Bw’Auma v Kobbai & another (Environment and Land Case E045 of 2021) [2026] KEELC 3723 (KLR) (18 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KAJIADO** **ELC NO E045 OF 2021** **CALEB MANYAGA BW’AUMA ……………………..…………PLAINTIFF** **VERSUS** **NTARI OLE KOBBAI …………………………….……..1ST DEFENDANT** **THE LAND REGISTRAR, KAJIADO SOUTH** **& CENTRAL……………………………………………….2ND DEFENDANT** **BY COUNTERCLAIM** **NTARIO OLE KOBAAI ……………………………..……..1ST PLAINTIFF** **OLKILORITI GROUP RANCH …………………..………2ND PLAINTIFF** **VERSUS** **CALEB MANYAGA BW’AUMA…………………..……..1ST DEFENDANT** **SALALA OLE SHANKUA …………………………..…..2ND DEFENDANT** **THE LAND REGISTRAR, KAJIADO…………….…..3RD DEFENDANT** **HON. ATTONERY GENERAL …………………………4TH DEFENDNAT** **J U D G M E N T** 1. By the plaint dated 24th June 2021 the plaintiff has filed this suit against the Defendants jointly and severally seeking: 2. An order for the rectification of the registers for Title NumbersKajiado/Ildamat/10837 Kajiado/Ildamat/10838, Kajiado/Ildamat/10839 and Kajiado/Ildamat/10840 by directing that all registrations and entries therein be cancelled and the registers be closed., 3. An order directing that Government Surveyors to undertake a survey and beacon parcels of land comprised in Title Number Kajiado/Ildamat/129 and Title Number Kajiado/Ildamat/417 and proceed to accordingly amend the pertinent Registry Index map to reflect the survey. 4. An order for the rectification of register for Title Number Kajiado/Ildamat/129 by directing that its approximate area be amended by deleting its current area of 16.2 Ha and substituting therewith its actual area as surveyed by the Government Surveyor as per order (b) above. 5. Upon being served with copies of plaint and summons to enter appearance the 1st Defendant filed a statement of Defence and counterclaim dated 3rd September 2021. In his counterclaim he states that parcel known as Kajiado/Ildamat/417 does not exist in the area list as the plaintiff (in the main suit) has never been a registered member of Olkiloriti Group Ranch. 6. He seeks the following reliefs: 7. A declaration that the plaintiff is the sole and legal proprietor of all that parcel known Kajiado/Ildamat/10837, Kajiado/Ildamat/10838, Kajiado/Ildamat/10839 and Kajiado/Ildamat/10840 and is entitled quiet, peaceful and uninterrupted possession of the same. 8. A permanent injunction prohibiting and restraining the Defendant in counterclaim herein by themselves, their agent, servants, employees or otherwise whomsoever claiming through them from claiming and interfering with quiet possession, enjoyment and utilization of all those parcels Kajiado/Ildamat/10837, Kajiado/Ildamat/10838, Kajiado/Ildamat/10839 and Kajiado/Ildamat/10840. 9. An Order directing the Land Registrar Kajiado to lift the restrictions placed over Kajiado/Ildamat/10837, Kajiado/Ildamat/10838, Kajiado/Ildamat/10839 and Kajiado/Ildamat/10840 by the 1st Defendant herein. 10. Cost of the suit 11. Interest to (d) above. 12. In reply the Plaintiff filed a reply to defence and defence to the Counterclaim dated 21st September 2021 urging that the Counter claim be dismissed with costs. The 2nd Defendant (in the Counterclaim) Sialala Ole Shaankua also filed a statement of defence and defence to counterclaim dated 11th October 2024 also praying that the 1st Defendant’s case be dismissed with costs. **EVIDENCE OF THE PLAINITFF** 1. PW1, Caleb Manyanga Bw’auma, the plaintiff, testified on the 25th October 2023. He adopted his witness statement dated 24th June 2021 and a further witness statement dated 25th May 2022 as his evidence in chief. He also produced the documents in his Bundle of documents dated 24th June 2021 as exhibits P1 to P21 respectively. He also produced the photographs in the further list dated 25th May 2022 as exhibit P22 (a-g) It was his case that the 1st Defendant recently put up a structure on the adjacent parcel and that before this there was no structure. He prays for the reliefs sought in the plaint. 1. When cross examined by Mr. Nairi for the 1st Defendant, he told the court that he purchased twenty five (25) Acres from Sialala ole Shaankua who had bought from Ole Koobai Kongorro. He admitted that he was not a party to the sale agreement between Sialala and Kongorro. He bought the land in the year 2009. He stated that he did not know that Ole Koobia Kongorro passed on intestate in the year 2006. 1. He told the court that Kajiado Ildamat/417 is a sub-division of Kajiado /Ildamat/19 which belonged to the Group Ranch. When shown the Area list of Olkiloriti Group Ranch, he stated that Sialala ole Shaankua was not a member. He said he saw a title deed in the name of Sialala ole Shaankua . He stated that he was not interested on the remainder of Kajiado/Ildamati/129. He told the court that the 25 Acres he bought from Sialala ole Shaankua were carved out in the presence of the officials of the Group Ranch and the Surveyor. He told the court that he has been in possession of the land from the year 2009. 2. On re-examination, he reiterated he bought the land from Sialala Ole Shaankua for Kshs1,150,000/=. He conducted a search at the Land Registry and confirmed the land belonged to Sialala Ole Shaankua. He then visited the land and saw the beacons. He put up a fence made of sisal and indigenous plants without any resistance. 3. He told the court from 2009 to 2021 nobody sued him. He further stated that Ole Koobai Kongorro was left with 5.44 Hectares after selling to Sialala Ole Shaankua. He further stated that the officials of the Group Ranch did not question him on his occupation 4. PW2, Sialala Ole Shaankua, the 2nd Defendant (in the Counter claim) adopted his witness statement dated 11th October 2024 as his evidence in chief. It is his case that he bought 25 acres from ole Kobaai Kongorro but later sold to the Plaintiff, Caleb Manyaga Bw’auma. 5. When cross examined by Mr. Nairi for the 1st Defendant he stated that he bought the land from ole Koobai Kongorro in the year 1995. He also stated that by then Kongorro did not have a title deed. He stated that the chairman and the committee of the group Ranch pointed out the land to him. He further stated that by the time ole Koobai Kangorro passed on, in 2006 he did not have a title. It was his case that the officials of the Group Ranch processed the title in his (PW2) favour. 6. It is his case that Kongorro remained with 15 Acres. He stated that the surveyor demarcated the 25 Acres but he did not avail the mutation form. He also stated that the surveyor who did the demarcation is not a witness in this case. He said he paid for all the dues in order to get the title but he lost the receipts. He stated that Ntari ole Kobaai (the 1st Defendant) undertook the succession proceedings fraudulently. 1. On cross examination, he stated that ole Kobaai Kongorro’s land was approximately 40 Acres and he bought 25 Acres. He stated that he bought the land in 1995 and he was neighbours to the said Kongorro for almost twelve (12) years. He told the court his title deed was issued on the 25th July 1996. He said Ntari ole Kobaai (1st Defendant) could not claim the entire parcel measuring 40 Acres because he had bought 25 Acres. He said he sold the 25 acres to the plaintiff. He could not confirm that Ntari Ole Kobaai (1st Defendant) had been paid by **Kenya Electricity Transmission Company** 1. PW3 Stephen Lintayo Shaankua adopted his witness statement dated 17th May 2022 as his evidence in chief. He confirmed that his brother Sialala ole Shaankua sold the land to the Plaintiff. 2. When cross examined by counsel for the 1st Defendant, he said PW2 entered the land in 1996. He said his father told him PW2 had bought the land from ole Kobaai Kongorro. He confirmed that PW2 later sold the land to the Plaintiff. 3. On re-examination he told the court that Ntari Ole Kobaai is his cousin and that he does not reside on Kajiado/Ildamat/417. He said the 1st Defendant did not object to PW2’s occupation of the land. He said he knows the boundaries of the land. 4. PW4 Amos Kamakia, adopted his witness statement as his evidence in chief. He told the court that he is employed by the Plaintiff to take care of the bee hives and the land. 5. When cross examined by the counsel for the 1st Defendant he told the court that Pw2 is his brother. He said the 25 Acres belonged to Pw2 though he did not witness the purchase of the land. He stated that in 2019, he was employed by the Plaintiff to take care of his beehives. He said the beehives were put up in the year 2019. 6. On re-examination, he stated that ole Kobaai Kongorro’s land is 15 Acres. He also told the court that the KETRACO lines passed over the land. He said PW2 went to live on the suit property in the 1990s. 7. This marked the close of the Plaintiff’s case. **EVIDENCE OF THE DEFENDANTS** 1. DW1 Ntari ole Kobaai adopted his witness statement dated 3rd September 2021 as his evidence in chief. He also produced the Bundle of Documents dated 3rd September 2021 as exhibits D1 to D18 respectively. He also produced the documents in the supplementary Bundle of Documents as exhibits D19 to D25 respectively. He told the court he did not use the area list to obtain the title to institute succession proceedings. 2. When cross examined by counsel for the Plaintiff, he stated that he was the next of kin of ole Kobaai Kongorro. He stated that in respect of the parcel Kajiado/Ildamat/129, the acreage is not stated. He stated he had not done any search by the time he was petitioning for Grant of letters of Administration. 3. He stated that he went to the Land Registry in 2019 and asked for Kajiado/Ildamat/129. He admitted that the title deed for Kajiado/Ildamat/129 was issued on 21st September 2020. He also stated that he sub divided the land into four portions. He admitted he was Paid Kshs1 million by **Kenya Electricity Transmission Company** as compensation**.** 4. On re-examination, he stated he was the heir of ole Kobaai Kongorro as per the records held by the Group Ranch and land Adjudication Officer when referred to Area List, Exhibit D13, he said there were alterations and he did not know who wrote 5.44 Hectares against parcel 129. He also could not confirm whether Kajiado/Ildamat/417 came from Kajiado/Ildamat/129. He said he was paid by **Kenya Electricity Transmission Company** he was the only beneficiary. 5. DW2, Oseur ole Lolosekenkei adopted his witness statement dated 3rd September 2021 as his evidence in chief. 6. When cross examined by counsel for the Plaintiff he told the court that he knew Daniel Lemon who was the chairman of Olkiloriti Group Ranch for many years. He told the court he was the current chairman of the Group Ranch. He confirmed ole Kobaai Kongorro was a member of the Group Ranch. He said he did not know why parcel 129 was less than the other parcels. He said 417 does not exist but parcel 129 was approximately 15.56 Hectares. 1. He could not confirm the title for Kajiado/Ildamat/417 was issued in 1996. He said Sialala Ole Shaankua was not a member of the group Ranch but a son of Kobaai Shaankua who was a member of the Group Ranch . He also stated Ntari ole Kobaai was the son of Wapi Kobaai who was also a member of the Group Ranch hence Ntari and Sialala are cousins. He stated that Kongorro did not have children. He admitted that he signed the documents so that the 1st Defendant could get a title. He also stated that the 1st Defendant does not reside on the land. 1. On re-examination he stated that he knew Kajiado/Ildamat /129 but not 417. Further that Shalala ole Shaankua was not a member of the Group Ranch hence a non member could not get any title. He could not confirm if Sialala bought land from Kongorro. He also stated Kongorro did not have children hence Ntari ole Kobaai was given his land. He said there was nothing to show that a portion of the land was allocated to Sialala ole Shaankua. 2. DW3, Nancy Isatia, a senior Land Adjudication officer Kajiado County testified on the 22nd October 2025. She produced the documents in respect of Olkiloriti Group Ranch. They were the members Register and the Area list. She confirmed that Sialala ole Shaankua was not a member of the Group Ranch but ole Kobaai Kongorro was member No. 68. His title is 129 and, Acreage is 15.56 Hectares. 3. She also stated that parcel No.417 exists. The acreage is given as 10.12 Hectares but the details of the beneficiary are not given. That Entry No.1 is a transfer to Sialala ole Shaankua from parcel No.19 Olkiloriti Group Ranch. She also stated that Kajiado/Ildamat/19 was sub-divided into 100 parcels. She produced the documents as exhibits in this case. 1. When cross examined by counsel for the 1st Defendant, she stated that the Land Registrar would use the members Register and the Area list to issue titles to members. She also stated that there was a cancellation on parcel 129 yet they are committees to support the same. She also admitted that there was nothing to show that parcel 417 emanated from 129. 2. When cross examined by counsel for the Plaintiff, she stated that the members Register is prepared by the Group Ranch. That the officials gave the instructions to the land Adjudication Officergave the instructions to the land Adjudication officer and the surveyor on the number of parcels. He also stated that ole Kobaai Kongorro was members No.68. She maintained that the officials of the Group Ranch could explain the alternations. She confirmed that parcel No.129 has a cancellation from 15.56 Hectares and written 5.44Hectares while 417 is written 10.12 Hectares. 1. She said she was not aware that the title; Kajiado/Ildamat/417 was issued in 1996. She also stated that she did not know the process of how land bought by a non-member could be registered. 2. On re-examination, she stated that their communication between the Land Adjudication office and the Land Registration who was to be issued with a title. She stated that Ntari ole Kobaai was to be issued with a title measuring 15.56 Hectares. 3. This marked the close of the defendants’ case. 4. At the close of the oral testimonies parties tendered final written submissions. **THE PLAINTIFF’S SUBMISSIONS** 1. Counsel for the Plaintiff files his submissions dated 20th January, 2026. 2. He submitted that together with his predecessor in title Sialala Ole Shaankua, they have been in uninterrupted, peaceful possession of Parcel 417 for a period of 31 years since 1995. 3. It was counsel’s submission that even if the 1st Defendant validly acquired the parent Parcel 129, the said acquisition was legally subject to the Plaintiff's overriding interest as the person in actual occupation. 4. He submitted that the area list of parcels 129 and 417 was adopted by the Olkiloriti Group officials and that the said record was maintained by the Kajiado Land Adjudication Office. 5. He added that the 1st Defendant failed to make the required legal inquiries regarding the persons in possession of the land before acquiring his title. 6. He relied on **Section 23(5) of the Land Adjudication Act, Section 13(4) of the Land (Group Representatives) Act (repealed), Section 107(1) of the Land Registration Act** and the case of **Pentecostal Assemblies of God (Bahati P.A.G Church) V Elikana Salamba & 3 Others [2011] eKLR.** 7. It was his submission that parcel 129 measured approximately 13.4 acres but the 1st Defendant craftily expanded it to 40 acres thus misleading the Land Registrar. 8. He further submitted that the original owner, Ole Kobaai Kongorro, sold the 25 acres to his nephew, Sialala who received the full purchase price, put him in possession and facilitated his registration. 9. He submitted that the said arrangement created a common intention and that the overlapping doctrines of constructive trust and proprietary estoppel prevent the 1st Defendant from reneging on this agreement or taking advantage of procedural lapses to defeat the Plaintiff's title. 10. He cited the case of **Macharia Mwangi Maina & 87 Others V Davidson Mwangi Kagiri [2014] KECA 880 (KLR) and** **Willy Kimutai Kitilit V Michael Kibet [2018] eKLR.** 11. He relied on **Section 26(1) of the Land Registration Act** and submitted that the 1st Defendant fraudulently acquired title to parcel no. 129. 12. On the 1st and 2nd Defendants’s counter claim, counsel submitted that the 1st Defendant in acquiring the said parcel used the Magistrate's Court after filing succession cause (No. 05/2020). 13. He went on to submit that the 1st Defendant claimed the estate was valued at Kshs. 2,000,000 comprising 5.44 hectares in order to fit within the Magistrate's pecuniary jurisdiction limit of Kshs. 7,000,000. 14. He added that the 1st Defendant subsequently used the grant to register a 40-acre parcel, which would have had an approximate value of Kshs. 18,000,000 at the time, far exceeding the court's jurisdiction. He argues that the succession proceedings were therefore a nullity. 15. He cited the case of ***Boniface Waweru Mbiyu V Mary Njeri & Another [2005] eKLR*** and***Suleiman Said Shabhal V Independent Electoral & Boundaries Commission & 3 Others [2014] eKLR****.* 16. In conclusion, he urged the court to rely on principles of equity and substantive justice rather than procedural loopholes. He submitted that his 25-acre title should be recognized and protected and that the 1st Defendant should only be entitled to the remainder of the parent parcel allowing both parties to peacefully coexist. **THE DEFENDANTS’ SUBMISSIONS** **1ST DEFENDANT’S SUBMISSIONS** 1. Counsel for the 1st Defendant filed his submissions dated 9th January, 2026 where he identified two issues for determinations: 2. **Who between the Plaintiff and Defendant holds a valid title?** 3. **Who bears the costs of the suit and counterclaim?** 4. On the first issue, it was his submission that in cases of competing land titles, the court must look beyond the mere possession of a title deed and trace its foundational validity. He relied on the case of **Hubert L. Martin & 2 Others V Margaret J. Kamar & 5 Others [2016] eKLR** and **Munyu Maina V Hiram Gathiha Maina (2013) eKLR**. 5. He submitted that the Plaintiff was the registered owner of parcel Kajiado/Ildamat/417. He added that the same was from purchase from Sialala Ole Shaankua, who allegedly bought it from Ole Kobaai Kongorro. 6. Counsel argued that in applying the evidentiary and contract laws cited above, the Plaintiff failed to produce any sale agreements, payment proofs (Mpesa/Bank statements) or executed transfer documents to support this chain. 7. He cited **Section 3(3) of the Law of Contract Act** and submitted that the Plaintiff did not produce any sale agreement in support of his allegation. 8. He added that Sialala Ole Shaankua’s name did not appear in the Group Ranch Register of Members or Adjudication records making it procedurally impossible for him to have directly acquired Group Ranch land. 9. He also submitted that the Plaintiff gave contradicting testimony when he alleged that parcel 417 emanated from 129 while the green card showed that 417 emanated from parcel 19. He added that the green card could not trace parcel 417 and 19 to Ole Kobaai Kongorro (deceased). 10. He submitted that evidence on record showed that the adjustment of acreage from 15.56ha to 16.2ha was informed by ground survey findings and also sanctioned by the survey department. 11. It was counsel’s submission that Plaintiff’s root of the title was untraceable and thus invalid. 12. He further submitted that the Plaintiff failed to provide evidence that he held a valid title. He relied on the case of ***Dina Management Ltd V County Government of Mombasa & 5 Others [2023] KESC 30 (KLR)****.* 13. He submitted that the 1st Defendant held a clean, traceable title which was deserving of legal protection under **Sections 24, 25 and 26** of the **Land Registration Ac**t and **Article 40** of the **Constitution**. 14. On the final issue of costs, he relied on **Section 27 of the Civil Procedure Act** and submitted that he was entitled to costs as the Plaintiff failed to prove his case on a balance of probabilities. 15. In conclusion he urged the court to allow the 1st Defendants counterclaim as prayed. **2ND DEFENDANT’S SUBMISSIONS** 1. Counsel for the 2nd Defendant filed her submissions dated 23rd November, 2025 where she identified the following issues for determination: 2. **Whether the Plaintiff in the main suit was properly registered as the owner of Kajiado/Ildamat/417.** 3. **Whether the 1st Defendant in the main suit was properly registered as the owner of KAJIADO/ILDAMAT/129.** 4. **Whether the court should order the land registrar to undertake survey and beacon Kajiado/Ildamat/417 and Kajiado/Ildamat/129 and amend RIM accordingly.** 5. On the first issue, she relied on Section 24 of the Land Registration Act and Section 109 and 112 of the Evidence Act and submitted that according to the Area List, Parcel No. 19 was subdivided into Parcel Nos. 1 – 140 therefore Parcel No. 417 could not have emanated from Parcel No. 19. 18. 6. He further submitted that the green card showed that Kajiado/Ildamat/417 was transferred from Olkiloriti Group Ranch to Sialala Ole Shaankua who sold it to the Plaintiff in the main suit. 7. He added that if Sialala Ole Shankua was procedurally registered as the owner of Kajiado/Ildamat/417 his name should have appeared on the member register and on the Area List against Parcel No. 417. 8. Counsel submitted that since Sialala Ole Shaankua did not appear in the Member Register and Area List of Olkiloriti Group Ranch, his registration as the proprietor of Kajiado/Ildamat/417 was marred with irregularity, impropriety and/or fraud. 9. He added that in the circumstances, he could not pass a good title to the Plaintiff. He cited the case of ***Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KE [2023] KESC 30 (KLR).*** 10. On the second issue, counsel submitted that ad per the greencard Kajiado/Ildamat/129 was first registered in the name of Olkiloriti Group Ranch on 19th October 2020 and the same transferred to ole Kobaai Kongorro and later to Ntari Ole Kobaai on 21st September, 2020 and a Title deed issued. 11. He went on to submit that Ole Kobaai Kongorro appeared in the Member Register as Member No. 68. He added that he also appeared on the Area List as entitled to Plot No. 90 which translated to Title No. 129. 12. Counsel also submitted that the 1st Defendant produced a Transfer of Land Form duly executed by himself and officials of Olkiloriti Group Ranch. 13. It was his submission that the 1st Defendant testified that he acquired the suit parcel via transmission. He added that he produced a Certificate of Confirmation of a Grant and there was no evidence to the contrary. 14. He cited the case of **Munyu Maina V Hiram Gathiha Maina (2013) eKLR** and submitted that the 1st Defendant demonstrated the root of his title. 15. He urged the court to hold that he is procedurally, regularly and/or legally registered as the owner of Kajiado/Ildamat/129 now subdivided into Kajiado/Ildamat/10837- 10840. 16. On the final issue, he relied on Section 18(2) of the Land Registration Act No. 3 of 2012 that mandates the District Land Registrar to resolve boundary disputes of land with general boundaries. 17. He submitted that they did not object to an order directing the 2nd Respondent to conduct a site visit for purposes of ascertaining the ground location of the suit properties and make the necessary recommendation. 18. He added that the same was not limited to amendment of the pertinent Registry Index Map to reflect the survey or an order for the rectification of register for Title Number Kajiado/Ildamat 129 as prayed by the Plaintiff. Counsel argued that the Plaintiff’s prayer no. c was however untenable and should not issue. 19. In conclusion, he urged the court to dismiss the claim with costs to the Defendants and that the 1st Defendant’s/Plaintiff in the Counter Claim suit be allowed in terms of prayer (a), (b) and (c) only as against the 3rd and 4th Defendants in the Counter Claim. **ANALYSIS AND DETERMINATION** 1. I have considered the pleadings the evidence on record, the written submissions and the authorities cited. The issued for determination are:- 2. **Whether the plaintiff was properly registered as the owner of Kajiado/Ildamat/417.** 3. **Is he entitled to the reliefs sought in the plaint?** 4. **Is the 1st Defendant entitled to the reliefs sought in the counterclaim?** 5. **Who should bear costs of the suit?** 6. It is the Plaintiff’s case that he is the registered proprietor of parcel known as Kajiado/Ildamat/417 measuring 10.12 hectares. That he purchased the same from Sialala ole Shaankua (2nd Defendant in the counterclaim). He produced copies of his tittle and issued on the 30th November 2009, a title deed issued to Sialala ole Shaankua on the 25th July 1996 and the Green Card as exhibits in this case. 7. It is also his case that the 1st Defendant misled the 2nd Defendant into issuing him (1st Defendant) with a title deed for Kajiado/Ildamat/129 measuring 16.2 Hectares whereas that parcel should only measure 5.44 Hectares. 8. PW2 Sialala ole Shaankua told the court that parcel No.129 was measuring approximately 15.56 Hectares was allocated to ole Kobaai Kongorro who was member No.68 Olkiloriti Group Ranch. He further stated that the said Ole Kobaai Kongorro sold to him 25 acre of his land. PW2 paid the full purchase price and a title for the said portion was issued in his name on the 25th July 1996 as Kajiado/Ildamat/417. 9. PW2 said he settled on the land with his family. His Uncle ole Kobaai Kongorro continued occupying the remaining portion. He stated that Kongorro passed on, in the year 2006 without processing his title for the remaining portion. It was his testimony that the Area list for Olkiloriti Group Ranch was amended in which the area of parcel 129 which was initially indicated as 15.56 Hectares was cancelled and an area of 5.44 hectares inserted. That this is the record kept and maintained by the Kajiado Land Adjudication office. DW3, the Senior Land Adjudication officer Kajiado confirmed that the area list emanated from the officials of Olikiloriti Group Ranch. 10. It is the Plaintiff’s case that the 1st Defendant Petitioned, the magistrate’s court at Kajiado in Succession cause No.5 of 2019 seeking to be the Administrator of the estate of Ole Kobaai Kongorro (Deceased). The 1st Defendant never disclosed that the actual acreage of Kajiado/Ildamat/129 was 5.44Hectares. That this meant that the Land Registrar recorded the area of the parcel as 15.56 hectares instead of 5.44 hectares. 11. Pw2, Sialala ole Shaankua confirmed that he was in possession of Kajiado/Eldamat/417 for fourteen (14) years from 1995 to 2009. He sold it to the plaintiff in the year 2009. I agree with the Plaintiff’s submissions that those facts have not been controverted. 1. Section 30 (9) of the Registered Land Act (Repealed) provides that:- **Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register-** **(g)the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed”.** 1. **Section 107 (1) of the Land Registration Act, 2012** provides that:- **“ Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act”.** 1. I agree with the Plaintiff’s submissions that even before confirmation of the Grant the 1st Defendant was aware that the Plaintiff was in possession of Kajiado/Ildamat/417 but proceeded with the succession process and acquisition of title for Kajiado/Ildamat/129 measuring 15-56 Hectares. In the case of ***Pentecostal Assemblies of God ( Bahati P.AG Church) Vs Elikana Salamba & 3 Others (2011) eKLR.*** *M Koome J ( as she then was) held as follows:-* **" The issue that I find most vexing in this matter as in other matters involving a claim of land by a registered proprietor, is the issue of whether before the plaintiffs were issued with this certificate of title, there was an enquiry of the persons who were entitled and who were in possession of the title... I4. It follows that if the requisite enquiries were made as provided for under section 30 (g) of Cap 300 the rights of the defendants which were in any event highlighted but were not addressed, the plaintiffs would not have been issued with a title for 2.5 acres but the portion of V: acre that they were occupying. For this reason, I am not satisfied that the plaintiffs have been able to prove their claim to the required standard that the defendants have trespassed and encroached on their parcel of land. 15. The defendants were in occupation long before the plaintiffs were issued with the certificate of title. Accordingly, the plaintiffs' claim does not meet the threshold for this court to order an eviction of the defendants. In the plaintiffs’ suit, they sought any other relief that this court may deem it to grant in the interest justice. Consequently. the order that meets the interest of justice is that the plaintiff should remain in occupation of 1/2 acre of Title No. Kitale Municipality Block 6/23 that is where they have always been in occupation and where they have constructed a church. For peaceful coexistence. Defendants are restrained from destroying, obstructing the Plaintiff occupation of that portion of land. As regards the balance of the other portion of land covered in the certificate of title, I find it is occupied by the defendants since 1988 before the plaintiffs obtained the certificate of title. The defendants have an overriding interest as bonafide occupants before the title was issued. They cannot therefore be evicted as an order of eviction will not be in the interest of justice”.** 1. Having stated that Sialala ole Shaankua was in possession of the Kajiado/Ildamat/417 from 1995 to 2009 without any opposition from ole Kobaai Kongorro who resided on the remaining portion of the land after he sold to Sialala and that later Sialala sold to the Plaintiff who took occupation in 2009, I find that the Plaintiff’s interest could not be defeated simply because his parcel was not inserted in the Registry Index Map. 2. In the case of ***Macharia Mwangi Maina & 87 Others Vs Davidson Mwangi Kagiri (2014) KECA 880 (KLR)*** the court of Appeal held as follows:- 3. **“The evidence on record revealed that the Appellants in possession of the suit property and as such, they came within the protection of section 30(g) of the Registered Land Act. The Respondent having put the Appellants in possession of the suit property created an overriding interest in favour of the Appellants in relation to the suit property.** ** The Respondent had put the Appellants in possession of the suit property not as licensees but with line intention that he was to transfer the individual plots purchased by them. He had received 'he purchase price from the Appellants and thus created an implied and constructive trust in Cavour of the people who had paid the purchase price pending the sale of the suit property. Therefore, the doctrines of constructive trust and proprietary estoppels were applicable and the Respondent could not renege.** 1. **A constructive trust was based on common intention which was an agreement, arrangement or understanding actually reached between the parties and relied on and acted on by the claimant. In the instant case. there was a common intention between the Appellants and the Respondent in relation to the suit property. Nothing in the Land Control Act prevented the claimants from relying upon the doctrine of constructive trust created by the Respondent subject to the Land Control Act was enforceable.** 2. **The Respondent till along had acted and represented that the Appellants were going to obtain proprietary interests in the suit property, Constructive trust is an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention (Steadman v Steadillan 119701 AC 536,540).** 3. **The evidence on record led the Court to conclude that the suit property was in existence as L.R NO 6324/8, which upon subdivision became C.R No registered under the name of the Respondent which the Appellants had been put in possession of by the Respondent himself. The notion that the suit property no longer existed was not tenable. The suit property existed”.** 4. Similarly in ***Willy Kimutai Kitilit Vs Michael Kibet (2018) eKLR*** the court of appeal held in part as follows :- **“18.The doctrines of equity are part of our laws although Section 3 of the Judicature Act subordinates common taw and the doctrines of equity to the Constitution and written law in that order. Sections 3(3) of the Law of Contract Act and Section 38 (2) of the Land Act as amended clearly stipulate that the requirement that contracts for disposition of an interest in land should be in writing does not affect the creation or operation of a resulting, implied or constructive trust. The equity of proprietary estoppel is omitted but as the decision in Yaxley Vs. Gotts [2000) Ch. 162 (Yaxley’s case) on which the Court in Macharia Mwangi Muina Decision relied. amongst others, shows that the doctrine of constructive trust and proprietary estoppel overlaps and both are concerned with equity's intervention to provide relief against unconscionable conduct."** It is my view that upto his demise in the year 2006 the ole Kobaai Kongorro, did not object to Sialala’s presence on the land. 1. I am satisfied that the Plaintiff who bought the suit property from Sialala ole Shaankua did so in good faith. It is my view that the 1st Defendant cannot wish away the Plaintiff’s presence on the suit land. 2. I find that the plaintiff has proved that he was properly registered as the owner of the suit property having bought the same from Sialala ole Shaankua. I find that he is entitled to the reliefs sought in the plaint. 3. It is the 1st Defendant’s case that he is the registered proprietor of Kajiado/Ildamat/129. That his parcel appears in all the records including the Registry Index Map for the Group Ranch, whereas Kajiado/Ildamat/47 does not exist. 4. DW3 Nancy Isatia the senior Land Adjudication officer told the court that parcel No.417 exists in the Area list. The acreage was given as 10.12 Hectares though there were no details as to who the beneficiary was. She told the court that the officials of the Group Ranch could explain the alterations in respect of parcel No.129 and 417. She also admitted on cross examination that the process of registering land that is not registered to the beneficiary but has been sold to another person is not defined in the land Adjudication Act. 5. I am not satisfied that the 1st Defendant has proved that the title held by the Plaintiff was fraudulently obtained. The Plaintiff bought the suit property from a relative of the said ole Kobaai Kongorro who already had a title 6. For these reasons, I find that 1st Defendant has not proved his case on a balance of probabilities. He is therefore not entitled to the reliefs sought in the counterclaim. His counterclaim fails. 7. Accordingly, judgment is entered for the Plaintiff as against the Defendant’s jointly and severally in the following terms: - 8. That an order is hereby issued for the rectification of the registers for Title Numbers Kajiado/Ildamat/10837, Kajiado/Ildamat/10838, Kajiado/Ildamat/10839 and Kajiado/Ildamat/10840 by directing that all registrations and entries therein be cancelled and the registers be closed. 9. That an order is hereby issued directing that Government Surveyors to undertake a survey and beacon parcels of land comprised in Title Number Kajiado/Ildamat/129 and Title Number Kajiado/Ildamat/417 and proceed to accordingly amend the pertinent Registry Index map to reflect the survey. 10. That an order is hereby issued for the rectification of register for Title Number Kajiado/Ildamat/129 by directing that its approximate area be amended by deleting its current area of 16.2 Ha and substituting therewith its actual area as surveyed by the Government Surveyor as per order (b) above. 11. That each party do bear own costs. **Judgment dated, signed and delivered virtually at Nakuru this 18th day of June 2026.** **L. KOMINGOI** **JUDGE** **In presence of :-** Mr. Gichuka for the Plaintiff Mr. Nairi for the 1st Defendant No appearance for the 2nd – 4th Defendants (in the Counterclaim) Court Assistant: Derrick/ Irene.