learned Counsel submitted that the Defendants’ conduct had moved beyond mere procedural disagreement into a systemic “culture of impunity,” characterized by a decade-long pattern of violating subsisting Court Orders and the forced sterilization of the Plaintiff's land use. The Plaintiff’s right to property under the provision Article 40 was not merely a right to a title deed, but a right to the quiet enjoyment, development, and commercial exploitation of that land. For over fifteen [15] years, the Defendants had effectively held the Suit Properties hostage:- 2. Since the inception of this suit in year 2011, the Plaintiff had been barred from utilizing its beach properties for gain or any beneficial development due to the Defendants’ meritless claims and physical aggression. 3. By utilizing tractors to attempt physical evictions and deploying agents for forceful incursions as recently as September, 2025, the Defendants had substituted the “rule of law” with “rule by force”. 4. The procurement of a “paper defense” via a parallel Letter Allotment in the year 2012, while active stay orders from Hon. Justice Hannah Okwengu were in effect, was a bad-faith attempt to defeat the course of justice 5. This illegality was further compounded following the proceedings of 28th February, 2012, where this Court granted a Temporary Injunction against the 1st Defendant. The issuance and subsequent reliance on the January, 2012 Letter of Allotment stood in direct contempt of the court’s mandate to maintain the status quo. The legal status of the Suit Properties was governed by the Ruling and Order delivered on 28th February, 2012. This order, which remained in force, strictly restrained the Defendants from “*entering into, trespassing, demolishing, destroying, damaging or in any manner whatsoever interfering with properties L.R. Nos. MN/III/2947 and L.R. MN/III/2948*”. Any entry by the Defendants since year 2012 was not merely a civil trespass but a direct affront to the authority of this Honourable Court. 6. The Plaintiff was compelled to initiate this suit to protect its state-guaranteed title from a groundless assault. The Defendants must not be permitted to walk away without compensating the Plaintiff for the following:- 7. The constant threat of eviction has denied the Plaintiff the ability to utilize its property for any beneficial way pending the outcome of a suit that had lasted over a decade. 8. To allow a Government entity to block the use of private property without a valid root of title would set a dangerous precedent, signaling that State agencies can “freeze” private land without any merit and escape financial accountability. 9. The Defendants' own witness admitted in June, 2025 that they possess no title and are “no longer on the land,” yet they proceeded with a fresh, malicious trespass in September, 2025 to further frustrate the Plaintiff's quiet possession 10. The Learned Counsel posited that the Plaintiff’s previous advocates, Messrs. Mucheru - Oyatta & Associate Advocates, vide a letter dated 30th March, 2015, formally notified the National Land Commission (NLC) of the existing High Court orders. They demanded that the NLC cease processing KARI’s Letter of Allotment and move to cancel them. Despite of a further follow-up by the Plaintiff in the year 2022 requesting a reply, the NLC and the Defendants chose to ignore these legal demands. 11. In the case of:- ***“Torino Enterprises Limited – Versus - Attorney General [2023] SCK”***, the Supreme Court held that a Letter of Allotment was merely an “executory license” and could not override a registered Grant. Under the case of:- ***“Wreck Motor Enterprises (Supra)”***, the Plaintiff's registered interest was supreme over KARI's unperfected equitable claims. 12. The Land Registrar's testimony, via a formal Witness Statement dated 20th May, 2022, serves as the “State’s Certification” of the Plaintiff’s valid title: On *Sub Judice* Interference. The Registrar noted that KARI sought a “parallel” allotment in year 2012 while this suit was already active (filed in 2011), proving an illegal attempt to create a title *sub judice* and in contempt of Court. As documented in the Plaintiff's formal report to the Regional Police Commander (Coast) dated 5th September, 2025, the Defendants committed a fresh and aggravated act of trespass on 3rd September 2025. By deploying agents to forcefully enter the Suit Properties while the matter remained *sub judice*, the Defendants have acted in deliberate defiance of the year 2012 Order. This incident, following the Plaintiff's “Notice of Contempt,” proved a relentless intent to harass the Plaintiff's lawful possession. 13. The year 2025 trespass was part of a systemic “rule by force” rather than “Rule of Law,” as evidenced by: 14. Record under O.B. Nos. 34/11/07/2018 and 39/12/07/2018, where the Defendants utilized tractors in an attempt to physically evict the Plaintiff. 15. The 1st Defendants' own witness, Finyange Pole, admitted under oath on 19th June, 2025: *“****I confirm that as at the moment KARI are not in possession... we are no longer on the land”***. “This judicial admission of “non-possession” in June, 2025 renders the subsequent forceful entry in September, 2025 a clear-cut case of Trespass. Having admitted they were “no longer on the land”, the Defendants could not claim they were “protecting property”; they were instead attempting to achieve through force what they failed to achieve through the production of a title. 16. The Defendants witness, Finyange Pole, further stated:- *“****I have not produced a surveyor’s report... I have nothing to show these 2 parcels (2947 and 2948) were reserved for KARI*.**” Without a Survey Report or Title, the 1st Defendant was a legal stranger to the Suit Properties. 17. The Learned Counsel contended that the case of:- ***“Hannah Wanjiku Gathondo – Versus - Rose Gathondo & 2 Others [2013] eKLR”*** served as a pivotal authority on the sanctity of title under the Land Registration Act, No. 2012. The Court held that a registered proprietor's rights are absolute and protected unless fraud or illegality was strictly proven by the challenger. Crucially, the case underscores the “Rule on Admissions”, establishing that when a Defendant failed to provide their own documentary proof of ownership, such as a title or deed plan and admits to the plaintiff’s status as the registered owner, the burden of proof shifts heavily, and the registered title must prevail. **“Under Section 58 of the Evidence Act, no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands. In this matter, the Defendants’ own admissions regarding the absence of a superior title or deed plan dispense with the need for the Plaintiff to further prove the illegality of the Defendants’ occupation.”** 1. On whether the Plaintiff was entitled to an order of permanent injunction to protect its indefeasible title and possession. The Learned Counsel submitted that the Plaintiff’s prayer for a Permanent Injunction is a judicial necessity to safeguard an absolute title that has been confirmed by both technical survey records and the testimony of the Land Registrar. Given the Defendants’ admission that they lacked any ownership documents, their forceful entry into the property in September, 2025, in open defiance of existing restraining orders, demonstrated a “culture of impunity” that only a final, perpetual injunction can restrain. To protect the Plaintiff's quiet enjoyment of the Suit Properties, the Court was invited to grant this relief in accordance with the following established authorities:- 2. The case of:- ***“WMM – Versus - CWM [2018] eKLR (Murang'a ELC No. 316 of 2017)”***. This authority reaffirmed that a permanent injunction is the consequential remedy for a registered owner whose rights are threatened. It established that once ownership was proven via a valid title, the Court must protect the proprietor's right to quiet enjoyment by perpetually barring any third-party interference. ***“The Plaintiff having established his title to the suit property, is entitled to the quiet and peaceful possession and use of the same. Consequently, a permanent injunction is hereby issued restraining the Defendant... from interfering with the Plaintiffs occupation, possession, use, and quiet enjoyment of the said land.”*** 1. The case of:- ***“Mary Nameamba Juma – Versus - Asha Mohamed [MOMBASA ELC NO. 19 OF 2019]”***. This case underscored the Court's duty to intervene and protect property rights under its inherent powers. It clarified that a permanent injunction was a final decree that fully determined the rights of the parties and served as a perpetual shield against future violations. ***“A permanent injunction fully determines the right of the Parties before the Court and is meant to perpetually restrain the commission of an act... The Court has the power to grant such an injunction under Sections 1A, 3, and 3A of the Civil Procedure Act where it finds the rights of a party have been infringed, violated, or threatened.”*** 1. ***“Jacob Ernest Ambala Odondi – Versus - Violet Shikuku [2021] EKLR (BUSIA ELC NO.E005 OF 2020)”***. The Court held that where a Plaintiff provides technical survey evidence or official land reports that remain uncontroverted by the defendant, such evidence is sufficient to ground an order for a permanent and mandatory injunction against trespassers. ***“Where the Plaintiff's evidence of ownership and the surveyor's report on encroachment remain undisputed, the Plaintiff is entitled to the protection of the law. An order of permanent injunction is therefore issued to restrain the defendant from entering upon, remaining on, or otherwise dealing with the suit property.”*** 1. The case of:- ***“Ratilal Ghela Shah – Versus - Darius Mwiti Kirimi & Another [MOMBASA ELC CASE NO. 177 OF 2017]”***. This decision reinforced the statutory protections of the Land Registration Act. It held that registration vested absolute ownership in the proprietor, and such title cannot be defeated by claims of “historical” or “equitable” interests that were not perfected through registration. ***“The registration of a person as the proprietor of land vests in that person the absolute ownership of that land... Under Section 26 of the Land Registration Act, a certificate of title is prima facie evidence of indefeasible ownership and shall not be liable to be defeated except as specifically provided in the Act.”*** 1. The case of:- ***“Stephen Mungai Munga & Another – Versus - Henry Kalume Katana & Others [MOMBASA ELC CASE NO. 241 OF 2019]”***. This authority clarifies that a permanent injunction was not merely a temporary measure but a final decree of the Court. It was granted upon the conclusion of a trial to provide a final and lasting determination of property rights against any form of infringement. ***“A permanent injunction ……….. is granted upon the hearing of the suit on its merits. It fully determines the rights of the parties and acts as a decree of the Court to perpetually restrain the commission of acts that infringe upon the Plaintiff's constitutionally protected right to property.”*** 1. On whether the Plaintiff/ Petitioner was entitled to the reliefs sought in the Plaint and Petition. The Learned Counsel averred that the Plaintiffs entitlement to the reliefs sought was established on a balance of probabilities, further reinforced by the Defendants’ own Judicial Admissions. They moved this Court for the following specific remedies as prayed for in the Plaint and Petition:- 2. The Plaintiff sought a declaration that the Grants issued in respect to the Suit Properties was conclusive evidence of ownership and that the Petitioner was the absolute and indefeasible owner. Consequently, the Court was invited to declare that the Respondents’ purported revocation of the Petitioner’s Titles was unconstitutional, null, and void. 3. Having proved a valid title, supported by the Land Registrar's testimony and the Defendants’ admission that they possess no ownership documents, the Plaintiff was entitled to a permanent order restraining the Defendants from entering, trespassing, or in any manner interfering with the Suit Properties. As the Defendants admitted they were “no longer on the land” as of June, 2025, the forceful entry in September, 2025 was a fresh trespass that necessitates these protective orders. 4. The purported administrative revocation via Gazette Notice No. 15570 was a procedural nullity. Following the case of:- ***“Republic – Versus - Senior Land Registrar and Church Commissioners precedents”***, the NLC and Registrar acted ultra vires. Therefore, they sought an Order of Certiorari to quash said notice and an Order of Prohibition to stop the Respondents from alienating the Suit Properties or issuing parallel titles/licenses to third parties. 5. The Plaintiff sought to compel the Land Registrar to perform their statutory duty to maintain the registry in a manner that reflected the Plaintiffs absolute ownership. This included compelling the Respondents to delete any illegal entries on the Petitioner’s Titles and to publish a formal cancellation of the revocation in the Kenya Gazette within thirty [30] days. 6. The Defendants’ forceful entry in September, 2025, in the face of active Court Orders, was “oppressive, arbitrary, and malicious.” Following the precedent in “***Portsmouth Holdings (Supra)”,*** where the Court punished similar high-handedness by a State agency, the Plaintiff was entitled to substantial damages for trespass and the costs of this suit. 7. According to the Learned Counsel, in support of the prayers sought in the Petition the Petitioner relied on the following Authorities:- 8. In the case of ***“Kwale ELC No. 7 of 2021 Portsmouth Holdings Limited – Versus – Kenya Railways Corporation”***, the Court held that:- ***56. “The Plaintiff submits that the same position obtains in Section is 24 and 25 of the Land Registration Act. Since the Defendant has not produced any superior certificate of lease or document to prove any ownership of the suit property, the Plaintiff submits that the allegations... are for rejection. Reliance is placed on Wreck Motor Enterprises -vs- The Minister of Lands & Others C. A No. 71 of 1997 and Dr. Joseph Arap Ng'ok & Another -Versus - Moijo Ole Keiwua & Others C.A 60 of 1997."*** ***59. “The fact that it (the Defendant) has filed a Counter - Claim to claim ownership of the suit property and plead for the cancellation of title after it has forcefully taken possession using government force, is itself proof enough of the Defendant's interest in the property and a clear motive for being responsible over the trespass.”*** ***60. “By taking the law into its own hands, the Plaintiff submits that the demolition was oppressive, arbitrary, illegal and malicious. Reliance is placed on Section 3(1) of the Trespass Act, Article 40 of the Constitution, Rajabali Kassam T/A Giraffe Snack Bar – Versus - Total (K) Ltd (2009) eKLR, and Monica Wamuhu Macharia – Versus - Kenya Railways Corporation (2023) eKLR.”*** ***70. “The Plaintiff terms the purported trespass... claim it form part of the Kitale Railways Station Operation area as a legal joke, unjustified, arbitrary, illegal malicious and amounting to breach of violation of its constitutional right to own, use and enjoy the right to ownership of land under Article 40 of the Constitution.”*** ***78. “Section 23(1) of the repealed Registration of Title Act provided that a certificate issued based on the Act shall be taken as conclusive evidence that the person named therein was the absolute and indefeasible proprietor notwithstanding any defect in title; other than on account on fraud or misrepresentation.”*** ***79. “The Registrar could not, therefore, revoke or cancel the title, whether in public interest or otherwise, unless directed by a court under Section 64 of the Act. See Kurai Greens Ltd -vs- Registrar of Titles &Commissioner of Lands, Nairobi Petition No. 107 of 2010 and in Satima Enterprises Limited -Versus - Registrar of Titles & Others (2012) eKLR.”*** ***81. “My considered view of the independence Constitution and the repealed Registration of Titles Act, and the case law is that the Grant issued on 1/1/1955 and perfected by the Registrar of Titles in 1960,concluded the alienation of the suit land.... Based on that law, the Plaintiff submits that Grant of leasehold for 93 years with effect from 1/1/1955, alienating the suit land had full effect of the law and could not be varied or annulled by any subsidiary legislation.”*** ***85. “Section 32 of the Survey Act, 2010 provides that no land shall be deemed to have been surveyed or resurveyed until the plan thereof has been authenticated by the signature of the Director... The Director of Survey can authenticate deed plans... or cancel or recall certain deed plans if there are errors or omission.*** ***Clause 88. “There is no evidence that the Defendant before the trespass and the demolition sought the registrar of titles, the Director of Surveys and the Commissioner of Lands to cancel, grant, deed plans and the lease... for an alleged encroachment on public land.”*** ***150. (Final Decree): “That a declaration be and is hereby made That the Plaintiffs rights... under Article 40 were breached... That an order for payment of compensation of Kshs 57,004,001.00 is hereby issued for the destruction of structures and the total denial of land use and occupation since January 2021... (and) an order of permanent injunction be and is hereby issued.”*** 1. In the case of ***“NBI Court of Appeal Civil Appeal No. 222 of 2012 Express Kenya Limited – Versus – Michael Rehal [2014] eKLR”***, the Court held that:- ***“22.The doctrine of election, or the principle of 'approbate and reprobate,' is that a person shall not be allowed to say that one part of a transaction is valid and another part of it, which is not to his liking, is invalid. You cannot take the benefit of a document and then reject the burden or the validity of the process that created that benefit."*** ***24.In this case, the court held that a party who has accepted the benefits of a transaction or a legal process... is legally barred from subsequently challenging the validity of the very process that created that benefit. A party cannot blow hot and cold at the same time.”*** 1. In the case of ***“NBI COURT OF APPEAL CIVIL APPEAL NO. 106 OF 2000, Vijay Morjaria – Versus - Nansingh Madhusingh Darbar (Supra)”***, the Court held that:- ***“15. It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently."*** ***17. 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. The standard of proof is higher than on a balance of probabilities.”*** 1. In the case of ***“NBI ELC CIVIL CASE NO. 495 OF 2008 (Old Case No. 343 of 2007) Hannah Wanjiku Gathondo – Versus - Rose Gathondo & 2 Others [2013] eKLR”***, the Court held:- ***“31.This case reaffirms the sanctity of title under the Land Registration Act. The court held that a registered proprietor's rights are absolute and protected unless fraud or illegality is strictly proven. Where a Defendant fails to provide their own documentary proof of ownership... the registered title must prevail.*** ***33. Under Section 58 of the Evidence Act, no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing... In this matter, the Defendants’ own admissions regarding the absence of a superior title or deed plan dispense with the need for the Plaintiff to further prove the illegality of the Defendants’ occupation.”*** 1. In the case ***“MOMBASA - J.R NO. 1A OF 2021 Republic – Versus - Senior Land Registrar of Title Mombasa & Langat”***, the Court held:- ***18.The prerogative writs of “Certiorari” derives from the Latin word “Certiorari” which means to be certified, informed, appraised or shown. Both in its embryonic days and today, the order, initially an prerogative writ was inferior courts and required the proceedings of that to be transferred to the High Court and examined for validity. It meant the decision would be quashed. From the Provisions of Order 53 of the Civil Procedure Rules the Applicant ought to move court within a period of six (6) months from the time the order, decree, judgment, conviction or other proceeding was made. The Order of “Prohibition” issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction. The order of "Mandamus” is derived from the Latin word “Mandare” meaning to command. It is issued in cases where there is a duty of a public or a quasi-public nature or a duty imposed by statute, it compels the fulfillment of a duty where there is a lethargy on the part of a body or officer concerned.*** ***19.In a nutshell Judicial Review is the means by which High Court judges scrutinize public law functions intervening as a matter of discretion to quash, prevent ,require and/or classify not because they disagree with the judgment but so as to right a recognizable public law wrong. This public law wrong could be unlawfulness, Wednesbury unreasonableness or irrationality, unfair hearing, ultra vires bad faith, unfairness, made or arrived at out of excess powers(ultra vires) biasness, capriciousness or un Judicially.*** ***20.In an application for Judicial review the Applicant must be person with a sufficient interest -(Locus Standi) and who commences proceedings promptly. To support this legal concept on judicial review,I have made in depth references to several literature review and court decisions - “Pharmaceutical manufacturers Association of South African re-exparte president of Republic of South Africa- 2000 S.A.674 CC at 33 Republic - Versus -Speaker of the Senate and Another Ex-parte Afrison Export Import Limited 2018 eKLR Republic -Versus- Stanley Mambo Amuti (2018) eKLR.”; the Kenya National Examination Council -Versus- Republic (Ex - Parte- Geoffrey Gathenji & Another Nairobi Civil Appeal No. 266 of 1996. 21. In the instant case, the Ex-Parte Applicant has sought all the above two out of the three known the writ prerogative Orders - Certiorari and Prohibition. As stated above, this court has powers under Sections*** ***21.In the instant case, the Ex-Parte Applicant has sought all the above two out of the three known the writ prerogative Orders -Certiorari and Prohibition. As stated above, this court has powers under Sections 8 and 9 of the Law Reform Act, Cap. 26 of the Laws of Kenya to issue prerogative writ of Certiorari, which brings into this court to quash a decision which is ultra vires. A writ of prohibition intended to forbid or prevent an action by a public officer from taking place is granted alongside Certiorari, since it's a similar remedy but more prospective than retrospective. While certiorari looks at the past, prohibition looks at the future. The provision of Section 8 of the Law Reform Act, also provides fora writ of prohibition which primarily prohibits a tribunals, judicial bodies or subordinate courts from doing or taking an action in excess of its jurisdiction*** ***25.To support my preposition, I am guided by the Civil Appeal No.266 of 1996 Kenya National Examination Council - Versus - Republic Ex Parte Geoffrey Gathenji Njoroge & 9others [1997], the Court of Appeal addressed its mind to efficacy and purport of the order of certiorari and prohibition. On certiorari the court had this to say; “Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.*** ***26. Additionally, in the case of “Pastoli - Versus - Kabale District And Others (2008) 2 E.A. 300 the court set out the duty of a court in Judicial Review applications as follows: - “ In order to succeed in1 an application for Judicial Review, the Applicant has to show that the decision or the act complained of is tainted with illegality, irrationality and procedural impropriety......Illegality is when the decision making authority commits an error of law in the process of taking or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles are instances of illegality.......irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority would have made such a decision is usually in defiance of logic and acceptable moral standards......Procedural impropriety is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non -observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”*** ***27. In the case of “Municipal Council of Mombasa - Versus - Republic Umoja Consultants Limited Civil Appeal No. 185 2007 (2002) eKLR the court of appeal set out the parameters in applications for JR and held that:- “The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who made the decision have power i.e. jurisdiction to make it. Were the provisions affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did the take into account irrelevant matters. These are the kind of questions a court hearing a matte by way of Judicial review is concerned with and such court is not entitled to act as a court of appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review.”*** ***31.In light of the above, therefore, I emphatically find that the Respondent acted in ultra vires of his powers and did not follow the procedure as laid out in the provision of Section 60 of the Registration of Titles Act (Cap 281).*** ***32. As regards, the 2nd prayer of prohibition was discussed in Kenya National Examination Council case supra, where the Court of Appeal defined what an order of prohibition is and when it will issue:-*** ***“It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also fora departure from the rules of natural justice. it does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings - see HALSBURY'S LAW OF ENGLAND, 4th Edition Vol.1 at pg. 37 Paragraph 128. When those principles reapplied to the present case, the council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised. If the Council were to declare in advance that it was going to cancel particular results because the candidates involved were not supporters of the government of the day or some such like irrelevant reason, there cannot be any doubt but that the High Court, on application by the candidates so threatened, would issue an order prohibiting the Council from acting either in excess of its jurisdiction or contrary to the laws of the land. In such an event, it would be idle for the Council to contend that it has its own statute and the High Court ought not to intervene; the High Court would be entitled, indeed duty-bound, to intervene. That is why it is said prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be efficacious against the decision as made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision.”*** ***40.Ultimately, having caused the analysis of the framed issues, on Preponderance of Probabilities and the balance of convenience, the Honorable Court grants the following specific orders:-*** ***a. That Judgment be and is hereby partly entered in favour of the Ex - Parte Applicant under the following terms and conditions:-*** ***i. An order of Certiorari to remove into the High Court and quash the Order made by the Senior Registrar of Titles, Mombasa under the Constitution of Kenya, the Government Lands Act (Cap 280) and the Trust Land Act (Cap 288) of the Laws of Kenya, on the 21st May 2010 in gazette Notice Number 5562, declaring the Title issued to the Applicant for Malindi L.R No. Portion 10595 revoked.*** ***ii. An order of Prohibition prohibiting the Senior Registrar of Titles, Mombasa from revoking, recalling, cancelling and/or impeaching the Applicant's Title to Malindi L.R NO. portion 10595 and/or acting in any other way prejudicial to and/or inconsistent with*** ***the applicant's registered ownership of Malindi L.R No. portion 10595 be and is hereby declined. b. That an order of Prohibition prohibiting the Senior Registrar of Titles ,Mombasa from disseminating , publishing, placing advertisements, notifications to the public in any form of media expressing, making representations and/or verbal utterances to any one in any way or in any manner at all, of any of the material which may be construed as being inconsistent or which is inconsistent with the legality of the registered proprietorship of Kipterer Paul Arap Langat over Malindi L.R No. portion 10595 be and is hereby declined. c. That the costs of the suit to be awarded to the Ex - Parte Applicant.*** ***b. That an order of Prohibition prohibiting the Senior Registrar of Titles, Mombasa from disseminating, publishing, placing advertisements, notifications to the public in any form of media expressing, making representations and/or verbal utterances to any one in any way or in any manner at all, of any of the material which may be construed as being inconsistent or which is inconsistent with the legality of the registered proprietorship of Kipterer Paul Arap Langat over Malindi L.R No. portion 10595 be and is hereby declined.*** ***c. That the costs of the suit to be awarded to the Ex-Parte Applicant"*** 1. In the case of ***“VOI - ELC CONSTITUTIONAL PETITION NO. 1 OF 2024 Trustees of The Church Commissioners of Kenya, Registered Trustees - Versus - National Land Commission [NLC] & ANOR”***, the Court held that: ***“49. Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes and has to be watered. Without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under the provision of Article 259 (1) providles a guide on how it should be interpreted as such:- a. Promotes its purposes, values and principles; b. Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; c. Permits the development of the law; and d. Contributes to good governance......”*** ***51. Based on the principles set out in the edit of the Court of appeal case of the “Mumo Matemu - Versus - Trusted Society of Human Rights Alliance & Another (2013)eKLR” provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru - Versus - Republic [1980]eKLR 154” where the court is satisfied that the Petitioner's claim were well pleaded and articulated with absolute particularity. It held:-*** ***“Constitutional violations must be pleaded with a reasonable degree of precision.......”*** ***Further, in the "Thorp- Versus -Holdsworth (1886)3 Ch. D 637 at 639, Jesse, MR said in the year 1876and which hold true today:*** ***“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule......was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing.”*** ***56. The Petitioner as the current occupier of the suit property was not informed of the change of Voi Part Development Plan No. 49 of 4th October 1984 neither was the opinion of the public sought with regards to the said changes.*** ***64. Thus, the backdrop of all said and done, and while making an application of these set out legal principles for filing a Constitutional Petition, the Honorable Court is fully satisfied that the Petitioner herein has dutifully complied and met the threshold of reasonable precision in pleadings for instituting this Petition against the Respondents herein and pleading for the prayers sought.*** ***80. From all the evidence placed before the Court, there is no doubt the land belongs to the Petitioner. This evidence was never challenged nor controverted by the Respondents herein. The property is well safeguarded under the provisions of Article 40 (1) and (2) of the Constitution of Kenya, 2010. According to the Petitioner, the advertisement issued for allocation of plots in Voi did not include the suit property yet the District Plot Allocation Committee (1995) acting at the behest of the Commissioner for Lands went ahead and allocated the suit land which is public land to private individuals. The Petitioner being the current occupier of the suit property was not informed of the change of Voi Part Development Plan no. 49 of 4th October 1984 neither was the opinion of the public sought with regards to the said changes.*** ***99.The case of “Pastoli-Versus -Kabale District Local Government Council & Others [2008] 2 EA300”sets out the test to be applied for Judicial Review proceedings to succeed namely:*** ***“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with......illegality-is when the decision making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of a law or its principles are instances of illegality.*** ***Irrationality- is when there is such gross: unreasonableness in the decision taken or act done; that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision, such a decision is usually a defiance of logic and acceptable moral standards ...procedural impropriety is*** ***when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may being nonobservance of the rules of natural justice ...it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument.”*** ***100. I have also found that the National Land Commission had no power to revoke titles. Clearly, the provision of Article 68 of the Constitution and Section 14 of the National Land Commission Act limits the National Land Commission's power to carrying out an inquiry and determining the legality or propriety of a title or disposition in public land after which it can recommend to the Registrar for revocation. The NLC acted exceedingly and excessively ultra vires the law. The doctrine of ultra vires is one of the pillars in which Judicial Review was founded. It would be a serious abdication of jurisdiction and powers of this court if it were to shy away from issuing orders of certiorari when there is clear evidence of the National Land Commission blatantly exercising powers which is expressly following procedure is completely unlawful and illegally.*** ***107. Consequently, having intensively and thoroughly deliberated on all the framed issues herein, this Honorable Court arrives at the finding that the Petitioner herein has succeeded in all the prayers sought from its filed Petition. For avoidance of doubt, I allow the Petition dated 22nd February, 2022 specifically under the following terms:-*** ***THAT Judgment be and is hereby entered in favour of the Petitioner as per the Petition dated 29th January, 2016 in its entirety.*** ***a. THAT a Conservatory order be and is hereby issued restraining the Respondents, their agents, servants and or employees from encroaching on the suit land until the matter is heard and determined by the court.*** ***c. THAT an order of Judicial Review of Certiorari to remove into this Honorable court the letters of Allotment issued by the Commissioner for Lands to the private individuals over part of VOI PART DEVELOPMENT PLAN NO. 49 dated 4th October 2010 and quash them.*** ***d. THAT an order directed to the 2nd Respondent be and is hereby issued to immediately cause the survey of the suit land and proceed to issue a title deed to the Petitioner of the suit land.*** ***e. THAT a permanent injunction be and is hereby issued restraining the Respondent or any other party from interfering with the Petitioners ownership, occupation, use and interest over the suit land or otherwise from evicting or*** ***attempting to evict the Petitioners from the suit land or from issuing title deeds or in any other way alienating the Suitland other than to the Petitioners. f. THAT the costs and interest of the Petition dated 29th January, 2016 to be awarded to the Petitioner and be borne by the Respondents Jointly and severally. It is so ordered accordingly*** ***f. THAT the costs and interest of the Petition dated 29th January, 2016 to be awarded to the Petitioner and be borne by the Respondents Jointly and severally. It is so ordered accordingly.”*** 1. In the case of ***“Mombasa Misc Applm. No. 67 of 2020 Abdulraman – Versus – Chief Land Registrar, Mombasa”***, the Court held that: ***12. The effect of grant of an order of mandamus was considered in extenso in “Shah-Versus-Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where Goudie, J expressed himself, inter alia, as follows: “Mandamus is essentially English in its origin and development and it is therefore logical that the court should look or an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature... In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfillment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfillment...The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgment which has been rendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the applicant has very much of an interest in the fulfillment of that duty...Since mandamus originated and was developed under English law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by English law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign State, the Court is not bound by English law but the court considers the English decisions must be of strong persuasive weight and afford guidance in matters not covered by Uganda law...English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply in his capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a Mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties...With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile... It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in Section 29 (1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government....Whereas Mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a Mandamus is to go, then mandamus will go... In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the Government proposed to satisfy the applicant's decree. It Is sufficient for the duty to be owed to the public at large. The prosecutor of the writ of mandamus must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an Act of Parliament...In the court's view the granting of mandamus against the Government would not be to give any relief against the Government which could not have been obtained in proceedings against the Government contrary to section 15(2) of the Government Proceedings Act. What the applicant is seeking is not relief against the Government but to compel a Government official to do what the Government, through Parliament, has directed him to do. Likewise there is nothing in Section 20 (4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3),and is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment" but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. The fact that the Treasury Officer of Accounts is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore conferred to his Government employer. In mandamus cases it is recognized that when statutory duty is cast upon a Crown servant in his official capacity and the duty is owed not to the Crown but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. Whereas duty has been directly imposed by Statute for the benefit of the subject upon a Crown servant as persona designate, and the duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or an instrument of the Crown, the Courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the Crown, but the situations in which mandamus will not lie for this reason alone are comparatively few...Mandamus does not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory...On any reasonable interpretation of the duty of the Treasury Officer of Accounts under section 20 (3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as persona designate to act for the benefit of the subject rather than a mere agent of Government, his duty is clearly established and plainly defined, and the obligation to act is peremptory. It may be that they are answerable to the Crown but they are answerable to the subject...The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice... The issue of discretion depends largely on whether or not one should, or indeed can, look behind the judgment giving rise to the applicant's decree. Therefore an order of mandamus will issue as prayed with costs.”[Emphasis added].*** ***14. The circumstances under which judicial review order of mandamus are issued were set out by the Court of Appeal in “Republic – Versus -Kenya National Examinations Council ex parte Gathenji & 8 Others Civil Appeal No 234 of 1996, the Court of Appeal cited, with approval, Halsbury’s Law of England, 4th Edn.Vol.7p. 111 para 89 thus: “The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”*** ***19. In the premises, and having conducted an elaborate analysis of the framed issues, I hereby proceed to grant the following orders:*** ***a. That the Chamber Summons application dated 13th February, 2020 be and is hereby allowed.*** ***b. That an order of Mandamus be and is hereby issued directed and compelling the Chief Land Registrar, Mombasa Land Registry to issue to the Applicant with an official search in respect of the properties known as L.R No 750/mbsa-kizingo, L.R. No. Mombasa Mainland South/ block 11/51, Cr No:15101/1-nyali, L.r 2499-malindi Kilifi Title No C.r No 9674, L.r No. 7657-Malindi Kilifi, L.r No. 26212,Malindi Kilifi. & Title No C.r No 9674 indicating the particulars of the current registered owner and any encumbrances thereon.*** ***c. That the Applicant to be awarded the costs of the application.*** 1. Further in the case of ***“Mombasa – ELC Petition No. 209 of 2015 Geyser International Limited – Versus – Attorney General & 3 others”***, the Court held that:- ***145.Further, the Petitioner is also entitled to general damages as founded under the provision of Section 13 (1) of the Environment and Land Act No.19 of 2011 which gives this Court discretion to grant any orders it deemed it, including an award for damages. The provision reads as follows “In exercise of its jurisdiction under this Act, the Court (Environment and Land Court) shall have power to make any order and grant any relief as the Court deems it and just, including...compensation...award for damages.”*** ***150. In the long run, having intensively and thoroughly deliberated on all the framed issues herein, this Honorable Court arrives at the finding That:-*** ***a. That notwithstanding the provisions of Sections 133A and 133C of the Land Act, No. 6 of 2012 as Amended by the Land Value (Amendment) Act, 2019 which are couched in discretionary manner, this Honourable Court has Jurisdiction to hear and determine this Petition through the Further Amended Petition dated 6th February, 2019.*** ***b. That Judgment be and is hereby entered in favour of the Petitioner in terms of the Further Amended Petition dated 6th February, 2019 in its entirety with costs.*** ***c. That a declaration be and is hereby made That the Petitioner's rights to acquire and own property guaranteed under Article 40 of the Constitution of Kenya were breached by the 1st, 2nd, 3rd and 4th Respondents herein when they contravened the Government of Kenya, the 2nd Respondent and the 4th Respondent forcefully entered upon and/or otherwise commenced and/or implemented and/or carried out the intended construction of the Standard Gauge Railway on the suit property before prompt payment in full of just compensation was made by the Government of Kenya and/or the 3rd Respondent to the Petitioner.*** ***d. That a declaration be and is hereby made That the Petitioner's rights to fair administrative action guaranteed under the provision of Article 47 of the Constitution of Kenya, 2010 were breached by the 1st and 3rd Respondents was threatened and contravened when the Respondents continued with the implementation and/or commencement and/or construction of the Standard Gauge Railway project on the Petitioner's property before the 3rd Respondent had delivered its decision on the Petitioner's claim for compensation;*** ***e. That an order of Judicial Review in the nature of prohibition and/or otherwise a permanent injunction be and is hereby made prohibiting the Government of Kenya, the 2nd Respondent and the 4th Respondent and their employees, servants, agents, assigns, representatives, contractors from unlawfully entering upon and constructing and/or from demolishing, excavating, clearing, destroying or otherwise interfering in any way with the Suit Property namely, L.R No. Mainland North/Section VI/3892 before the Petitioner has been paid just compensation in full;*** ***g. That an order that the Petitioner be awarded general and exemplary damages at 5% of the principal sum arising from the delay in the payment of the award of compensation from the compulsory acquisition of the suit land.”*** 1. According to the Learned Counsel, in the year 2026, the Defendants stood before this Court with Admitted Lack of Possession and Admitted Lack of Title. Conversely, the Plaintiff stood with a State-Guaranteed Title, a record of compliance and demonstrated or proven illegalities/fraud. The legal status of the land was clear: the Plaintiff was the owner, and the Defendants was trespassers in contempt of Court. Guided by the above facts, evidence, the law and cited case laws, they humbly urged the Court to find that the Plaintiff/ Petitioner had a balance of probability proved its case and the same should be allowed as prayed in the Plaint and Petition with costs. The 1st Defendant’s Counter - Claim was not merited and ought to be dismissed with costs. 2. **The Written Submissions by the 1st Defendant** 3. The 1st Defendant through the Law firm of Messrs. Ochieng’ Ochieng’ Advocates filed their written submissions dated 9th June, 2026. Oluoch Advocate submitted that vide the Plaint herein dated 28th October, 2011 and filed herein on the same date, the Plaintiff prayed for Judgment against the 1st Defendant as above stated. 4. Vide the Amended Written Statement of Defence and Counter - Claim dated 14th June, 2012, as amended orally in Court (with leave of the Court) on 28/09/2023, the 1st Defendant denied the Plaintiff's claim as contained in the Plaint and Counter - Claimed as above stated. 5. In the Petition dated 18th March, 2013 and filed on 8th April, 2013, the Petitioner sought various prerogative orders against the Respondents with respect to the Registrar’s Gazette Notice Number 15570 dated 26th November, 2010 revoking the Certificates of Title over L.R. NNo. MN/III/2947 and L.R. No. MN/III/2948 held by the Petitioner (Plaintiff),including an order of certiorari. On 11th November, 2019, Hon. Justice Yano gave necessary directions on the description and numbering of the parties, the classification of pleadings filed by the Parties in the Petition, and the hearing of this matter as consolidated with the HC Petition 20/2013 - Msa. This matter came before the Court for hearing on 3rd October, 2022, when the Plaintiff’s case was heard. The Plaintiff called one Witness: Mr. Patrick Igadwa Inzira (PW - 1),who described himself as the Property Manager of the Plaintiff, stationed in Nairobi. 6. Adopting his witness statement titled 'Plaintiff's/Petitioner's Supplementary Witness Statement dated 29th September, 2022 and filed herein on 3rd October, 2022 as his evidence in chief, PW -1testified and produced the Plaintiff’s documents listed in the Copies of Documents to be Relied On at the Trial dated 28th October, 2011 as Plaintiff Exhibits No. 1 - 11and in the Plaintiff's Supplementary List of Documents dated 29th September, 2022 as Plaintiff Exhibit Numbers 12-17 (excluding the document listed as number 7 thereof which was not produced in Court) in support of the Plaintiff's case. The 1st Defendant’s case was heard on 19 June 2023. The 1st Defendant called one Witness: Mr. Finyange Pole (DW - 1). DW - 1 testified and adopted his averments sworn to in the Replying Affidavit of 28th November, 2011, together with the Annexures, his Witness Statement dated 7th December, 2011, and his Further Witness Statement dated 8th April, 2019 as his evidence-in-chief. 7. DW - 1 also adopted his sworn statements in the Replying Affidavit, sworn on 22nd April, 2015 and filed by the 1st Defendant as an Interested Party in the HC Petition No.20 of 2013 (herein consolidated) as his evidence-in-chief in opposition to the reliefs sought in the Petition. In support of the 1st Defendant’s Defence and Counter - Claim, DW - 1 produced the documents listed in the 1st Defendant’s Revised List and Bundle of Documents dated 8th April, 2019 as Defendant Exhibits Numbers 1-49. 8. The 1st Defendant also, on 3rd May, 2024, filed herein the Survey Report by Boma Surveys, pursuant to the leave granted to the Parties by the Honourable Court on 6th March, 2024, in support of its Defence and Counter - Claim. The 2nd Defendant’s case was heard on 28th September, 2023 and DW - 2, Ms. MERCY CHEPKEMOI, the Registrar of Titles, Mombasa, testified and adopted her Witness Statement dated 19th June, 2023 as her evidence-in-chief. She produced the documents listed in the 2nd Defendant’s List of Documents dated 20th May 2022 as Defendant Exhibit Numbers 50-60 in support of the 2nd Defendant’s defence to the Plaintiff’s claims herein. 9. The Learned Counsel relied on the following issues for determination from the Plaint herein dated 28th October, 2011, the Amended Written Statement of Defence and Counterclaim (as amended orally before the Court on 29th September, 2023, the Petition dated 18th March, 2013 and the Replying Affidavit by the 1st Defendant herein to the Petition, sworn on 22nd April, 2015:- 10. ***Whether the Suit Properties L.R. No. MN/III/2947 and L.R. No.MN/III/2948 are subdivisions of L.R. No. MN/III/1450 (original).*** 11. ***Whether the Suit Properties L.R. No. MN/III/2947 and L.R. No.MN/III/2948 were available for allocation to private persons, including the Plaintiff and its predecessors in title.*** 12. ***Whether the allocation of the Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 to the Plaintiff and or its predecessors in title thereof, respectively, were unlawful, illegal, and irregular and therefore null and void ab initio.*** 13. ***Whether the respective original allottees of the Suit Properties L.R. No.MN/III/2947 and L.R. No. MN/III/2948 acquired a good title/interest over the Suit Properties capable in law of being passed to the Plaintiff.*** 14. ***Whether the Plaintiff is an innocent purchaser of the two suit properties for value without notice.*** 15. ***Whether the 1st Defendant is entitled to the prayers sought in the Amended Written Statement of Defence and Counterclaim (as amended in Court on 28/9/2023 dated 14/06/2012*** 16. On the evidence before Court, the Learned Counsel submitted that PW-1 told the Court in his evidence in chief that L.R. NO. MN/III/2947 was initially allocated to Kisibet Investment Limited vide a letter of Allotment dated 9th May, 1995 and by a letter dated 29th November, 1995, Kisibet Investments Limited wrote to the Commissioner of Lands requesting the transfer of the allotment and issuance of the title in the name of Shirland Investments Limited which request was approved and the title registered as Grant No. I.R.28310 on 15th March 1996 in the name of Shirland Investments Limited for a term of 99 years from 1st May, 1995. Similarly, L.R. NO. MN/III/2948 was initially allocated to Pineapples Edge Limited vide a letter of Allotment dated 9th May, 1995 and by a letter dated 1st September, 1995, Pineapples Edge Limited wrote to the Commissioner of Lands requesting the transfer of the allotment and issuance of the title in the name of Hannover Holdings Limited, which request was approved and the title registered as Grant No. I.R 31659 on 22nd October, 1998 in the name of Hannover Holdings Limited for a term of 99 years from 1st May, 1995. 17. According to PW - 1, both titles were issued by the Government arm of the Ministry of Lands, namely the Commissioner of Lands, who had the power to allocate and alienate land for purposes he felt were required. The Plaintiff, in July 2010, purchased both suit properties for a total sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000/=) upon being given original documents by the Vendors and on 3rd August, 2010, was duly registered as the owner of the two properties. According to the PW - 1, they had never been shown ownership title documents of the 1st Defendant over the suit properties. 18. In cross-examination, PW - 1 told the Court that he never know the names of the directors of the Plaintiff Company. He also never know how many directors the Plaintiff had. He visited the suit properties a long time ago. He confirmed that the Plaintiff had not made any developments on the suit property and that the Plaintiff's workers lived on the two properties. PW - 1 also confirmed to the Court that the two Letters of Allotment in respect of the two suit properties was of the same date and are signed by the same person on behalf of the Commissioner of Lands. The Letters of Allotment were issued under the Government Lands Act, Cap. 280 (repealed). PW - 1 also confirmed to the Court that the Plaintiff did not conduct any background check on the suit properties before purchasing them. And neither was he familiar with the area where the suit properties are situated and he was not conversant with all the issues before the Court surrounding the property. According to PW - 1, the Plaintiff's directors must have been aware of the history of the suit properties. 19. The Plaintiff also filed herein a Survey Report dated 20th January, 2024 by Mr. Patrick Opiyo Odero. The Land Surveyor confirms in the report on page 2, that the 1st Defendant’s Ocean Front Land was “an unsurveyed Government land until the year 1990, when it was surveyed and numbered L.R. No. MN/III/1450 through the Survey Plan F/R No.202/171, and it measured 13.4 hectares. In the year 1994, MN/III/1450 was subdivided to create L.R. No. MN/III/2944-2948 (i.e into 5 portions, including access road).” 20. The 1st Defendant's Witness, DW - 1, in a sworn testimony, told the Court that the Kenya Agricultural and Livestock Research Organization (KALRO), the 1st Defendant’s legal successor, is the national premier public research organization established under the Kenya Agricultural and Livestock Research Act, No. 17 of 2013 and its statutory public mandate is to undertake promote, streamline, co-ordinate and regulate research in crops, livestock, genetic resources and biotechnology in Kenya. The Act also mandated KALRO to expedite equitable access to research information, resources and technology and promote the application of research findings and technology in the field of agriculture. 21. As per DW - 1's testimony, KALRO was a State corporation established as a body corporate with perpetual succession and a common seal under the Kenya Agricultural and Livestock Research Act, No. 17 of 2013, and has the capacity, among other things, to possess, use, and own movable and immovable property. KALRO is the successor of Kenya Agricultural Research Institute (KARI), the 1st Defendant herein, and under Section 54 of the Kenya Agricultural and Livestock Research Act, No. 17 of 2013, it acquired all funds, assets and other property; moveable or immovable, which were vested in the former institutions such as KARI and also acquires all rights, powers, liabilities and duties which were vested in the former research institutions immediately before the Act came into force. 22. It was further DW - 1's evidence that the 1st Defendant was established under the Science and Technology Act, Chapter 250 (repealed) of Laws of Kenya as a state corporation and it owned, ran, and operated the then KARI Mtwapa Research Centre having been operationalized fully by the Government of Kenya with effect from sometime in 1988. As a public institution, KARI was statutorily mandated to carry out research in agriculture and veterinary sciences and for these purposes, it owned, possessed and, or occupied about 75 parcels of land throughout Kenya including the parcel of land comprised in the two suit land, the subject of this suit, having inherited the same from the Research Department of the Ministry of Agriculture of the Government of Kenya following its establishment in the late 1970s through an Act of Parliament. 23. DW - 1 further told the Court that he was employed by the Government of Kenya in the Ministry of Agriculture, Research Division, in 1987 and was posted to Mtwapa, which was then known as the Coast Regional Research Center, which later became the KARI Coast Regional Research Centre as from year 1988. The Coast Regional Research Center was established in year 1958 or thereabouts under the Scientific Research Division of the Ministry of Agriculture and Livestock Development of the Government of Kenya. It was further DW - 1's testimony that the KARI Coast Regional Research Center - Mtwapa comprised, used, and or occupied three separate parcels of land, which were inherited from the Government of Kenya, Ministry of Agriculture, Research Division, at Mtwapa. One of the parcels, which was clearly marked in the Survey Maps around year 1989 as ‘GL (1),’ was at the Indian Ocean Front, measuring approximately 13.6 hectares, and on it were several houses, offices, and laboratories built by the Government and used by the public officers, then under the Ministry of Agriculture. The second parcel was measuring 5.5 hectares and was marked as ‘GL (II)’ on the survey map and was, by year 1989, partly occupied by a primary school. (see D-Exhibit-1 (the letter from the Mtwapa Research Center Director to the Director, KARI ) on page 1 of the Defendant's Revised List and Bundle of the Documents dated 8th April, 2019). 24. DW - 1 told the Court that the third parcel of land which was also used, possessed and occupied by KARI Coast Regional Research Center - Mtwapa was the research farm located opposite the Sea Front land on the other side of the Mombasa-Malindi Highway (see D-Exhibit - 23 (the letter from the KARI Mtwapa, Director on the draft valuation report of the Centre’s assets, buildings and civil works dated 30th July, 1992 and Defendant Exhibit Numbers 29 (Extract of the Valuation of Buildings and Civil Works of KARI of 1995 in respect of the KARI Mtwapa Regional Research Centre on Pages 35 - 37 and 44 - 54, respectively of the Revised Defendant's List and Bundles of Documents dated 8th April, 2019. According to DW - 1, KALRO currently owns, occupies, and uses this piece of land in Mtwapa in discharging its statutory public mandate, having been evicted from its Ocean Front land, two portions of which are the subject of this suit. 25. Further, it was DW - 1's testimony that since its establishment, the 1st Defendant was in occupation of the parcel of land the subject of this suit (ocean front land), as evidenced by Defendant Exhibit Number 29 (the Valuation Report), which parcel of land was at all material times Government land reserved for and used for agricultural research purposes and the 1st Defendant conducted research therein, and the land was developed with infrastructure including an administration block, guest house, laboratories, library and staff houses (see photos of the said Government buildings on pages 86-114 (Defendant Exhibit Numbers 37),authority to incur expenditure for maintenance of the buildings on page 34 (Defendant Numbers No. Exhibits - 22), Valuation Report at pages 44-54 (Defendant Numbers Exhibit 29) and electricity and water accounts for the buildings at pages 65 - 68 (Defendant Exhibit Numbers 33) of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019) Also refer to the Court Site (Suit Properties) Visit Report of 11th October, 2024 at pages 6-7 thereof whereby the Court confirmed the existence of the buildings. See also the Survey Report by Boma Surveys filed herein on 03rd May, 2024 by the 1st Defendant, annexes KLR - 14 and KLR - 18 thereof containing photos of the remnants of the buildings as read together with page 9 of the Report on ‘What structures and or developments exist on the suit properties.” 26. In his sworn testimony, DW - 1 further told the Court that by a letter dated 3rd May, 1990 (Defendant Exhibit Numbers 2 on pages 2-3 of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019), the then Permanent Secretary, Ministry of Research Science and Technology requested the Director, KARI to transfer a portion of its Ocean Front land, approximately 10 acres, to Kenya Marine and Fisheries Research Institute (KEMFRI) for its use. KARI agreed to the request for land for KEMFRI vide the letter dated 13th June 1990 (D-Exhibit -5 on pages 10-11 of the Revised 1st Defendant’s List and Bundles of Documents dated 8th April, 2019). 27. The issue of transfer of a portion of KARI's Ocean (two portions of which was the subject of this suit) front land to KEMFRI was captured in various correspondences between the two public institutions which are produced herein as Defendant Exhibits Numbers 2, 33, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 appearing on pages 2-33 of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019. 28. In furtherance of the proposed transfer of a portion of the 1st Defendant Ocean Front Land, then housing its administration block, laboratory, library and staff houses, DW - 1 told the Court, KEMFRI, by a letter dated 29th May, 1990 (Defendant Exhibit Number - 4 on pages 7-9 of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019),wrote to the Director of Surveys requesting for a survey and sub - division of the KARI Ocean Front Land for the purposes of registration of ownership by KARI and KEMFRI as agreed between them and issuance of Certificates of Title in the names of the two public bodies, and by a letter dated 5th March, 1991, the Director of Surveys wrote back to KEMFRI confirming that they had completed computation of the survey plan in respect of the Ocean Front Land (F/R No. 202/171) measuring approximately 13.42 hectares (see Defendant Exhibit Numbers 12 on page 21 of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019). The Survey Plan prepared by the Director of Surveys for the 1st Defendant’s Ocean Front Piece of Land had been produced in this Court and is contained in the Survey Report by Boma Surveys filed herein on 3rd May, 2024 by the 1st Defendant as annexure as KLR - 3. The Survey Plan shows on its face that it was received formally by the Director of Surveys on 16th July, 1990 and registered or authenticated on 1st March, 1991, and the Parcel of Land allocated L.R. No. MN/III/1450. 29. It was DW - 1’s evidence that by a letter dated 15th May, 1992 (see Defendant Exhibit Numbers 21 on page 33 of the Revised 1st Defendant’s List and Bundles of Documents dated 8th April, 2019), the then Commissioner of Lands confirmed having received a request from KEMFRI to facilitate and assist in the transfer of a portion of KARI’s Ocean Front Land, now L.R. No. MN/III/1450, to KEMFRI. By the said letter, the then Commissioner of Lands stated that he was unable to facilitate the proposed subdivision and transfer due to insufficient information being provided by KEMFRI. And the KARI Ocean Beach Front land L.R. No. MNN/III/1450 was therefore never sub - divided and transferred to KARI and KEMFRI as had been agreed between the two Government/Public bodies due to the failure of the then Office of the Commissioner of Lands to facilitate and process the same, and the 1st Defendant continued to occupy and use the entire piece of land in pursuit and discharge of its agricultural and livestock public research mandate. 30. The Learned Counsel further stated that DW - 1 told the Court that it had now emerged in these proceedings that while the Commissioner of Lands declined to facilitate and process the sub - division and transfer of the Ocean Front Government Land L.R. No. MN/III/1450, then occupied and used by 1st Defendant for its public mandate and purposes, to the two public bodies, namely KARI and KEMFRI, he had secretly and without knowledge, information and or consent of 1st Defendant, KEMFRI or the 1st Defendant’s parent Ministry (see Defendant Exhibit Number 34 (a complaint letter by KEMFRI) on page 69 of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019) caused the said parcel of land L.R. MN/III/1450 to be sub-divided into 5 pieces of land namely: L.R. NO. MN/III/2944- Mtwapa, L.R. NO. MN/III/2945- Mtwapa, L.R. NO. MN/III/2946-Mtwapa, L.R. NO. MN/III/2947- Mtwapa, and L.R. NO. MN/III/2948- Mtwapa and allocated each sub-division to private individuals, among them, the allottees/vendors who sold L.R. NO. MN/III/2947- Mtwapa and L.R. NO. MN/III/2948-Mtwapa to the Plaintiff herein (see Defendant Exhibit Number - 39 (the letter from Mtwapa Center Director to Director, KARI on the sub-division and allocation of the KARI Ocean Front Land L.R. No. MN/III/1450 to private individuals and the Survey Map of the Sub-Divisions) on pages 117- 118 of the 1st Defendant’s Revised List and Bundle of Documents dated 8th April, 2019). 31. It was further evidence of DW-1 that the Letters of Allotments in respect to the five subdivisions of the 1st Defendant's Ocean Front Land L.R. No. MN/III/1450, including the two suit properties herein, were issued to private individuals around May, 1995 by the then Commissioner of Lands (see Defendant Exhibit Number 30 (Letter of Allotment dated 9th May, 1995 to Kisibet Investments Limited for Sub - division L.R. No. MN/III/2947 -Mtwapa) on pages 55 - 59 and Defendant Exhibit Number 1 (Letter of Allotment dated 9th May. 1995 to Pineapple’s Edge Limited for Sub - division L.R. No. MN/III/2948 - Mtwapa) on pages 60 -62, respectively, of the 1st Defendant's Revised List and Bundle of Documents dated 8th April, 2019). 32. The Survey Report by Boma Surveys filed herein on 3rd May, 2024 by the 1st Defendant finds at page 7 that the Survey Plan F/R No. 270/7 (the Plan was attached to the Report as Annexure as KLR - 4) of the five sub - divisions of the 1st Defendant's Ocean Front Land L.R. No. MN/III/1450 was redrawn on 1st April, 1996(see the Plan) while the original survey plan (which was missing from the records of the Director of Surveys) was compiled on 1st September, 1994, approximately one year before the two Letters of Allotment to the suit properties were issued by the Commissioner of Lands to the allottees. The Survey Report further finds at page that the Survey Plan F/R No. 270/7 ***“failed to use existing/reference Survey Plan No. 202/171 (for L.R. No. MN/III/1450) due to intentional omission, commission or with intention defraud the Government/KALRO of the land.”*** 33. It was further evidence of DW - 1 that the Commissioner of Lands never invited any interested members of the general public to apply for allocation of the five sub - divisions of KARI Mtwapa Ocean Front Land L.R. No. MN/III/1450 through advertisement or a Gazette Notice, or radio announcement, and neither was the 1st Defendant consulted by the Commissioner of Lands on the intentions, plans, and decision to dispossess the 1st Defendant (by extension, the Government) and subdivide the land and allocate it to private persons. 34. DW - 1 informed the Court that the KARI Mtwapa Ocean Front Land L.R. No.MN/III/1450 was at all material times occupied and used by the first Defendant (KARI),a public state corporation established under an Act of Parliament, a fact that was known or ought to have been known by the Commissioner of Lands, given his letter dated 15th May, 1992 (see Defendant Exhibit Numbers 21 on page 33 of the Revised 1st Defendant’s List and Bundles of Documents dated 8th April, 2019) and the registration of the Survey Plan F/R No. 202/171 on 1st March, 1991 by the Director of Surveys and allocation of L.R. No.MN/III/1450 therefor and the said piece of land was not available for alienation by the Commissioner of Lands or any other entity in law, it being not an unalienated Government land. 35. DW - 1 told the Court that upon being allocated the five subdivisions of KARI Mtwapa Ocean Front Land L.R. No. MN/III/1450, the private individuals violently and forcefully evicted the 1st Defendant's staff, who are public officers, from the Ocean Front Land sometime in 1998 and did not even permit the removal of the Institute's moveable assets such as furniture and equipment despite the Director, KARI advising his staff to secure the same vide his letter dated 21st May 1998 (see Defendant Exhibit Number 32 on pages 63-64 of the 1st Defendant's Revised List and Bundle of Documents dated 8th April, 2019.) DW - 1 also testified that the 1st Defendant made an effort to have the issue addressed and to recover its land, being the Ocean Front Land L.R. No. MN/III/1450, including making representations to the Commission of Inquiry into Illegal/Irregular Allocations of Public Land, commonly known as the Ndungu Commission, around year 2003, and also lodged a complaint with the then Kenya Anti-Corruption Commission (KACC), which took up and conducted investigations into the matter. 36. Further, by a Ministerial Circular No. 16/2005 dated 29th June, 2005, the then Permanent Secretary, Ministry of Lands and Housing directed all Chief Executives of State Corporations, the 1st Defendant included, to take immediate steps to repossess all public land under their use and or occupation illegally and or unlawfully allocated to private individuals irrespective of whether or not the land has been developed (see Defendant Exhibit Number 35 on page 71-72 of the 1st Defendant’s Revised List and Bundle of Documents dated 8th April, 2019). 37. DW - 1 told the Court that in order to secure public interest and recover the illegally and unlawfully allocated 1st Defendant's public land to private individuals, the then KACC moved, in January, 2008, to ***“the High Court Mombasa in misc. application 27 of 2008 (OM) - Kenya Anti - Corruption Commission – Versus - Nathaniel Tum and Others”*** to seek preservation orders against all the allottees of the five sub - divisions of KARI's Ocean Front Land L.R. No. MN/III/1450 (see the Pleadings – Defendants Exhibits Numbers 36 and 37 on pages 73-114 of the 1st Defendant’s Revised List and Bundle of Documents dated 8th April, 2019) and by an Order given on 22nd January, 2008, two years before the Plaintiff purchased the two pieces of land in the year 2010, the Court issued a preservation order 'in respect of all that Property known as KARI Mtwapa Land Reference MN/III/2944,2945, 2946, 2947 and 2948 and any excisions/sub - divisions created therefrom and any other sub - division created in this title for six months.’ (See Defendant Exhibit numbers 36 on pages 115-116 of the 1st Defendant's Revised List and Bundle of Documents dated 8th April, 2019). 38. DW - 1 further told the Court that by a letter dated 8th October, 2010, the then KACC assured the 1st Defendant that it was still pursuing the issue of recovery of the KARI Mtwapa Ocean Front Land L.R. No. MN/III/1450, further to the Court proceedings filed before the High Court, Mombasa (see Defendant Exhibit Number 42 on pages 121-122 of the 1st Defendant’s Revised List and Bundle of Documents dated 08th April, 2019). In his evidence, DW - 1 told the Court that the efforts by the 1st Defendant to recover its Ocean Front Land L.R. No. MN/III/1450 illegally, unregularly and unlawfully sub - divided and allocated to private individuals by the Commissioner of Lands saw the Registrar of Titles- Mombasa, the 2nd Defendant, by the Gazette Notice Number 15570 published in the Kenya Gazette of 26th November, 2010, on behalf of the Government of Kenya, revoke the Certificates of Title it issued to the private individuals in respect of Mainland North/III/2944, Mainland North/III/2945, Mainland North/III/2946, Mainland North/III/2947, and Mainland North/III/2948, these being sub-divisions of KARI Mtwapa’s Ocean Front Land L.R. No. MN/III/1450 (see D-Exhibit - 45 on pages 125-127 of the 1st Defendant’s Revised List and Bundle of Documents dated 8th April , 2019). 39. In the said Gazette Notice, the 2nd Defendant confirmed that the said parcels of land were allocated and title issued to private individuals illegally and unlawfully when the same were reserved for Kenya Agricultural Research Institute for public purposes under the relevant provisions of the Constitution, the Government Lands Act, Cap. 280 and the Trust Land Act, Cap. 288. Contrary to the unsubstantiated evidence-in-chief of PW - 1 (who confirmed in cross-examination that he had never visited the suit properties and was employed by the Plaintiff in Nairobi), DW - 1 testified that the Plaintiff had made no developments on the suit properties, except a concrete wall surrounding the two properties being L.R. No. Mainland North/III/2947 and L.R. NO. Mainland North/III/2948. DW - 1 further informed the Court, and this evidence was unchallenged, that L.R. No. Mainland North/III/2947 and L.R. NO. Mainland North/III/2948, which are claimed by the Plaintiff herein, contained Senior Staff Houses, a Guest House, and Library (or remnants thereof) respectively, and the Plaintiff has assigned some people to stay in the said buildings. He told the Court that when he visited the land on 2nd December, 2018, he saw goats being kept on the said pieces of land. (see Photos taken by the then KACC in year 2008 and filed in “***the High Court, Mombasa in Misc. Application 27 of 2008 (OM) - Kenya Anti -Corruption Commission – Versus – Nathaniel Tum and Others”*** on pages 97, 98, 99,100, 101,102,103, 104, 105 and 106 of the Defendant's Revised List and Bundle of Documents dated 8th April, 2019. Also refer to the Court Site (Suit Properties) Visit Report of 11th October, 2024 at pages 6-7 thereof whereby the Court confirmed the existence of the buildings. See also the Survey Report by Boma Surveys filed herein on 3rd May, 2024 by the 1st Defendant annexes as KLR - 14 and KLR - 18 thereof containing photos of the remnants of the buildings as read together with page 9 of the Report on ‘What structures and or developments exist on the suit properties). 40. Further in his evidence-in-chief, DW - 1 also informed the Court that by a letter dated 20th January, 2011, the Director of KACC wrote to 1st Defendant giving notice of the revocation of the said Titles by the 2nd Defendant and directing the Institute to take physical possession of the said parcels of land forthwith (see Defendant Exhibit Numbers - 46 on pages 128 -129 of the 1st Defendant's Revised List and Bundle of Documents dated 8th April, 2019) and start processing the title, and it was upon the 1st Defendant commencing action in compliance with this direction that the Plaintiff filed this suit in the year 2011 (see Defendant Exhibit number 47 on pages 130 - 133 of the 1st Defendant's Revised List and Bundle of Documents dated 8th April, 2019). 41. The 2nd Defendant, through DW - 2, confirmed to the Court in her evidence-in-chief that the Certificates of Title, including the ones issued to the Plaintiff herein, in respect of the five (5) Sub - Divisions of the 1st Defendant's Ocean Front land L.R. No. MN/III/1450 were revoked by the 2nd Defendant vide the Gazette Notice Number 15570 published in the Kenya Gazette of 26th November, 2010, and the reason for the revocation was that the subject pieces of land were public land reserved for agricultural research by the 1st Defendant. In cross - examination, DW - 2 confirmed that the Letters of Allotment in respect of the two suit properties were issued by the then Commissioner of Lands under the Government Lands Act, Cap. 280 and that under the Grants issued to the Plaintiff, the Lessor was the Government of Kenya. DW-2 also confirmed to the Court that the 2nd Defendant had never been served with any Court order nullifying the Gazette Notice revoking the Certificates of Title over the suit properties. 42. In re - examination, DW - 2 confirmed that the impugned Letters of Allotment dated 9th May, 1995 contain L.R No. MN/III/2947 and L.R. No. MN/III/2948, respectively, contrary to the lawful procedure, as L.R Numbers are procedurally issued by the Director of Surveys following registration of survey plans, which are and can only be undertaken based on Letters of Allotment with approved Part Development Plan (PDP) issued by the Commissioner of Lands. Allotment Letters ordinarily never contain L.R Numbers. 43. On the submissions on the issues for determination. The Learned Counsel on the issue of whether the suit Properties L.R. No. MN/III/2947 and L.R. No.MN/III/2948 were sub - divisions of L.R. No. MN/III/1450 (original) submitted that uncontroverted evidence before the Court showed that as of the year 1990, the 1st Defendant was occupying and using the entire Ocean Front Land, now L.R. No.MN/III/1450, measuring approximately 13.40 hectares. On the land were the 1st Defendant's administration block, laboratory, library, and staff houses. The land then was unsurveyed until the process of and survey were triggered by a letter dated 3rd May, 1990 (Defendant Exhibit Number 2 on pages 2-3 of the Revised Defendant's List and Bundles of Documents dated 8th April, 2019) by the then Permanent Secretary, Ministry of Research Science and Technology requesting the Director, KARI to transfer a portion of its Ocean Front land, approximately 10 acres, to Kenya Marine and Fisheries Research Institute (KEMFRI), for its use. The 1st Defendant agreed to the request for land for KEMFRI vide the letter dated 13th June, 1990 (Defendant Exhibit Number 5 on pages 10-11 of the Revised Defendant's List and Bundles of Documents dated 8th April, 2019). Following this concurrence, KEMFRI, by a letter dated 29th May, 1990 (Defendant Exhibit Numbers 4 on pages 7-9 of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019), wrote to the Director of Surveys requesting for a survey and subdivision of the KARI Ocean Front Land for the purposes of registration of ownership by KARI and KEMFRI as agreed between them and by a letter dated 5th March, 1991, the Director of Surveys wrote back to KEMFRI confirming that they had completed computation of the survey plan in respect of the Ocean Front Land (F/R No. 202/171) measuring approximately 13.42 hectares (see D-Exhibit - 12 on page 21 of the Revised 1st Defendant's List and Bundles of Documents dated 8th April, 2019). This Survey Plan, prepared by the Director of Surveys for the 1st Defendant’s Ocean Front Piece of Land, has been produced in this Court and is contained in the Survey Report by Boma Surveys filed herein on 3rd May, 2024 by the 1st Defendant as annexure as “KLR – 3”. The Survey Plan showed on its face that it was received formally by the Director of Surveys on 16th July, 1990 and registered or authenticated on 1st March, 1991, and the Parcel of Land allocated L.R. No. MN/III/1450. 44. The evidence before the Court establishes that in furtherance of his impugned unlawful, illegal, and irregular actions, the then Commissioner of Lands caused the said parcel of land L.R. MN/III/1450 to be surveyed and sub - divided into 5 pieces of land, namely: L.R. NO. MN/III/2944- Mtwapa, L.R. NO. MN/III/2945- Mtwapa, L.R. NO.MN/III/2946- Mtwapa, L.R. NO. MN/III/2947- Mtwapa, and L.R. NO. MN/III/2948 -Mtwapa and the Commissioner of Lands allocated each sub - division to private individuals, among them the allottees/vendors who sold L.R. NO. MN/III/2947-Mtwapa and L.R. NO. MNN/III/2948 - Mtwapa to the Plaintiff herein (see Defendants Exhibit Numbers 39 (the letter from Mtwapa Center Director to Director, KARI on the sub - division and allocation of the KARI Ocean Front Land L.R. No. MN/III/1450 to private individuals and the Survey Map of the Sub - Divisions) on pages 117- 118 of the 1st Defendant's Revised List and Bundle of Documents dated 8th April, 2019). 45. The Survey Report by Boma Surveys filed herein on 3rd May, 2024 by the 1st Defendant finds at page 7 that the Survey Plan F/R No. 270/7 ( the Plan was attached to the Report as Annexure as “KLR – 4”) of the five subdivisions of the 1st Defendant's Ocean Front Land L.R. No. MN/III/1450 was redrawn on 1st April, 996 (see the Plan) while the original survey plan (which was missing from the records of the Director of Surveys) was compiled on 1st September, 1994, approximately one year before the two letters of allotment to the suit properties were issued by the Commissioner of Lands. 46. According to the Learned Counsel, it was noteworthy that the Plaintiff's Surveyor, Mr. Patrick Opiyo Odero, through his Survey Report filed herein and dated 20th January, 2024, confirmed on page 2 thereof, that 1st Defendant's Ocean Front Land was “an unsurveyed Government land until the year 1990 when it was surveyed and numbered L.R. No. MN/III/1450 through the Survey Plan F/R No. 202/171, and it measured 13.4 hectares. In the year 1994, MN/III/1450 was subdivided to create L.R. No. MN/III/2944-2948 (i.e into 5 portions, including access road). 47. Therefore, they submitted that the evidence before the Court establishes that the Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 were sub - divisions of L.R. No. MN/III/1450 (original), which was occupied and used by the 1st Defendant before being sub - divided and portions thereof allocated to private persons, including the Plaintiff and its predecessors in title. 48. On whether the Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 were available for allocation to private persons, including the Plaintiff and its predecessors in title. The Learned Counsel submitted that the land in dispute, L.R. No. MN/III/1450, measuring approximately 13.4 hectares was a public land as provided under the provision of Article 62(1)(b) of the Constitution. The 1st Defendant herein (and by extension, its legal successor, the Kenya Agricultural and Livestock Research Organization (KALRO)), being a public entity (this was not in dispute and is a common fact) mandated to carry out research in agriculture and veterinary sciences, used the land and had always used the land for the purpose for which it was reserved, that was, agricultural and livestock research, from the year 1960s through its predecessors in title and itself (this reservation was confirmed by the 2nd Defendant in the Gazette Notice Number 15570 published in the Kenya Gazette of 26th November, 2010 – Defendant Exhibit Number 45 on pages 125 to 127 of the 1st Defendant’s Revised List and Bundle of Documents dated 8th April, 2019). Being a public entity, the 1st Defendant owned the suit land and the buildings and facilities developed thereon by the Government of Kenya on behalf of the Kenyan public. 49. To this end, the Learned Counsel associated themselves with the averments of Waki, J. (as he then was) as he rightly stated in the case of ***“Niaz Mohamed Jan Mohamed – Versus - Commissioner for Lands & 4 Others [1996] eKLR”*** (copy attached) that land acquired/reserved for a public purpose cannot be alienated, transferred or used in any other way than for the public purpose. The 1st Defendant's Ocean Front Property L.R. No. MN/III/1450 or any sub - division thereof cannot, in law, be alienated for any other public purpose or private purposes, including building of shops, offices, or flats as provided for in the Letter of Allotment dated 9th May, 1995, condition number five (see the DD-Exhibit-30 at page 57 of the 1st Defendant's Revised List and Bundle of Documents dated 8th April, 2019). 50. The provision of Article 62 (1)(b) of the Constitution defines ‘Public Land’ as land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as a lessee under a private lease. It is a fact, which is not disputed, that the 1st Defendant (and its current legal successor, KALRO) is a public State corporation established under the Kenya Agricultural and Livestock Research Act, No. 17 of 2013. The Act gives the 1st Defendant (KALRO) the mandate to promote, streamline, coordinate, and regulate research in crops, livestock, genetic resources, and biotechnology in Kenya and expedite equitable access to research information, resources, and technology to the Kenyan Public. Accordingly, any piece of land in Kenya held, used, or occupied by the 1st Defendant (KALRO), include the main suit property was public land. 51. It was the 1st Defendant’s case in the Counter - Claim herein, which case had been established before this Court by evidence herein that ***“... At all times material to this suit, all that parcel of land known as Land Ref. No. MN/III/1450 measuring approximately 13.40 hectares was the property of the 1st Defendant, a public institution, which had been in continuous occupation of the said parcel of land either by itself or its predecessors in title since 1923 or thereabouts.***” Evidence before the Court establishes that the then Commissioner of Lands purported to sub - divide, allocate, and issue Grants over the said parcel of land, L.R. No. MN/III/1450 (original) into 5 plots, namely L.R. Nos. MN/III/2944, 2945, 2946, 2947, and 2948 without the knowledge, consent, approval, and or acquiescence of the 1st Defendant, which had possession thereof and was in occupation. 52. There was, before the Court, uncontroverted evidence of possession, use, and occupation of the parcel of land known as Land Ref. No. MN/III/1450 measuring approximately 13.40 hectares, by the 1st Defendant and its predecessors. In fact, the remnants of the Government buildings and staff houses belonging to the 1st Defendant still existed on the piece of land to date. Indeed, the Plaintiff was housing its caretakers/servants in two ( 2 ) of the buildings erected by the Government/1st Defendant on the two suit properties. The evidence before the Court is that the Plaintiff’s caretakers are keeping goats and other livestock thereon and are living therein. 53. They asserted that the allocation of the portions of the 1st Defendant’s Ocean Front Land being L.R. No.MN/III/1450 to private persons, including the Plaintiff herein and its predecessors in title, the survey and sub - division thereof into five ( 5 ) portions and the making of the Grants to the private persons, including the to the Plaintiff/its vendors, by the then Commissioner of Lands and Registrar of Titles was illegal, ineffectual, erroneous, and ultra vires the statutory powers of the Commissioner of Lands as the piece of land, two portions of which were the subject of this suit, was at all material times in the possession, occupation and use of the 1st Defendant, having at all material times been and remained reserved public agricultural and livestock research purposes and accordingly was not an unalienated Government (public) land, in law. 54. Under the law, use and or occupation of land by a state corporation/government entity/body establishes ownership rights thereon and reservation for use by such government/public body in the Lands Records combined with actual occupation and use thereby renders such land alienated public land not available for allocation to and acquisition by any third party, including third party private entities such as the Plaintiff. This legal position was reiterated in the case of ***“Kalro – Versus - County Government of Kitui [2019] eKLR”***, where it was held thus: ***“30. Indeed, Article 62(1)(b) of the Constitution, just like the repealed Constitution, does not require a public body or State organ to have a title for the land it is using or occupying to prove ownership of the same. All that a State organ is supposed to prove is that it is “lawfully holding, using or occupying” land except in a situation where it has leased the land from a private person.”*** 1. They submitted that the use and or occupation of the Ocean Front Land, being L.R.No.MN/III/1450, by the 1st Defendant and its predecessors, establishes ownership rights thereon and renders the land an alienated public land not available for allocation to or acquisition by any third party, including third-party private entities such as the Plaintiff. They further submitted that the Ocean Front Land, being L.R. No.MN/III/1450 was an alienated Government land even under the then-applicable substantive law, which has since been repealed. The Allotment Letters for the two suit properties were issued by the then Commissioner of Lands under the Government Lands Act, Cap. 280 (GLA)(repealed), while the Grants were issued under the Registration of Titles Act, Cap.281(repealed). The GLA, in Section 2 defines ‘unalienated’ Government land to mean:- **“Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment.”** 2. In the case of:- ***“Kenya Anti-Corruption Commission – Versus - Frann Investments Ltd & 6 Others [2020]eKLR”***, Justice S. Munyao (as he then was) held and expanded the definition of 'unalienated' Government land in section 2 of the GLA at paragraph 39 of the decision to include ***“... where Government land had been specifically assigned for a specific public purpose, then so long as the public purpose remains, that land ought to be considered to be part of Government land that cannot be alienated to private individuals for private use.”*** The Learned Judge further observed that:- ***“... it is a fact that historically, not all Government land had been titled. Probably the Government was easy that because such land was under its use or has been assigned a public use, then nobody is going to tamper with it. But does it mean that because the Government has not issued an allotment letter to such land, to say a Government parastatal or Government Department, and has not issued a title to the body that is supposed to make use of the land, then the said land can be allocated to private individuals for private use? I do not think so. If this were to be the position, then developed infrastructure, including roads, hospitals, schools, and even courts, could be allocated to private individuals simply because no allotment letter or title had been issued. People would literally loot and grab all public infrastructure. Let us take the example of a court. If there is a survey map or a PDP that provides that certain land has been set aside by the Government for building a court, and a court is so built, but no allotment letter or title is issued to the judiciary, can a person now be allotted that land and hold a private title to it for his own private use? I think that result would be absurd, and I do not think that this was the purpose of the law when it defined what “unalienated Government land" is under the GLA.”*** 1. The Learned Judge then held (in the above case) at Paragraph 40 that: ***“... so long as land had, or has been, set aside by the Government for specific use, which is apparent from the pertinent records, including survey plans and or PDPs, or visible on the ground, then that land must be considered to be part of “alienated Government land.”*** 1. According to the Learned Counsel, the evidence before this Court, including the Survey Plan No. F/R 202/171, the Extract of the Valuation Report of the 1st Defendant Buildings and Civil Works at its Mtwapa Research Centre, the photos of the 1st Defendant’s buildings taken in 2008 and later, the Survey Report of Bomas Surveys filed herein by the 1st Defendant, the Court Site Visit Report and DW-1' s oral sworn testimony before the Court prove to the applicable standard that the Ocean Front Land, being L.R. No.MN/III/1450, the subject of this suit, had been set aside by the Government for public agricultural/livestock research purposes, in line with the 1st Defendant’s statutory mandate, rendering the land an alienated Government land. Moreover, this reservation is confirmed by the 2nd Defendant in the Gazette Notice Number 15570 published in the Kenya Gazette of 26th November, 2010 – Defendant Exhibit Numbers 45 on page 125 - 127 of the 1st Defendant’s Revised List and Bundle of Documents dated 8th April, 2019). 2. The law now recognizes that land used and or occupied by state corporations and or statutory bodies, such as the Ocean Front Land, being L.R.No.MN/III/1450 was public (Government) land. Thus, the provision of Section 10 of the Land Act, No. 6 of 2012 provides that the National Land Commission shall prescribe guidelines for the management of public land by all public agencies, statutory bodies, and state corporations in actual occupation or use of public land. 3. In the case of ***“Kenya Industrial Estates Limited – Versus - Anne Chepsiror & 5 Others (2015) eKLR”***, Hon. Justice M. Sila (as he then was) at paragraph 52 thereof, captured the rationale and the essence of public land thus: ***“There is a reason why the Government holds certain land and does not give it away to private individuals. There is also a reason why the Government assigns certain land to its own institutions. These institutions could be State Corporations, Schools or other educational institutions or hospitals. Such land is meant for use by the public. It could be land for recreational purposes, or land reserved for a school or hospital, or road, or for research purposes, or to maintain a forest.”*** 1. As was held by Justice Munyao Sila in the above case at paragraph 55 thereof, and by parity of reasoning, the 1st Defendant (now KALRO) herein was a public body fully owned by the National Government of Kenya and holds, occupies and possesses the suit property for its public purposes under the Kenya Agricultural and Livestock Research Act, No.17 of 2013. KALRO has the statutory mandate to promote, streamline, co - ordinate, and regulate research in crops, livestock, genetic resources, and biotechnology in Kenya; to expedite equitable access to research information, resources, and technology for the public; and to promote the application of research findings and technology in agriculture in Kenya. These were, no doubt, public functions whose discharge requires the occupation and use of land. 2. Therefore, it was clear and evident that all land, including the suit property herein, the Ocean Front Land, being L.R. No.MN/III/1450, held, used, or occupied by the 1st Defendant (now KALRO), could not be claimed, alienated, or acquired by the Plaintiff, a private entity, without following due process and in strict compliance with the applicable laws governing compulsory acquisition of public land. The said land was, for all intent and purposes, an alienated Government land. 3. They also relied on the case of:- ***“Ethics and Anti-Corruption Commission (EACC) – Versus - Edward Mwangi Irungu & 3 Others [2024) eKLR”***, in support of the foregoing submissions, where the Court held (at page 4) that where there was clear evidence of allocation of Government land for public use, such property could not be said to be unalienated Government land available for allocation to private persons. It was therefore their respectful submission that the suit Property L.R. No. MN/III/1450 or any portion of it, including L.R. No. MN/III/2947 and L.R. No. MN/III/2948, was in law, not available for allocation to private persons, including the Plaintiff and its predecessors in title by the Commissioner of Lands. 4. On whether the allocation of the Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948, being portions of L.R. No. MN/III/1450, to the Plaintiff and or its predecessors in title thereof, respectively, were unlawful, illegal and irregular, in any event. The Learned Counsel asserted that in the alternative and purely without prejudice to the foregoing submissions, that the allocation of and issuance of the Grants over the two Suit Properties, L.R. No. MN/III/2947 and L.R. No. MN/III/2948, being portions of L.R. No. MN/III/1450, to the Plaintiff and or its predecessors in title thereof, respectively, by the then Commissioner of Lands, were unlawful, illegal, and irregular, and accordingly, the actions and certificates of title issued are null and void ab initio. The Letter of Allotment dated 9th May, 1995 Ref. No. 75892/XVI for L.R. No. MN/III/2947 to Kisibet Investments Limited and the Allotment Letter dated 9/5/1995 Ref. No. 75892/XVI for L.R. No. MN/III/2948 to Pineapples Edge Limited (see the Defendant Exhibit Number 30 at pages 55 to 59 and Defendant Exhibit Number 31 at pages 60 to 62, respectively, of the 1st Defendant’s Revised List and Bundle of Documents dated 8th April, 2019) were both issued by the then Commissioner of Lands and signed for him by one S.M. Kagwi. 5. Similarly, the Grant Number CR. 28310 for L.R. No. MN/III/2947 and the Grant Number CR. 31659 for L.R. No. MN/III/2948 (see the Plaintiff Exhibits Numbers 7 and 2, respectively) were both signed by the then Commissioner of Lands on 7th May, 1996 and 17th September, 1998, respectively, allegedly by order of the then President of the Republic of Kenya. It was noteworthy that on their face, the Grants were by the PRESIDENT OF THE REPUBLIC OF KENYA to the Lessee. 6. The Learned Counsel submitted that the process and procedure for allocation of unalienated Government land was provided for in the provision of Section 3 as read together with Sections 7, 12 and 13 of the GLA (repealed). As was correctly observed, noted, and held by Brother Justice S.Munyao (as he then was) in the case of ***“Kenya Anti-Corruption Commission – Versus - Frann Investments Ltd & 6 Others [2020]eKLR”***, the institution that had the power to allocate unalienated Government land was the President of the Republic of Kenya under the provision of Section 3 of the GLA. Under Section 3 of the GLA, the Commissioner of Lands could exercise some delegated powers on behalf of the President, limited only to grants for religious, charitable, educational, or sports purposes or such other uses as defined under the provision of Section 3 of the GLA. The Commissioner of Lands had no delegated power under the GLA, and indeed, under Section 3 thereof, to allocate to a private individual (the Plaintiff), in his discretion (as he did in this Suit) any unalienated Government land, including the piece of land, the subject of this suit, to put up private offices, shops and residential buildings (see the Conditions in the Letters of Allotment and the Grants in respect of the two suit properties herein). It follows, therefore, that the allocation of the Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948, being portions of L.R. No. MN/III/1450, to the Plaintiff and or its predecessors in title, was unlawful, illegal, and irregular. 7. The Learned Counsel contended that the two suit properties herein, L.R. No. MN/III/2947 and L.R. No.2948, were allocated to the Plaintiff/Allottees/Vendors by the then Commissioner of Lands to put up private offices, shops and private residential buildings (see the Conditions in the Letters of Allotment and the Grants in respect of the two suit properties produced in Court). This purpose does not fall within the allocation purposes that the President may delegate his power of allocation of public land to the Commissioner of Lands. 1. The evidence before the Court showed two Grants for the two suit properties, and the Allotment Letters were not issued by the President. They submitted that they could not be issued by the Commissioner of Lands, as he purported to do, under delegated authority, in any event, as the purposes of the allotments and the grants did not fall under the categories of allocations and grants provided for under the provision of Section 3 of the GLA for which the Commissioner of Lands could allocate and issue respectively. Therefore, it follows that the purported allocation and grants of title in respect of the two suit properties by the Commissioner of Lands was illegal, null and void. See the holding of the Court in the case of ***“Technology Investments Limited & 3 Others – Versus - Patel & 2 Others [2023] KEELC 16641 (KLR)”***, Paragraphs 32-36, on which they relied herein. 2. Moreover, the Plaintiff, the Allottees/Vendors of the Suit Properties L.R. No.MN/III/2947 and L.R. No. MN/III/2948, being portions of L.R. No. MN/III/1450, and the Commissioner of Lands never followed the procedure as was provided for in the GLA in being allocated and issued with Grants over the two pieces of land, even assuming that the piece of land, the subject of this suit, was unalienated Government land, which it was not, as they had shown in the foregoing submissions. 3. The provision of Section 12 of the GLA (repealed) provides that: **“... Leases of town plots shall, unless the President otherwise orders in any particular case or cases, be sold by public auction.”** 1. The provision of Section 13 of the GLA (repealed) then provides that: **“.. The place and time of sale shall be notified in the Gazette not less than four weeks nor more than three months before the day of sale and the notice shall state - a) the number of plots and the situation and area of each plot; b) the upset price at which the lease of each plot will be sold; c) the amount of survey fees and the cost of the deeds for each plot; d) the term of the lease and the rent payable in respect of each plot; and e) the building conditions and the special covenants, if any, to be inserted in the lease to be granted in respect of any plot....”** 1. The Court in the case of ***“Technology Investments Limited (Supra)”*** at paragraph 33, held that:- ***“Sections 12 and 13 of the GLA (repealed) required that where a Government land/plot was to be allocated to private persons/the public, then unless otherwise ordered by the President, such plot/land had to be sold by public auction and the sale would take place after Gazettement.”*** 1. In this suit, the Plaintiff had failed to adduce any evidence of approval by the President voiding the sale of the two suit properties by public auction as required under the provision of Section 12 of the GLA (repealed), and neither was there any evidence of Gazettement or sale by public auction in compliance with the provision of Section 13 of the GLA (repealed). They submitted that this failure to prove compliance with the provision of Sections 12 and 13 of the GLA (repealed) rendered the Grants issued and held by the Plaintiff over L.R No.MN/III/2947 and L.R. No. MN/III/2948 null and void ab initio. 2. Further, in the case of ***“Dina Management Ltd – Versus - County Government of Mombasa & 5 Others [2023] KESC 30 (KLR)”***, the Supreme Court adopted and reiterated the holding in the case of ***“Nelson Kazungu Chai & 9 Others – Versus - Pwani University [2014]eKLR”***, where it was held that: ***“ ... It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister for Lands before any unalienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved PDP is then issued to the allottees.*** ***[131] It is only after the issuance of the letter of allotment and compliance with the terms therein that a cadastral survey can be conducted for the purpose of issuing a certificate of lease. ... The process was also restated in the case of African Line Transport Co. Ltd – Versus - Attorney General, Mombasa HCCC No. 276 of 2013 where Njagi J held as follows: “Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with*** ***a definite number. These are taken to the Department of Survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot. [132]A Part Development Plan (PDP) can only be prepared in respect of Government land that has not been alienated or surveyed...”*** 1. And in the case of ***“Ethics and Anti-Corruption Commission – Versus - Shaibu Hamisi Mgandi & 3 Others [2025] eKLR”***, Justice S.M. Kibunja held (at pages 17-18) that:- ***“begins with a letter of application for the plot. A PDP is then prepared by the office of the Director of Physical Planning and circulated to the various local stakeholders, including the authorities such as the defunct District Commissioner, Clerk to the Local Authority, District Surveyor, Lands Office, among others. The next step was for the draft PDP to be forwarded to the Commissioner of Lands with the stakeholders’ comments for approval, after which it was returned to the Director of Physical Planning to be given a reference number.”*** 1. According to the Learned Counsel, the evidence before the Court established that the above mandatory procedure for alienation of ‘unalienated Government land’ was not complied with by the Plaintiff and or the Allottees/Vendors of Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948, being portions of L.R. No. MN/III/1450. No application letter for allocation of either of the two suit properties by either of the two Allottees (Kisibet Investments Limited and Pineapple’s Edge Limited) was produced before the Court. No PDP was prepared for either of the two suit plots. Indeed, no PDP for either of the two plots allocated to the Allottees was placed before this Court. The effect was that the two Allotment Letters for the two suit properties issued to Kisibet Investments Limited and Pineapple's Edge Limited were not based on any approved PDP and were thus untenable and therefore null and void. 2. The Learned Counsel asserted that the importance of a PDP in connection to alienation of unalienated Government land was underscored in the case of ***“Technology Investments Limited (Supra) (Supra)”***, at paragraphs 38. The Court observed thus:- ***“...the experts who testified herein held consensus that whatever land was to be allotted needed to be described in a PDP. It is this that would guide a surveyor on what land to go to and survey for purposes of creation of a title.”*** 1. Further, the Commissioner of Lands caused a sub - division of the main suit property being L.R. No. MN/III/1450 into 5 plots and a cadastral survey thereof through Survey Plan No. 270/7 in 1994, and a redrawing of the Survey Plan in year 1996 for the purposes of issuing Certificates of Titles without an approved PDP for each of the sub - divisions in blatant breach and disregard of the mandatory procedure under the GLA. 2. It was also noteworthy that contrary to the enumerated mandatory procedure above, the two impugned Letters of Allotment were issued on 9th May, 1995, one year after the Commissioner of Lands caused a sub - division of the main suit property being L.R. No.MN/III/1450 into 5 plots and a cadastral survey thereof through Survey Plan No. 270/7 in the year 1994 and the 5 plots allocated L.R. Nos. 2944 - 2948. Under the mandatory procedure, planning comes first, then surveying follows, whereupon the land reference number was given. This anomaly was confirmed and was the reason why the two impugned Letters of Allotment had L.R. Nos. MN/III/2947 and MN/III/2948 on their faces. The Commissioner of Lands allocated surveyed plots with L.R. numbers instead of unsurveyed plots, contrary to the lawful procedure 3. The Learned Counsel submitted that the evidence before the Honourable Court showed clearly that the Commissioner of Lands, in collusion with the privately sourced and or identified allottees of the two suit properties, circumvented the formal mandatory procedures and the law in issuing the Allotment Letters over the two L.R. No. MN/III/2947 and L.R. No. MN/III/2948,being portions of L.R. No. MN/III/1450. 4. Therefore, they averred that the allocation of the Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948, being portions of L.R. No. MN/III/1450, to the Plaintiff and or its predecessors in title, respectively, were unlawful, illegal and irregular, in any event and the Grants issued therefor were null and void *ab* *initio.* 5. On whether the respective original allottees of the Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 acquired a good title/interest over the Suit Properties capable in law of being passed to the Plaintiff. The Learned Counsel posited that having established and shown in the foregoing that (i) the Commissioner of Lands’ purported alienation and allocation of the two suit properties to Kisibet Investments Limited and Pineapple's Edge Limited was unlawful, illegal and irregular for want of legal authority and, or power, and (ii), in any event, the mandatory procedure for alienation of unalienated Government land under the GLA was blatantly breached and circumvented by the Commissioner of Lands and the Allottees, it followed that the Allottees, Kisibet Investments Limited and Pineapple’s Edge Limited, never held any good title/interest in the two properties at any one time and accordingly had nothing to transfer to the any third party, including the Plaintiff herein. 6. The titles acquired by Kisibet Investments Limited and Pineapple’s Edge Limited over the two suit properties, respectively, were tainted with illegality from the outset and remained null and void ab initio. They got support hereto in the decisions in ***“Kenya Anti-Corruption Commission – Versus - Frann Investments Ltd & 6 Others [2020] eKLR”***, ***“Ethics and Anti-Corruption Commission (EACC) – Versus - Edward Mwangi Irungu & 3Others [2024) eKLR”*** and ***“Ethics and Anti-Corruption Commission – Versus - Shaibu Hamisi Mgandi & 3 Others [2025] eKLR”***, on which they fully relied on. 7. The evidence before the Court established that the Plaintiff herein was not an innocent purchaser of the two suit properties for value, without notice of the illegality and unlawfulness of the interest/title held by the vendors and their predecessors in title. The Plaintiff, because of the challenge by the 1st Defendant of the two Grants of Title it was holding over L.R. No. MN/III/2947 and L.R. No. MN/III/2948, waves the defense of ‘indefeasibility of title’ and thereby sought to fall back on the doctrine of ‘innocent purchaser for value without notice’ with a view to salvaging the two titles from being revoked by this Honorable Court, despite their illegality. But the Supreme Court had since pronounced itself authoritatively and with finality on the question of indefeasibility of title in circumstances where a title was called into question on the basis of its legality (see the case of ***“Harcharan Singh Sehmi & Another – Versus - Tarabana Company Ltd & 5 Others [2025] eKLR”***, paragraph 66). In this case, the Supreme Court reiterated that: ***“68. Upon repeal of the Registration of Titles Act, the effect of registration are now governed by Section 26 of the Land Registration Act No. 3 of 2012 which provides that a Certificate of Title is a prima facie evidence that the persons named as proprietor of the land is the absolute and indefeasible owner and permits challenge of such title on the grounds of fraud, misrepresentation and or illegality, breach of procedure and or corruption. “This draws from Article 40(6) of the Constitution that the right to property does not extend to any “property that has been found to have been unlawfully acquired.”*** 1. The Supreme Court further held that: ***“69. It is important to take note of the critical shift in terminology from the repealed Act to the current statute. Under the Registration of Titles Act, a certificate of title was to be regarded by the courts as conclusive evidence that the person named therein was the absolute and indefeasible owner of the land. However, under current legislation, a certificate of title is to be regarded by courts as prima facie evidence that the person named therein is the absolute and indefeasible owner of the land. It is therefore no longer possible for a title holder to erect a certificate of title as a barrier to an inquiry into its legality or otherwise.”*** 1. They submitted that the Plaintiff could not wave the two certificates of title over the two suit properties - L.R. No. MN/III/2947 and L.R. No. MN/III/2948 as a bar to the 1st Defendant’s challenge of their legality and regularity. Further, in the said case of ***“Harcharan Singh Sehmi & Another (Supra)”***, the Supreme Court held as follows on the question of who an innocent purchaser for value without notice is: ***“[58] It is a fundamental principle of the law of property in land that a purchase of a legal estate for value without notice is an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner or encumbrancer. The onus of proof, however, lies upon the person claiming to be a bona fide purchaser. Three main ingredients must be present for a claimant to mount a successful defence based on the doctrine. These are, innocence, purchase for value, and a legal estate.[59]The element of innocence means that the purchaser must act in good faith. His conduct must not raise any doubt as to whether indeed, he did not have any notice or knowledge as to the existence of a rival interest in the suit land. If for example, it comes to light that during the process of purchase, the claimant engaged in conduct that is unconscionable in the eyes of equity, such conduct would weaken his claim of innocence as to the existence of a rival interest. The element of innocence also connotes the exercise of diligence expected of any reasonable purchaser.*** ***The claimant must demonstrate that he acted diligently and conducted a reasonable inquiry into the status of the estate or land that he sought to purchase.*** ***[60] In Torino Enterprises Limited – Versus - Attorney General (Petition 5(E006) of 2022 [2023] KESC 79 KLR, this Court held that an innocent purchaser for value denotes a purchaser who exercises due diligence, which would include, but not limited to, inspecting the suit property. It explained further as follows:*** ***“64....there is evidence on record in the form of correspondence and minutes, confirming that DOD had been granted access by the defunct municipal council and had taken possession of, and erected public infrastructure upon the suit property before the purported purchase. .... Therefore, if the appellant was a diligent purchaser, it ought to have at least known this fact. An innocent purchaser for value would also denote one was aware of what they were purchasing by inspecting the suit premises. ... The fact that the suit land was occupied must have sounded a warning of “buyer be aware” to the appellant. We therefore find that it was not an innocent purchaser for value entitled to orders for restoration or compensation.”*** 1. Similarly, the Plaintiff herein deliberately and or intentionally failed to exercise the diligence expected of any reasonable purchaser. Evidence before the Court shows that there are two old buildings with asbestos roofing material that were occupied by the 1st Defendant's staff before being forcibly evicted from the main suit land, being L.R. No.MN/III/1450, sometime in the year 1998 or thereabouts. There are also several building remnants on the main suit land that were formerly used and occupied by the 1st Defendant in furtherance of its public agricultural research mandate (refer to the Court Site Visit Report, the Survey Report of Boma Surveys filed by the 1st Defendant, the photos of the suit property produced in the Court by the 1st Defendant and DW - 1’s written and oral testimony before the Court). 2. They submitted that the Plaintiff had full notice of the status of and the buildings on the main suit property and the two suit properties they were occupying through his caretakers, who lived and keeping goats thereon. Despite of this knowledge and notice of the developments and buildings on the subject property, the Plaintiff proceeded with the purchase of the two subject properties in the year 2010. It was therefore not an innocent purchaser for value. But even more importantly, the doctrine of “innocent purchaser for value without notice' never protected a purchaser of an illegally/irregularly allocated title over public land. See the Supreme Court decision in ***“Harcharan Singh Sehmi (Supra)”***, Paragraphs [66], [67],[68], [69], [70], and [71]. The Supreme Court held that [72] the doctrine of “innocent purchaser for value without notice’ does not protect a purchaser of an illegally/irregularly allocated title over public land, such as the Plaintiff herein. 3. Moreover, the Court in the above cited case of ***“Technology Investments Limited & 3 Others (Supra)”***, at Paragraphs 55 - 56, held thus: ***“So long as a title is tainted with illegality, or was procured unprocedurally or through a corrupt scheme, such title may be impeached irrespective of whether or not the current title holder was a party to any of the vitiating factors. A title that was created illegally, unprocedurally, or through corrupt scheme, remains unlawful and null and void throughout its existence. It does not now become a lawful title by the mere fact that it has been turned over to several downstream purchasers. Title does not become sanitized by being charged or being sold. It carries its stain throughout its life and is always at risk of cancellation and nullification. It does not matter that rates are being paid on it. It also doesn’t matter that there had been some development plans that were approved. The stain of illegality did not go away because of these.”*** 1. Accordingly, the evidence of purchase and payment of the purchase price by the Plaintiff to the Vendors of the two suit properties, L.R. No. MN/III/2947and L.R. No. MN/III/2948, payment of rates, stamp duty and rents by the Plaintiff and evidence of payment of the Allotment charges by the Allottees do not and cannot sanitize the illegal titles/grants held by the Plaintiff over the two suit properties being L.R. No. MN/III/2947 and L.R. No. MN/III/2948, the said titles/grants having been created illegally and unprocedurally. They were null and void *ab* *initio.* 2. On whether the 1st Defendant was entitled to the prayers sought in the Amended Written Statement of Defence and Counter - Claim (as amended in Court on 28th September, 2023) dated 14th June, 2012. The Learned Counsel submitted that the Plaint herein and Petition by the Plaintiff herein were candidates for dismissal with costs to the 1st Defendant. No evidence was placed before this Court by the Plaintiff establishing any of the claims in the Plaint and the Petition on a balance of probabilities. 3. In the case of ***“Dina Management Limited (Supra)”***, the Supreme Court held that: ***“94. To establish whether the Appellant is a bona fide purchaser for value therefor, we must first go to the root of the title, right from the first allotment.*** ***110. Indeed, the title or lease is an end product of a process. If the process that followed prior issuance of the title did not comply with the law, then such a title cannot be held as indefeasible, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Limited, who in turn could pass to the Appellant.*** ***111....Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the Appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, ..., the Appellant could not benefit from the doctrine of bona fide purchaser.”*** 1. The Plaintiff failed to adduce any evidence before the Court establishing that the process followed prior to the issuance of titles to the two suit properties complied with the law. Having established through the foregoing submissions that the titles purchased by the Plaintiff over L.R. No. MN/III/2947 and L.R. No. MN/III/2948 were not obtained lawfully and regularly, the ownership of the two suit properties by the Plaintiff thereafter could not therefore be protected under the protection of Article 40 of the Constitution, having successfully challenged the root of the title. Accordingly, the reliefs sought by the Plaintiff in the Plaint and the Petition were for dismissal with costs. 2. On the other hand, the 2nd Defendant had proved on a balance of probabilities that:- 3. The Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948are sub - divisions of L.R. No. MN/III/1450 (original), the main suit property, which was owned, used, occupied, and possessed by the 1st Defendant for the discharge of its public agricultural research mandate. 4. The Suit Properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948, being sub - divisions of L.R. No. MN/III/1450 (original), the main subject suit, were not available for allocation to private persons, including the Plaintiff and its predecessors in title, the said properties being alienated Government land under the GLA. 5. The allocation of the Suit Properties L.R. No. MN/III/2947 and L.R. No.MN/III/2948 to the Plaintiff and or its predecessors in title thereof, respectively, were unlawful and irregular, the process having breached and contravened the mandatory procedure for such land allocation under the GLA. 6. The respective original allottees of the Suit Properties L.R. No.MN/III/2947 and L.R. No. MN/III/2948 (Kisibet Investments Limited and Pineapples Edge Limited) did not acquire a good title or interest in the Suit Properties capable in law of being passed to the Plaintiff. 7. The Plaintiff was not an innocent purchaser of the two suit properties for value without notice 8. It was therefore their humble submissions that the 1st Defendant was entitled to the prayers set out in the Amended Written Statement of Defence and Counter - Claim dated 14th June, 2012, as amended orally in Court, with leave of the Court, on 28th September, 2023. The Plaintiff received illegal titles over the suit properties L.R. No. MN/III/2947 and L.R. No.MN/III/2948 and the titles were for cancellation by dint of the provision of Section 26(1)(b) of the Land Registration Act, No. 3 of 2012. 9. In conclusion, the Learned Counsel urged the Court, for the foregoing submissions, to enter Judgment against the Plaintiff as prayed for in the Amended Written Statement of Defence and Counter - Claim dated 14th June, 2012 (as amended in Court on 28th September, 2023). The 1st Defendant also prayed that the costs of the proceedings herein be borne by the Plaintiff. 10. **Analysis and Determination** 11. I have keenly assessed the filed pleadings by the Plaintiff and the Defendants herein, the oral testimonies adduced in court, the documentary evidence tendered, the very comprehensive written submissions filed by the respective counsel, the myriad of cited authorities, and the relevant provisions of the Constitution of Kenya, 2010 together with the statutes governing land ownership and registration, including the Land Registration Act, No. 3 of 2012, the Government Lands Act (Cap 280, repealed), and the Trust Land Act (Cap 288, repealed). 12. In order to reach an informed, reasonable and just decision in the subject matter, this Honourable Court crafted the following seven (7) salient issues for its determination. These were: - 13. ***Whether the Plaintiff, Baharini Development Limited, lawfully acquired ownership and title to land parcels LR Nos. MN/III/2947 and MN/III/2948.*** 14. ***Whether the 1st Defendant, Kenya Agricultural Research Institute (KARI), (KALRO) had any valid proprietary interest, title and rights in the suit properties, or whether the land was reserved for public use – to undertake agricultural research activities.*** 15. ***Whether the 2nd Defendant, the Registrar of Titles, acted lawfully in purporting to revoke the Plaintiff’s titles through Gazette Notice No. 15570 dated 26th November 2010.*** 16. ***Whether the Plaintiff’s constitutional rights under the provision of Articles 40 and 47 of the Constitution of Kenya, 2010 were violated by the purported revocation of its titles.*** 17. ***Whether the Plaintiff is entitled to the reliefs sought in the Plaint and Petition, including declarations of ownership, injunctive relief, damages, and costs.*** 18. ***Whether the 1st Defendant’s Amended Statement of Defence and Counter - Claim dated 14th June, 2012 is merited, and whether the suit properties form part of LR No. MN/III/1450 (original) reserved for agricultural research.*** 19. ***Who should bear the costs of the suit and the Counter - Claim.*** ***ISSUE No. a). Whether the Plaintiff, Baharini Development Limited, lawfully acquired ownership and title to land parcels LR Nos. MN/III/2947 and MN/III/2948.*** **The Site Visit Report** 1. Before proceeding further, the Honourable Court now wishes to present the site visit report verbatim as follows:- **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **SITE VISIT REPORT AT MTWAPA KARLO AREA ON 11TH OCTOBER, 2024 AT 11.30 A.M.** 1. **Preliminaries.** 2. The team arrived at the site at 11.00am. The site is situated at Mtwapa area along the busy Mombasa – Malindi road. It was a distance of close to 20 kilometres from the Main Mombasa CBD. 3. The session assembled and it started with a word of prayer led by Mr. Shah. Thereafter introductions were conducted and the purpose of the visit was explained by the court. Members were invited to seek any clarifications on the site visit. Upon a clear understanding, it was agreed by consensus that the two Land Surveyors with their assistants would lead the team in the brief tour of the disputed area. 4. The site visit (***“Locus in Quo”***) commenced at the place where the team understood that the KALRO headquarters was once upon a time and several observations were made. 5. **Court:** 6. Hon. Justice L.L. Naikuni – The Judge ELC Mombasa. 7. M/s. Firdaus Mbula – Court Assistant. 8. Mr. George Omondi – Judges’ Usher. 9. Mr. John Ngari – the Judge’s Driver. 10. **Plaintiffs** 11. Mr. Oluoch – The Plaintiff’s Advocate. 12. M/s. Patricia Ngutu - Head of Legal Department, KALRO. 13. Mr. Mfinyange Poe – Institute Director, KALRO. 14. Mr. Lapezo Abisai – The Land Surveyor. 15. **Defendants** * + 1. Mr. Emashu Shah – The Director of the Art 680 Limited. 2. Mr. James Yatani – Manager. 3. Mr. Joshua Katana – An owner of one of the parcels of the suit land. 4. Mr. Ondieki – An Advocate. 5. Mr. Patrick Opiyo – A Land Surveyor. 6. Ms. Kiti – the State Counsel/Attorney General. (Hereinafter all referred to as **“The Team”*).*** 1. **Security Operatives** 2. Inspector of Police, P. Lillian. 3. Sgt. Gitonga Meshack. 4. Police Constable Remi Kingoo. 5. Driver Omar Mohamed. 6. Police Constable Susan Mungai. 7. **The purpose for the Site Visit** 8. The Court explained that the purpose of the site visit. It stated that it was pursuant to a court order made sometimes in 2024 in accordance with the provision of as Section 173 of the Evidence Act, Cap. 80; Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010. The provisions of Order 18 Rule 11 of Civil Procedure Rules, *to wit:-* **Power to court to inspect;** **“The court may at any stage of a suit inspect any property or thing concerning which any question may arise”** While Order 40 Rule 10 (1) (a) provided *to wit:-* **“The Court may, on the application if any party to a suit, and on such terms as it thinks fit:-** 1. **Make an order for ….………Inspection of any property which is the subject matter to which any question may arise therein.** 2. It was agreed by consensus of the parties that Site Visit be conducted led by the two Land Surveyors who were present. The Court was informed that Mr. Katana’s surveyor would not attend due to the short notice served on him. The court reminded the team that the matter was awaiting final submissions and emphasized that the site visit was not for gathering further evidence on the case but to make observations, verify and inspect the suit property so as to assist Court in its decision-making functions and/or process. 3. Ideally, the Honorable Court informed the team that the visit was purely to look, feel and observe on the issues brought in Court while inspecting the place. It warned parties from use of mobile phones in taking pictures nor making any recordings as they were likely to be misused in the social media defeating the while purpose of the site visit. **IV. The Procedure** 1. The Land Surveyors informed the team that the process would involve walking around the disputed area. In the course of that, the team would be identifying and picking the planted beacons at all boundary end points. 2. To assist in the surveying exercise, the well established and recorded maps; These maps were already filed in Court; GPS instruments and tape measures. 3. **The observations made by the team** 4. The team made the following observations. These were:- 5. ***The location and size:-*** * The suit land was located past Mtwapa weighing bridge on the right hand side while moving from the busy Mombasa to Malindi. There existed a connecting road to the site. It was tarmacked. It was close to 7 kilometres from the Mombasa – Malindi highway. * The suit land measures approximately 33 acres. The team learnt that initially it was 100 acres. Ostensibly, it all belonged to the then Kenya Agricultural & Research Institute (KARI), a State Corporation. Subsequently, it was alleged that the land got sub – divided into numerous portions and title deed issued to various individuals under unclear circumstances whatsoever. * To ascertain the exact location and measurement for each of the parcels on the suit land, the Land Surveyors guided the team using the following Surveying Plans. These were:- * FR 202/171 (1617/908 Origin MN/III/450 (13.40 Ha 33.1 acres) * 27017(6/12/94) – Sub - divided into 5 parcels namely:- 1. MN/III/2944 – 4.113 Ha (10.1 acres). 2. MN/III/2945 – 2.780 Ha (6.86 acres). 3. MN/III/2946 – 1.520 Ha (3.5 acres). 4. MN/III/2947 – 1.387 Ha (3.43 acres). 5. MN/III/2948 – 1.402 Ha. (3.46 acres). 6. Access Road – 1.188 Ha. (2.93 acres). * The team commenced the observation process from the parcel MN/III/ 2946. There was a long physical boundary using well planted four feet high chain link fence between the two portions of land MN/III/2944 and 2946. * It was noted that where a company trading in the name and style of Art 680 Limited was claiming to be its land being MN/III/2944 was a rectangular in shape. It was densely bushy with wild, under care and unkempt brushes. The team was fearful that there was a high likelihood there several reptiles such as snakes habiting inside it. It was not developed. All in all, the team avoided getting into the interior of the said portion. * However, the team noted that there existed an unfinished structure on it but not roofed. Mr. Shah explained that this was the case due to the pending litigation – the on going court case. * Further, it was noted that the parcel numbers MN/III/2947 and 2948 were fenced using some old and rusty iron sheet as one parcel. The fence bore a huge gate made of iron sheet locked by a huge chain and padlock and a chain * There was no physical boundary between parcel numbers MN/III/2947 and 2948. On these parcels there were a vast area with long and dry grassland. The place was overly neglected and with a few activities taking place. The team noted several debris from a recently demolished three structures. It was evident there had existed some residential houses which the team learnt were staff quarters for the KARI before they moved out to a different location. * Within the vast land the team found some abandoned and unkempt old residential houses. There were three in total. It appeared there were people inhabiting in them which the team learnt they were mainly engaged as Care – takers of the suit land. * Additionally, the team got access to one old 3 bangalow bedroomed house. It appeared almost over 40 years from the time it was constructed. The team observed it was exceedingly neglected from the faint and faded wall paint, broken window panes and doors; raptures floors; ceiling and roof; electricity and water system; usage - as the designated kitchen was now being utilised as padock for rearing livestock - goats and sheep. This was evident from the fresh huge heaps of animal manure/waste and the heavy urinal smell in the air. The other rooms full of old and untidy beddings on the floor and cooking utensils were indication the place was being utilized as a servant quarters for the staff. * The team took a walk upto the beach. The serenity and ambience was excellent with the blue ocean waters tides occasionally hitting the large rocky walls as it strolled back to the ocean. The team learnt it was a place the KARI staff would frequently hold barbeque as remnants of used rib bones as result of meat roasting, other wastes such as plastic papers and so forth could be visible scuttered all over. The team visited the parcels of land MN/III/2946 which was occupied by Mr. Joshua Katana. There were several incomplete structures on the land. From the teams assessment it appears the owner intended to establish a tourism resort place consisting of a restaurant and accommodation spaces. These comprised of 8 concrete constructed studios. There were incomplete. The team also noted there several wild and nicely planted plantations consisting of indigenous trees, well-manicured fence. It was evident they continued being watered todate. There was a recently demolished perimeter wall. Visibly, there was some contention over the boundary between Mr. Joshua and Art 680 Limited. * The team moved to the next parcel of land being MN/III/2945. It was full of wild, unkempt and overly neglected bushy shrubs. There was a high likelihood of reptiles such as snakes and rats habiting there. The team saw some old but half way demolished structures which we learnt were Senior staff house 4-bedroom house. There was also a servants quarters with a parking bay or garage for motor vehicles. These were utilized or served the former KARI staff. Indeed, the team learnt the last person to habit there was known as Mr. Nathaniel Tum, who was the former managing Director of KARI. Additionally, there was a 90 feet deep shallow water well. It was neglected and abandoned though covered for human and animal safety. * The team then moved back to where it had commenced the site visit tour. On this apace, the team saw several semi - permanent houses perhaps utilized by staff acting as Care – Takers. The team observed there were make shift three stoned African stoves using fire wood for cooking. * On the far end near the entrance gate, the team was able to see a well structured compound. It comprised of old concrete buildings and completely abandoned and not in use at all. The paint on the interior and exterior walls had completely faded, weathered and peeled off due to the severe hot Coastal weather conditions. There were also the effects of the corrosion from the intense and salty air blown from the nearby Indian ocean. The floor was raptured. This appeared to have been the condition for several years. * The team learnt they were once utilized as the main Administration block and offices for the Managing Director; Senior Staff – Accountants, Secretaries, Researchers, support staff and so forth. There was one used as a Laboratory for plant research. The team learnt that the centre was once used for conducting research on maize and other plantation by KARI before it relocated to a different premises away from the suit land. * KALRO the State Corporation that took over from KARI were now making a claim over the ownership of the whole suit land and those are the matters before the Court for its adjudication and final determination. 1. **Conclusion** Upon completion of the tour around the site, the Court made the following directions: - 1. **That the Honourable Court to prepare and share the Site Visit report accordingly.** 2. **That the matter to be mentioned for further direction.** There being no other business, the session ended with a word of prayer at 1.00 pm. **THE SITE VISIT REPORT PREPARED, SHARED AND DATED THIS……16TH ……….DAY OF …………FEBRUARY, …..2026.** **……………....……………………** **HON. MR. JUSTICE L.L. NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT MOMBASA** 1. Now under this sub‑title the Honourable Court shall examine the evidence adduced by the Plaintiff, Baharini Development Limited, the responses by the Defendants, and the applicable law governing land ownership and registration in Kenya. 2. The Honourable Court under this title is to deciphers the main substratum herein is on the issue of legal ownership to the suit land. From the very onset, Judicial notice will be taken to the fact that land in Kenya is extremely sensitive and emotive. Land is a source of livelihood and a lot of importance is bestowed on it. It is not just a vital resource for development, but also a tool for the mobilization of financial resources being utilized a collateral security to secure finances from commercial institutions for established projects. There has been plenty of disputes over the occupation, title and rights of land. According to the Constitution of Kenya, 2010 land is categorized into three – Private; Public and Community land. 3. With promulgation of the Constitution of Kenya, 2010, all the legal regime of land legislation were condensed into a few legal framework, Significant, after the repealing of several legislation, two of them were sustained being “**The Land Registration Act, No. 3 of 2012 and the Land Act, No. 6 of 2012”**. 4. It is instructive to note that the suit properties were registered under the Registration of Title Act, Cap. 281 (now Repealed). As already correctly pointed out by the Learned Counsel for the Defendant, based on the provisions of Section 107 of the Land Registration Act No. 3 of 2012 provided that any right, interest, title, power, or obligation acquired, accrued, or established under the repealed Acts would continue to be governed by the law applicable to it immediately prior to the commencement of the new Act. This Legal position finds grounding in the provisions Section 23 (3) (c) of the Interpretation and General Provisions Act, Cap. 2 which provides:- **“Where a written law repeals in whole or in part another written law, then unless a contrary intention appears the repeal shall not affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law so repealed”** 1. This position was upheld in the cases of ***“Samwuel Kamau Macharia & Another – Versus – Kenya Commercial Bank Limited & 2 Others (2012) eKLR and Tukero Ole Kina & Another – Versus – Tahir Sheikh Said (also known as TSS) & 5 Others (2015) eKLR”*** .Having stated that, the Provisions of Section 7 of the Land Act No. 6 of 2012 provides the said methods on how titles may be acquired in Kenya. **S. 7 Title to land may be acquired through:-** 1. **Allocations;** 2. **Land Adjudication process;** 3. **Compulsory acquisition;** 4. **Prescription;** 5. **Settlement programs;** 6. **Transmissions;** 7. **Transfers;** 8. **Long term leases exceeding Twenty one years created out private land; or** 9. **Any other manner prescribed in the Act of Parliament.** Ideally, I wish to point out that the Land Registration Act makes provision on the effect and efficacy of registration of title and its indefeasibility. The provision of Section 24 (a) of the Land Registration Act provides as follows:- **“Subject to this Act, 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.”** 1. When a person’s ownership to a property is called into question, it is trite that the said proprietor has to show the root of his ownership. In the case of ***“Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [2016] eKLR”***, where the Court held that; ***‘A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’*** 1. Further to this, the Honourable Court is guided by the Court of appeal in the case of: ***“Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No.239 of 2009”***, the Appeal Court held that:- ***“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”*** 1. The law is clear that, the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as ***‘the prima facie’***conclusive evidence that the person named as proprietor of the land is the absolute and legal owner with indefeasible title, rights and interest on the land and the proprietor shall not be subject to challenge except – On the ground of fraud, mistake, omission or misrepresentation to which the person is proved to be a party; or Where the Certificate of Title has been acquired illegally, unprocedurally or through a corrupt scheme. 2. This court in considering this matter referred to the case of:- ***“Elijah Makeri Nyangw’ra – Versus - Stephen Mungai Njuguna & Another (2013) eKLR”*** where the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. The court in the case while considering the application of provision of Section 26(1) (a) and (b) of the Land Registration Act holds as follows:- **“--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.”** 1. Now turning to the issues from the instant case. The Court notes that under Section 24(a) and Section 25(1) of the Land Registration Act, 2012, registration confers absolute ownership and rights to the registered proprietor, subject only to encumbrances noted on the register. However, Section 26(1) of the same Act provides that a certificate of title may be challenged if it is shown that it was obtained through fraud, misrepresentation, or an illegal, unprocedural, or corrupt scheme. 2. In the present case, the Plaintiff asserted that it purchased the suit properties, LR Nos. MN/III/2947 and MN/III/2948, in July, 2010 from two legal entities being Shirland Investment Limited and Hanover Holdings Limited for a consideration of a sum of Kenya Shillings Thirty Million (Kshs. 30,000,000/=). (It is instructive to note that neither of these two companies though mentioned extensively by both the Plaintiff and the 1st Defendant were never made a party to the two suits – the Plaint, Counter – Claim and Petition - as either parties nor witnesses. By and large, their reference remain speculative). Be that as it may, It produced duly executed sale agreements, Consents from the Commissioner of Lands dated 22nd June, 2010, Clearance Certificates, Valuation reports, receipts for payment of stamp duty, and Certificate of title deeds registered in its name on 3rd August, 2010. The Plaintiff contended that it was a bona fide purchaser for value without notice of any defect in title, having relied on official consents and clearances from the Commissioner of Lands. 3. On the contrary, the 1st Defendant, Kenya Agricultural Research Institute (KARI), vehemently maintained that the parcels formed part of a larger tract of public land reserved for agricultural research under LR No. MN/III/1450 (original). It vigorously argued that the sub - division and subsequent transfers were unlawful, and relied on Gazette Notice No. 15570 of 26th November, 2010, which purported to revoke the Plaintiff’s titles. The 2nd Defendant, the Registrar of Titles, confirmed issuance of the Gazette Notice but conceded that the Plaintiff had complied with all procedural requirements for transfer and registration. This evidence is critical to the Honourable Court. 4. The Court reiterates that land in Kenya is an emotive and sensitive matter. The Constitution of Kenya, 2010 categorizes land into private, public, and community land. With the promulgation of the Constitution, the legal regime was consolidated under the Land Registration Act, No. 3 of 2012 and the Land Act, No. 6 of 2012, repealing earlier statutes such as the Government Lands Act and the Registration of Titles Act. 5. At this juncture, the main issue this Court needs to determine is whether the Plaintiff is bona fide purchaser for value without notice. **Black’s law Dictionary 10th Edition** defines a **‘bona fide purchaser’** as follows: **‘One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.’** 1. On challenging validity of title, Sections 26 (1) (b) of the Land Registration Act states that: **‘The Certificate of Title issued by the Registrar upon registration or to a purchaser of land upon a transfer 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 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.’** 1. In the case of ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others (2015) eKLR”***, the Court of Appeal dealt exhaustively with the issue of bona fide purchaser for value without notice and held that a party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular. Further in the Uganda Court of Appeal Case of ***“Katende – Versus - Haridar & Company Ltd (2008) 2 EA 173”***, the Court defined what amounts to a bona fide purchaser for value thus: ***‘A bona fide purchaser for value is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, he must prove the following:*** * + - * 1. ***He holds a Certificate of Title*** 2. ***He purchased the Property in good faith;*** 3. ***He has no knowledge of the fraud;*** 4. ***The vendors had apparent valid title;*** 5. ***He purchased without notice of any fraud;*** 6. ***He was not party to any fraud.*** ***A bona fide purchase of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.*** 1. While in the case of ***“Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura – Versus - Attorney General & 4 others (2017) eKLR”***, the Court of Appeal held that a party cannot claim a bona fide purchaser for value where the vendor did not have a valid title. 2. The Plaintiff in this case produced documentary evidence showing compliance with statutory requirements: consents, clearance certificates, valuation reports, and duly executed transfers. On its part, the 1st and 2nd Defendants did not demonstrate fraud, collusion, or misrepresentation on the part of the Plaintiff. The 1st Defendant conceded that it never held title nor any registration documents pertaining to the two parcels LR Nos. 2947 and 2948, nor produced any allocation predating the Plaintiff’s acquisition. The Letter of Allotment to KARI was issued only in 2012, after the Plaintiff had already acquired registered title and this suit was now pending proceedings before the Court. Further, the 1st Defendant testified that they had moved to a different parcel of land away from the suit land as no meaningful agricultural research would be undertaken any more. 3. In the case of:- ***“Elijah Makeri Nyang’wara – Versus - Stephen Mungai Njuguna & Another [2013] eKLR”***, the Court held that even an innocent purchaser’s title can be impeached if it is shown to have been obtained illegally or unprocedurally. Although the 1st Defendant has incisively attacked the process of the acquisition of the two parcels the first allottees and the subsequent transfer to the Plaintiff contrary to the relevant provisions being Sections 9, 12 and 13 of the GLA (Now Repealed), but in the present case, the Plaintiff’s acquisition was supported by consents and clearance certificates from the Commissioner of Lands, and no evidence was adduced to show illegality in the process. 4. Applying these principles, the Court further notes that the doctrine of indefeasibility of title, while protective, is not absolute. It is subject to constitutional safeguards under the provision of Article 40 ( 1 ) & ( 2 ) and 47 of the Constitution of Kenya, 2010 which protects the right to property which guarantees fair administrative action. The Plaintiff was never accorded a hearing based on the Principles of natural Justice before the Gazette Notice was issued, nor was any compensation offered. This omission rendered the administrative action arbitrary and unconstitutional. Section 80 of the Land Registration Act, No, 3 of 2012 holds that its only a Court of Law that the mandate to revoke a Certificate of Title having been acquired through fraud, omission or mistake as dictated under Section 26 ( 1 ) of the said Act. This never happened making the whole process null and void. 5. The jurisprudence of Kenyan courts has consistently emphasized that the sanctity of title must be balanced against the need to prevent fraud and protect public land. In this case, the Plaintiff’s acquisition was procedurally compliant, supported by statutory instruments, and free from evidence of fraud or collusion. The Defendants’ reliance on a Gazette Notice without jurisdiction cannot override the Plaintiff’s registered rights. 6. Accordingly, applying these principles, the Court finds that the Plaintiff lawfully acquired ownership and title to LR Nos. MN/III/2947 and MN/III/2948. The purported revocation by Gazette Notice No. 15570 was unconstitutional, null, and void, as the Registrar of Titles lacked jurisdiction to revoke registered titles by administrative fiat. Hence, I discern that the Plaintiff’s rights under Article 40 (protection of property) and Article 47 (fair administrative action) of the Constitution were not only, threatened, denied but also violated. ***ISSUE No. b). Whether the 1st Defendant, Kenya Agricultural Research Institute (KARI), had any valid proprietary interest in the suit properties, or whether the land was reserved for public use*** 1. Under this sub‑title the Honourable Court shall examine whether the 1st Defendant, Kenya Agricultural Research Institute (KARI), had any valid proprietary interest in the suit properties, or whether the land was reserved for public use. The 1st Defendant contended that the suit properties, LR Nos. MN/III/2947 and MN/III/2948, formed part of a larger tract of land known as LR No. MN/III/1450 (original), which had historically been occupied and utilized for public use being conducting and undertaking agricultural research activities. Evidence was adduced and indeed from the site visit conducted by Court, that KARI had established staff houses, laboratories, and administrative blocks on the beachfront parcels prior to their voluntary vacation from the suit land in the year 1996. DW ‑ 1 testified that the land was reserved for public use and that the Gazette Notice of 26th November, 2010 confirmed the same. He further explained that the institution had operated from the beachfront for decades, and that the vacation disrupted ongoing research activities and undermined the continuity of public agricultural programs. My understanding from his explanation was that the research work had now became obsolete and spindrift whatsoever. It was for these reasons that they saw the need to identify and move to an alternative parcel of land and where they were operating from currently. 2. However, the Court notes that proprietary interest in land under Kenyan law must be demonstrated through a valid allocation, grant, or registered title. The provision of Sections 24(a), 25 and 26 of the Land Registration Act, No. 3 of 2012 provides that registration vests in the proprietor absolute ownership together with all rights and privileges appurtenant thereto. Section 25 (1) further protects the rights of a registered proprietor, subject only to encumbrances noted on the register. Mere occupation, administrative use, or even long‑standing institutional presence, without formal allocation or registration, does not confer proprietary rights. 3. The 1st Defendant conceded that it never held registered title nor any documentation on registration whatsoever onto the to LR Nos. 2947 and 2948. The Letters of Allotment produced in evidence were issued to private companies—Kisibet Investment Limited and Pineapple Edge Limited — in the year 1995. DW ‑ 1 admitted that KARI had not been consulted prior to issuance of those allotments, nor had it lodged any formal application for allocation of the parcels. The only Letter of Allotment to KARI was issued in the year 2012, long after the Plaintiff had acquired registered title in 2010. I reiterate this during the pendency of this proceedings. This chronology is critical: by the time KARI received any formal documentation, the land had already been alienated and transferred to Baharini Development Limited. Although the 1st Defendants has really made a meal on the alleged irregularities caused by the then Commissioner of Lands in allocation of the suit land to private companies, I still wonder the reason why the said legal entities were never made parties to these suits. Hence, all these allegations can only remain speculative and unsubstantiated in Law. 4. In the case of: ***“Wreck Motors Enterprises – Versus - Commissioner of Lands & Others [1997] eKLR”***, the Court held that once land is alienated and title issued, it ceases to be public land. Similarly, in ***“Republic – Versus - Registrar of Titles Mombasa & Another ex parte Baharini Development Limited [2012] eKLR”***, Justice Tuiyott emphasized that the Registrar of Titles had no jurisdiction to revoke registered titles by Gazette Notice, and that only a court of law could invalidate such titles. These authorities underscore the principle that administrative declarations or assumptions cannot override registered ownership. The Court is further guided by the provision of Section 26(1) of the Land Registration Act, which provides that a certificate of title may only be challenged on grounds of fraud, misrepresentation, or if acquired illegally, unprocedurally, or through a corrupt scheme. No evidence was adduced to show that the Plaintiff colluded in fraud or misrepresentation. The Plaintiff’s acquisition was supported by consents, clearance certificates, and valuation reports issued by the Commissioner of Lands. The evidentiary record demonstrates compliance with statutory requirements, and the Defendants failed to establish any irregularity attributable to the Plaintiff. 5. The Court also recalls the constitutional framework under the provision of Article 40 of the Constitution of Kenya, 2010, which guarantees the right to property and prohibits arbitrary deprivation. While public institutions such as KARI play a vital role in national development, their mandates cannot override the sanctity of registered private ownership unless due process is followed. Administrative actions, including Gazette Notices, cannot substitute for lawful adjudication of title. 6. Accordingly, while KARI may have occupied the land historically and considered it reserved for public use, it failed to demonstrate any valid proprietary interest recognized under the law. Its claim was based on occupation and administrative assumption rather than registered title. The Plaintiff’s registered ownership, supported by statutory instruments, supersedes such unperfected claims. 7. Therefore, the Court strongly finds that the 1st Defendant did not hold any valid proprietary interest in LR Nos. MN/III/2947 and MN/III/2948, and that the purported reservation of the land for public use was not perfected in law. The Plaintiff’s registered title remains indefeasible, subject only to challenge on grounds expressly provided under the provision of Section 26(1) of the Land Registration Act, which have not been proved in this case. ***ISSUE No. c). Whether the 2nd Defendant, the Registrar of Titles, acted lawfully in purporting to revoke the Plaintiff’s titles through Gazette Notice No. 15570 dated 26th November 2010*** 1. Under this sub‑title the Honourable Court shall examine whether the 2nd Defendant, the Registrar of Titles, acted lawfully in purporting to revoke the Plaintiff’s titles through Gazette Notice No. 15570 dated 26th November, 2010. The Plaintiff argued that the Gazette Notice was unconstitutional and ultra vires, as the Registrar of Titles lacked jurisdiction to revoke registered titles by administrative fiat. The Plaintiff relied on the fact that it had obtained consents from the Commissioner of Lands, clearance certificates, valuation reports, and duly executed transfers, culminating in registration of title deeds in its name on 3rd August, 2010. The Plaintiff contended that once registration was effected, its ownership was indefeasible except as provided under statute. The Plaintiff emphasized that the sanctity of title is the cornerstone of Kenya’s land law regime, and that undermining it through administrative notices would destabilize property rights and erode public confidence in the land registration system. 2. The 2nd Defendant admitted issuing Gazette Notice No. 15570, which purported to revoke titles to parcels LR Nos. 2944–2948, including the Plaintiff’s properties, on grounds that they had been irregularly allocated and were reserved for public use. However, DW ‑ 2, the Chief Land Registration Officer, conceded under cross‑examination that the Plaintiff had complied with all requirements for transfer and registration, and that the Letter of Allotment to KARI was issued only in 2012, after the Plaintiff had already acquired registered title. This admission underscored the fact that the Plaintiff’s acquisition pre‑dated any attempt to reserve the land for public use, and that the Registrar’s action was retrospective and without lawful foundation. 3. The Court is guided bythe provision Section 24(a) of the Land Registration Act, 2012 provides that:- **“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 thereto.”** 1. Further, as provided by **Section 25 of the said Act**, his ownership cannot be defeated except as provided by the law. See Section 25 (1) of Land Registration Act:- **“(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever,** 1. Section 26(1) of the Land Registration Act 2012 provides that:- **“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”** 1. In the case of ***“Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”*** the Court of Appeal held:- ***“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is the instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register”*** 1. The Plaintiffs’ evidence must satisfy the requirement in ***“Munyu Maina – Versus - Hiram Gathiha Maina [supra]”***, where the Court of Appeal held that when the root of title is challenged, the registered proprietor must demonstrate the process of acquisition. 2. Under the Land Registration Act, the registered proprietor’s title is prima facie determinative; earlier valid registration ordinarily prevails over later registrations. A later registered title that is tainted by fraud may be set aside; conversely, an earlier registered title may be impeached if it was itself procured by fraud. The court must decide which title was lawfully and validly created. The party alleging fraud or forgery bears the burden to prove it on the balance of probabilities. Where documentary entries conflict, the court examines the contemporaneous documentary trail, witness evidence and any independent corroboration (bank receipts, RTGS, stamp duty receipts, court orders, police exhibits). The Registrar must maintain an accurate register; where the register contains inconsistent or duplicate entries, the Registrar has a duty to investigate and, if necessary, rectify the register. 3. In the case of:- ***“Republic – Versus - Registrar of Titles Mombasa & Another ex parte Baharini Development Ltd [2012] eKLR”***, Justice Tuiyott held that the Registrar of Titles had no jurisdiction to revoke titles by Gazette Notice, and that such revocation was unconstitutional. Similarly, in ***“Isaac Gathungu Wanjohi – Versus - Attorney General & Another [2012] eKLR”***, the High Court emphasized that only a court of law can invalidate a registered title, and that administrative revocation undermines the sanctity of title. These authorities are binding and persuasive, and they reinforce the principle that registered ownership cannot be displaced by unilateral administrative action. 4. The Gazette Notice in question was therefore not a lawful instrument of revocation. It amounted to an administrative attempt to deprive the Plaintiff of property without due process, contrary to Article 40 of the Constitution of Kenya, 2010, which protects the right to property, and Article 47, which guarantees fair administrative action. The Plaintiff was never accorded a hearing, nor was any compensation offered, rendering the action arbitrary and unconstitutional. The Court notes that the Registrar’s conduct also contravened the principles of natural justice, particularly the right to be heard, which is a fundamental tenet of fair administrative action. Nonetheless, while fully agreeing with the submissions by the Learned Counsel for the Plaintiff, I dare say that perhaps the Registrar of Title causing the cancellation of the title deeds entries on the basis of the detection of forgeries they acted ***‘Ultra vires***”. Legally speaking, the Land Registrar exceeded his legal mandate. That action was not provided for in law and hence I hold it was null and void. I am guided by the provision of Section 80 (1) of the Land Registration Act provides that:- **“Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”** Sub section (2) states that: **“The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake.”** 1. From the above provisions it is clear that it is only the Court that has the legal mandate and powers to order rectification of a register by directing that the registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. The decision by the Land Registrar be and is hereby nullified and set aside. 2. The jurisprudence in ***“Elijah Makeri Nyang’wara – Versus - Stephen Mungai Njuguna & Another [2013] eKLR”*** further clarifies that even an innocent purchaser’s title can be impeached if obtained illegally or unprocedurally. However, in the present case, the Plaintiff’s acquisition was supported by statutory consents and clearance certificates, and no evidence was adduced to show fraud or collusion on its part. The Registrar’s unilateral revocation by Gazette Notice did not meet the threshold set out under **Section 26(1)**. 3. The Court also takes cognizance of the broader policy implications. If administrative officers were permitted to revoke titles by Gazette Notice, the certainty and reliability of Kenya’s land registration system would collapse, leading to insecurity of tenure, economic instability, and erosion of constitutional guarantees. The rule of law requires that disputes over title be adjudicated by courts of law, where evidence can be tested and rights safeguarded. 4. Therefore, the Court finds that the 2nd Defendant acted unlawfully in purporting to revoke the Plaintiff’s titles through Gazette Notice No. 15570 dated 26th November, 2010. The action was ultra vires, unconstitutional, and null and void, as the Registrar of Titles lacked jurisdiction to revoke registered titles by administrative notice. ***ISSUE No. d). Whether the Plaintiff’s constitutional rights under Articles 40 and 47 of the Constitution of Kenya, 2010 were violated by the purported revocation of its titles*** 1. Under this sub‑title the Honourable Court shall examine whether the Plaintiff’s constitutional rights under Articles 40 and 47 of the Constitution of Kenya, 2010 were violated by the purported revocation of its titles through Gazette Notice No. 15570 dated 26th November, 2010. The Plaintiff contended that its rights to property and fair administrative action were gravely infringed when the Registrar of Titles issued a Gazette Notice purporting to revoke its registered ownership of LR Nos. MN/III/2947 and MN/III/2948. The Plaintiff emphasized that it had lawfully acquired the parcels through sale agreements, consents from the Commissioner of Lands, clearance certificates, valuation reports, and duly registered transfers. It argued that the unilateral revocation amounted to arbitrary deprivation of property without compensation and without being afforded a hearing, thereby undermining the very essence of constitutional protection of property rights. 2. The provision of Article 40(1) of the Constitution guarantees every person the right to acquire and own property of any description in any part of Kenya. Article 40(2)(a) prohibits Parliament or any person from arbitrarily depriving a person of property. Article 40(3)(b) further provides that compulsory acquisition of property must be accompanied by prompt payment of compensation and adherence to due process. In the present case, the Plaintiff’s registered titles were revoked without compensation and without lawful authority. The Registrar of Titles, being an administrative officer, lacked jurisdiction to revoke registered titles by Gazette Notice. This amounted to arbitrary deprivation of property, contrary to Article 40. The Court of Appeal in ***“Isaac Gathungu Wanjohi – Versus - Attorney General [2012] eKLR”*** held that once a title is issued, it cannot be revoked by administrative fiat; only a court of law can invalidate such title. This principle underscores the sanctity of title and the constitutional imperative that property rights cannot be undermined by unilateral administrative action. 3. The Court further notes that the Plaintiff’s acquisition was procedurally compliant, supported by statutory instruments, and free from evidence of fraud or collusion. The deprivation therefore lacked any lawful justification, making the Gazette Notice a direct affront to Article 40. 4. Article 47 of the Constitution of Kenya provides for the right to fair administrative action; Article 47(1) guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. Article 47(2) requires that if a right or fundamental freedom is likely to be adversely affected by administrative action, the person must be given written reasons. 5. The Plaintiff was never notified of the intended revocation, never accorded a hearing, and no written reasons were furnished. The Gazette Notice was issued without consultation, rendering the action capricious, vindictive, and procedurally unfair. In the case of:- ***“Republic – Versus - Registrar of Titles Mombasa ex parte Baharini Development Ltd [2012] eKLR”***, the High Court held that the Registrar’s unilateral revocation of title by Gazette Notice violated Article 47, as the Plaintiff was denied an opportunity to be heard. This case is directly on point, illustrating how administrative arbitrariness undermines constitutional guarantees of fairness and due process. 6. The Court emphasizes that fair administrative action is not a mere procedural nicety but a substantive constitutional right. Denial of a hearing and failure to provide written reasons stripped the Plaintiff of its ability to defend its property rights, thereby violating **Article 47** in its entirety. 7. In ***“Kenya National Highway Authority – Versus - Shalien Masood Mughal [2017] eKLR”***, the Court emphasized that deprivation of property without due process violates both Article 40 and Article 47. Similarly, in ***“Elijah Makeri Nyang’wara – Versus - Stephen Mungai Njuguna & Another (Supra)”***, the Court held that while title can be impeached if obtained fraudulently or illegally, such determination must follow due process and cannot be effected by unilateral administrative action. 8. Comparative jurisprudence from other Commonwealth jurisdictions reinforces this principle. For instance, the Ugandan Court of Appeal in ***“Katende – Versus - Haridar & Company Ltd (2008) 2 EA 173”*** stressed that bona fide purchasers must be protected, and any challenge to title must follow lawful procedures. This comparative perspective underscores the universality of the principle that property rights are inviolable except through lawful judicial process. 9. The Court finds that the Plaintiff’s constitutional rights under Articles 40 and 47 were indeed violated. The purported revocation of its titles by Gazette Notice No. 15570 was unconstitutional, null, and void, as it deprived the Plaintiff of property arbitrarily, without compensation, and without affording it a hearing. 10. Accordingly, the Court holds that the Plaintiff’s rights to property and fair administrative action were infringed by the 2nd Defendant’s unlawful act of revocation, and the Gazette Notice cannot stand. ***ISSUE No. e). Whether the Plaintiff is entitled to the reliefs sought in the Plaint and Petition, including declarations of ownership, injunctive relief, damages, and costs.*** 1. Under this sub‑title the Honourable Court shall examine whether the Plaintiff, Baharini Development Limited, is entitled to the reliefs sought in the Plaint and Petition, including declarations of ownership, injunctive relief, damages, and costs. The Plaintiff sought declaratory orders confirming its ownership of LR Nos. MN/III/2947 and MN/III/2948, injunctive relief restraining the Defendants from interfering with its possession, damages for trespass, and costs of the suit. The Plaintiff also challenged the legality of Gazette Notice No. 15570 dated 26th November, 2010, which purported to revoke its titles. 2. On the declaratory reliefs, the Court has already found that the Plaintiff lawfully acquired ownership and title to the suit properties in 2010, supported by consents, clearance certificates, valuation reports, and duly registered transfers. The purported revocation by Gazette Notice was ultra vires and unconstitutional. Accordingly, the Plaintiff is entitled to a declaration that it is the absolute and indefeasible owner of the suit properties, and that the Gazette Notice is null and void. 3. This position is fortified by Section 24(a) and Section 25(1) of the Land Registration Act, 2012, which vest absolute ownership in a registered proprietor, subject only to encumbrances noted on the register. The sanctity of title is further protected by Article 40 of the Constitution, which prohibits arbitrary deprivation of property. The jurisprudence in ***“Republic – Versus - Registrar of Titles Mombasa ex parte Baharini Development Ltd (Supra)”*** and ***“Isaac Gathungu Wanjohi – Versus - Attorney General (Supra)”*** underscores that administrative officers cannot revoke registered titles by Gazette Notice, and that only a court of law may invalidate such ownership. 4. On the injunctive relief, the Plaintiff demonstrated that its possession was threatened by the Defendants, particularly through attempted entry and demolition by KARI staff accompanied by police officers. The principles for granting injunctions were set out in ***“Giella – Versus - Cassman Brown [1973] EA 358”***, requiring proof of a prima facie case, irreparable harm, and balance of convenience. Here, the Plaintiff established “***a prima facie case”*** by producing registered titles. The threatened deprivation of property without lawful cause constitutes irreparable harm, as land is unique and damages cannot adequately compensate for loss of proprietary rights. The balance of convenience tilts in favour of preserving the Plaintiff’s possession pending resolution. Accordingly, the Plaintiff is entitled to permanent injunctive relief restraining the Defendants from interfering with its ownership and possession. 5. On the damages, trespass is actionable per se, meaning that proof of unlawful entry alone entitles the proprietor to damages. In the case of ***“Park Towers Limited – Versus - John Mithamo Njika & Others [2014] eKLR”***, the Court held that damages for trespass are discretionary and may be substantial depending on the circumstances. The Plaintiff proved that its possession was interfered with by forcible entry and threats of demolition. 6. Given the seriousness of the interference, the constitutional violation, and the need to vindicate property rights, the Court finds that an award of general damages of a sum of Kenya Shillings Five Million (Kshs. 5,000,000.00/=) was appropriate. This award reflects both compensation for loss of use and enjoyment of the property and deterrence against future unlawful encroachment. The Court is mindful that damages in land disputes serve not only a compensatory function but also a normative one, reinforcing the principle that registered ownership must be respected. ***ISSUE No. f). Whether the 1st Defendant’s Amended Statement of Defence and Counter - Claim dated 14th June, 2012 is merited, and whether the suit properties form part of LR No. MN/III/1450 (original) reserved for agricultural research*** 1. Under this sub‑title the Honourable Court shall examine whether the 1st Defendant’s Amended Statement of Defence and Counter - Claim dated 14th June, 2012 is merited, and whether the suit properties form part of LR No. MN/III/1450 (original) reserved for agricultural research. 2. The 1st Defendant, Kenya Agricultural Research Institute (KARI), asserted that the suit properties were unlawfully excised from public land reserved for agricultural research. It maintained that the parcels formed part of LR No. MN/III/1450 (original), which had historically been occupied by KARI for research purposes. DW ‑ 1 testified that the institution had constructed some staff housing, laboratories, and administrative blocks on the beachfront parcels prior to their vacation /eviction in the year 1996, and that the land was intended for public use. KARI further relied on Gazette Notice No. 15570 dated 26th November, 2010, which purported to revoke the Plaintiff’s titles and restore the land to public ownership. 3. However, I reiterate the umpteenth times, the Plaintiff, produced documentary evidence showing that it acquired the suit properties in July, 2010 through duly executed transfers, supported by consents from the Commissioner of Lands, clearance certificates, valuation reports, and payment of stamp duty. The Plaintiff’s titles were registered on 3rd August, 2010. On the contrary, the Defendants did not produce any registered title predating the Plaintiff’s acquisition. The only Letter of Allotment to KARI was issued in 2012, long after the Plaintiff had already acquired registered ownership. 4. The Court is guided by Section 24(a) and Section 25(1) of the Land Registration Act, 2012, which vest absolute ownership in a registered proprietor, subject only to encumbrances noted on the register. Section 26(1) provides that a certificate of title may only be challenged on grounds of fraud, misrepresentation, or if acquired illegally, unprocedurally, or through a corrupt scheme. Mere occupation or historical use by a public institution does not confer proprietary rights absent formal allocation or registration. 5. In ***“Wreck Motors Enterprises – Versus - Commissioner of Lands (Supra)”***, the Court held that once land is alienated and title issued, it ceases to be public land. Similarly, in ***“Republic – Versus - Registrar of Titles Mombasa ex parte Baharini Development Ltd (Supra)”***, the High Court emphasized that the Registrar of Titles had no jurisdiction to revoke registered titles by Gazette Notice, and that only a court of law could invalidate such titles. These authorities underscore that administrative declarations or assumptions cannot override registered ownership. 6. The Court also notes that the Plaintiff’s acquisition was procedurally compliant, supported by statutory instruments, and free from evidence of fraud or collusion. The Defendants failed to establish that the Plaintiff’s titles were obtained illegally or unprocedurally. The reliance on Gazette Notice No. 15570 was misplaced, as the Registrar lacked jurisdiction to revoke registered titles by administrative fiat. 7. The Court therefore finds that the 1st Defendant’s Amended Statement of Defence and Counter - Claim dated 14th June, 2012 is not merited. The suit properties, LR Nos. MN/III/2947 and MN/III/2948, do not form part of LR No. MN/III/1450 (original) reserved for agricultural research, as no valid allocation or registered title was produced to support KARI’s claim. The Plaintiff’s registered ownership remains indefeasible, subject only to challenge under the provision of Section 26(1) of the Land Registration Act, which has not been proved in this case. 8. Accordingly, the Court holds that the 1st Defendant’s counterclaim fails in its entirety, and the Plaintiff’s registered titles prevail. ***ISSUE No g). Who should bear the costs of the consolidated suit and the Counter - Claim*** 1. It is now well established that costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal action or proceedings in litigation. The general principle under Section 27 of the Civil Procedure Act, Cap. 21 is that costs follow the event, unless the Court for good reason orders otherwise. By the event it means the result or outcome of any legal action. 2. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 3. In***“Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR”***quoted the case of ***“Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227”***the Court held; ***“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp vs Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”*** 1. In the present matter, the Plaintiff, Baharini Development Limited, succeeded in establishing that it lawfully acquired ownership and title to LR Nos. MN/III/2947 and MN/III/2948, and that the purported revocation of its titles by Gazette Notice No. 15570 was unconstitutional, null, and void. The Plaintiff also proved trespass and violation of its constitutional rights under Articles 40 and 47. 2. On the other hand, the 1st Defendant’s Amended Statement of Defence and Counter - Claim dated 14th June, 2012 failed, as the Court found that KARI did not hold any valid proprietary interest in the suit properties and that its claim was based on historical occupation rather than registered title. The 2nd Defendant, the Registrar of Titles, was found to have acted unlawfully in purporting to revoke the Plaintiff’s titles by Gazette Notice. 3. Given these findings, the Plaintiff is the successful party in both the suit and the Counter - Claim. The Defendants, having failed to prove their claims, must bear the costs. The Plaintiff shall have the costs of the suit against the Defendants jointly and severally. The Plaintiff shall also have the costs of defending the 1st Defendant’s counterclaim. 4. **Conclusion and Disposition** 5. Ultimately, having undertaken such an in‑depth analysis of the pleadings, evidence, and framed issues herein, the Honourable Court, on the preponderance of probabilities and guided by the balance of convenience, finds that the Plaintiff, Baharini Development Limited, lawfully acquired registered title to parcels LR Nos. MN/III/2947 and MN/III/2948 in July, 2010, following due process of transfer, consent of the Commissioner of Lands, clearance of rent and rates, and payment of requisite stamp duty. 6. The Court further finds that the purported revocation of the Plaintiff’s titles through Gazette Notice No. 15570 dated 26th November, 2010 was unconstitutional, ultra vires, null, and void, the Registrar of Titles having lacked jurisdiction to revoke registered titles by administrative fiat. The Defendants failed to demonstrate fraud, misrepresentation, or collusion on the part of the Plaintiff in the acquisition of the suit properties. 7. The Court is satisfied that the Plaintiff’s rights under Article 40 of the Constitution of Kenya, 2010 (protection of right to property) and Article 47 (fair administrative action) were violated by the arbitrary deprivation of property without compensation and without affording the Plaintiff a hearing. 8. In light of the foregoing, and for avoidance of any doubt, the Honourable Court proceeds to make the following specific orders:- 9. **THAT Judgement be entered to the effect that the Plaintiff’s claim through the Plaint dated 28th October, 2011, for ownership and injunctive relief over parcels LR Nos. MN/III/2947 and MN/III/2948 be and is hereby found to have merit and the same is allowed.** 10. **THAT for avoidance of doubt, the 1st Defendant’s Amended Defense and Counter - Claim dated 14th June, 2012 be and is hereby found to lack merit and the same stands dismissed.** 11. **THAT a declaration be and is hereby issued that the Plaintiff, Baharini Development Limited, is the absolute and indefeasible owner of parcels LR Nos. MN/III/2947 and MN/III/2948.** 12. **THAT Gazette Notice No. 15570 dated 26th November 2010 purporting to revoke the Plaintiff’s titles be and is hereby quashed.** 13. **THAT permanent injunction be and is hereby issued restraining the Defendants, whether by themselves or through their servants, agents, employees, or anyone deriving title through them, from interfering with the Plaintiff’s possession, occupation, or ownership of the suit properties.** 14. **THAT an orders of Certiorari and Mandamus be and is hereby issued compelling the Registrar of Titles to quash in the Kenya Gazette a legal notice cancelling the purported revocation of the Plaintiff’s titles.** 15. **THAT the Plaintiff is awarded general damages for trespass assessed at a sum of Kenya Shillings Five Million (Kshs. 5,000,000.00/=) together with interest at court rates from the date of filing suit until payment in full, against the Defendants jointly and severally.** 16. **THAT the Plaintiff shall have the costs of the suit against the Defendants.** **JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS ………31ST ……... …………….DAY OF ………JULY..………….2026.** **………………………………..….……** **HON. JUSTICE L.L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT MOMBASA** **Judgement delivered in the presence of: -** 1. M/s. Firdaus Mbula – the Court Assistant. 2. Mr. Omwenga Advocate for the Plaintiff. 3. Mr. Oluoch Advocate for the 1st Defendant. 4. No appearance for the 2nd Defendant