https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/415

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **ELC CASE NO. E023 OF 2024** **CECILIA MUGANGA VS PATRICK OKUMU OLIACHA** **JUDGMENT** ***Plaintiff’s case*** 1. Vide an amended plaint dated 7th July 2025, the plaintiff seeks orders as follows: 2. That a declaration be and Is hereby made that the defendant’s current occupancy, developments and continued utilization of part of the plaintiff’s land namely BUNYALA/BULEMIA/5327 are illegal 3. That the defendant be and is hereby permanently evicted from the parcel of land namely BUNYALA/BULEMIA/5327and his illegal structures thereon be demolished. 4. That Port Victoria Sub County Police Commander to oversee and provide security during the eviction of order (b) 5. That the defendant either by himself, his family members, agents or anyone working for him and or claiming under him be and is hereby permanently restrained from entering, selling, using dealing or in any manner interfering with the suit land namely BUNYALA/BULEMIA/5327 6. That the costs of the suit be provided for. 7. The suit is premised on the pleadings that the plaintiff is the registered owner of the suit land which originally was registered in the names of one ANDREA OLIACHA, now deceased. That it was Hudson Barasa Ogubi, the plaintiff’s husband who purchased the said parcel of land on 4th day of January 2019 where the defendant was a witness thereto and even attended the land control board for a consent. That nevertheless, the defendant has encroached onto the suit land illegally and without any colour of right depriving the plaintiff of the use of the same. she prayed that the orders thus sought be allowed. 8. In evidence PW1 the plaintiff, Cecilia Okumu testified that she purchased the suit and from one Andrea Oliacha on 3rd December 2018 and the agreement was executed in the presence of the defendant herein. That defendant has now moved into her suit land illegally and gone ahead to erect structures thereon as well as interring the remains of his deceased wife on the suit land hence trespassing and illegal occupation. She prayed for eviction orders as well as the orders prayed above. She produced her documents in evidence as follows: Pex no. 1 her Identity card, Pex no. 2 copy of title deed for the suit land, Pex no. 3 copy of search certificate for the said land, Pex no. 4 copy of the sale agreement, Pex no. 5 photographs of the land, Pex no. 6, the mutation form for BUNYALA/BULEMIA/315. That as per the agreement, Kshs 622,000 was the amount paid for the land. That she was not aware that the land BUNYALA/BULEMIA/315 had many beneficiaries. That the seller’s name was ANDREA and not ANDREW OLIACHA BULUMA. she does not the seller’s date of death. Her husband is the one who purchased the property for her. 9. PW2 Titus Ojwang the District County Surveyor Busia testified that on 18/11/2018 the subdivision of the suit land BUNYALA/BULEMIA/315 as per the mutation dated 14/11/2018 was done by a licensed surveyor. The subdivision created 4 plots namely BUNYALA/BULEMIA 5326, 5327, 5328 and 5329. Andrea Oliacha Buluma was the registered owner of the parent suit land BUNYALA/BULEMIA/315. Prior to the subdivision, Hudson invited him to locate the exact location of the portion he had purchased from the entire suit land and he did that in the presence of the seller, Andrea, Hudson (plaintiff’s husband) and the defendant herein Patrick who was Andrea’s son. Andrea sold 1acre to Hudson and the instruction was that the same be curved out not to touch Andrea’s homestead. This was the plot that was registered as BUNYALA/BULEMIA 5327. Andrea remained with portion A in the mutation which was registered as BUNYALA/BULEMIA 5326. The mutation was done by his colleague and his role in the matter was to ascertain the plaintiff’s parcel of land’s position in the entire suit land.it is not true that in 2018, Andrea was bedridden. He could talk and walk. He did not establish the defendant’s portion on that day. 10. PW3 Hudson Barasa Ogubi, the plaintiff’s husband testified that he purchased the suit land vide a sale agreement dated 4/1/2019 and paid a consideration price of Kshs 660,000 as full payment for the same. That the seller, Andrea Oliacha proceeded to subdivide the suit land being originally BUNYALA/BULEMIA/ 315 where his portion, BUNYALA/BULEMIA 5327 emanated. The seller went ahead and obtained a land control board consent and the suit land was eventually registered in the names of his wife. The defendant has therefore no legal right to trespass onto his wife’s property. The property was vacant all through the transaction. It was in 2025 when he visited the land that he found the defendant had encroached onto their property by burying his late wife on the portion he purchased and was utilizing the said portion illegally. He prayed for eviction and injunction orders against the defendant. He tried to stop the burial, but the defendant turned hostile. He has no marriage certificate to prove the plaintiff is his wife. He bought the land and had it registered in her name. That he bought a total of 1.5acres from Andrea but the title deed is indicated that the property is approximately 1acre. Andrea sold to him 2 portions of the land. Only 5327 is in contention. The defendant states that his parcels are 5328 and 5329, which is not true since he poured sand on 5327.The defendant, in his statement, admits the plaintiff as his wife. the two parcels of land namely 5328 and 5329 are not registered in his wife’s names. Only 5327 is. He got compensated for the extra missing ½ acre in the other property he purchased so he has no issue with the acreage on 5327. 11. PW4 Tadeyi Mukudi Muliro testified to have been a witness to the sale agreement between Hudson who is the plaintiff’s husband and Andrea at the time of the purchase of the land on 4/1/2019. That the 1st defendant trespassed onto the plaintiff’s land and should thus be restrained. He knows the parcel of land 5327 very well. the land has cassava plantation and defendant’s wife’s grave on it. The property measures 0.39HA. Hudson purchased 1.5acres of the primary suit land though was only allocated the 0.39ha. the rest was Hudson was compensated in another parcel he bought whose number he cannot recall. 12. In her submission, the plaintiff stated that she is the registered owner of the suit land, a fact which has not been challenged in evidence by the defendant. That further, all the processes of acquisition of the said land were regular hence rendering her title indefeasible pursuant to section 25 and 26 of the Land Registration Act. That no fraud or any illegality was pleaded by the defendant and none was proved towards the acquisition of the suit land 5327. She relied on the case of ***Charles Kiarie & 2 others vs Administrators of the Estate of the John W. Mathare & 5 others [2013] e KLR and the case of Vijay Marjuria vs Nansingh M. Dabar & Another [2000] e KLR.*** That defendant did not adduce any evidence that he had overriding interests over her parcel of land Bunyala/ Bulemia 5327 to benefit exemption to the orders thus sought. That defendant and his witnesses have admitted to occupation of the plaintiff’s suit land and further buried the remains of the defendant’s wife thereon. That the land was created in 2018 and surveyed by plaintiff’s witness Titus who established the portion belonging to the plaintiff as marked in the mutation forms and boundaries. The parcels Bunyala/ Bulemia/5329 is registered in the names of Andrea and Tado Oliacha. The defendant’s attempts to push the plaintiff from her registered parcel to that registered in the names of his father is ill motivated. That they have proved trespass by the defendants. She prays as per the orders sought. ***Defendant’s case*** 1. In his statement of defence dated 17th February 2025 the defendant denied all the allegations as contained in the plaint. In his evidence. DW1 Patrick Juma Oliacha testified that he was the eldest son of Andrea Oliacha the registered owner of all that parcel of land known as BUNYALA/BULEMIA/315 measuring approximately 4.018ha. That the plaintiff and her husband purchased 1.5HA of the primary suit land and took possession of the same of the vacant land in 2016. Hudson was in 2019 registered to own BUNYALA/BULEMIA/ 5329 while the plaintiff got the BUNYALA/BULEMIA/ 5327. That their portions as per the mutation form produced by the plaintiff were marked as ‘D’ and ‘C’ respectively. That Hudson took possession of the parcel 5329 and even poured building materials thereon. he is now surprised that the plaintiff wants to take possession of 5327 which ought to be his portion as allocated to him by his father. That he has utilized the parcel 5327 continuously over a period of more than 12 years and even buried his late wife on the suit land, a fact which is recognized by the local administration. That the registration of the plaintiff to 5327 was an error which ought to be corrected to reflect the true position being, 5328. He produced documentary exhibits of Dex no. 1 being search certificate for Bunyala/ Bulemia 5326, Dex no. 1 burial notification for his late father Andrea Oliacha Buluma, Dex no. 3 the letter from the Assistant chief. Hudson, in his presence, purchased property, paid the full purchase price and even attended the land control board for a consent but had the suit land registered in the names of his wife. That Hudson waited until the demise of his father to take possession and has now grabbed his portion of land. The surveyor who partitioned the primary land, David Wanyama was present at the time of purchase of the suit land by Hudson. Husdon purchased the portion on the hill and poured sand thereon in 2018.he does not know how the plaintiff got to have the suit land registered in her name as he did not hand him the title deed. His house is built next to the disputed portion 5327 at its apex. His father pointed to Hudson the portion he sold to him in the presence of Tadeya, Dancun Wanyama and another man whose name he did not capture. He does not know where the boundaries of the primary suit land 315 are located. In 2024, He buries his late wife on the empty plot since he has since remarried. His culture does not allow him to bury a former wife on the land he utilizes with his current wife. prior to his father’s demise, he did not hear him complain Hudson had trespassed onto his. Duncan is not his witness in this case.5328 and 5329 are still in the names of his late father. even if a surveyor determined that the suit land 5327 is encroached by him, he was not ready to vacate as he is the one entitled to the plot next to the lake. 2. DW2 Raphael Ochieno Oliacha testified that he was the youngest son to the late Andrea Oliacha. That he was present when Hudson purchased 1.5 acres of the primary suit land and present also were Tadei Mukudi and Dancun. His brother Patrick was present during the purchase. That Hudson purchased BUNYALA/BULEMIA/5329 and not 5327 and even brought materials on the said land. That the suit land 5327 has been in their family possession and occupancy even during the pendency of their father. That the defendant buried his wife on the same land. That the land Hudson purchased is still vacant and with the same building materials. That indeed the plaintiff is the wife to Hudson. That his father never escorted Hudson to the Land Control Board. At no time did his father ever protest Hudson’s purchase of 5327. He farms on the suit land and has done so for over 20 years. he will not vacate the property. That plaintiffs purchased 5327 and 5329. The portion the plaintiff claims is not hers. 3. DW3 Mary Awino Oliachi testified as the widow of the late Andrea Oliachi. That Oliachi began ailing in January 2025 and died on 10/8/2025. That her husband only sold the portion on the hills not the one next to the lake. The property is still registered as LR BUNYALA/BULEMIA/315 in her husband’s name. at no time has subdivision ever been done. that her sons lied that the plaintiff purchased 5327 and 5329. No such numbers exist. Her husband sold to Hudson 1.5 acres. She does not know Land Control Board. A surveyor visited the land prior to material being placed to the land. she was not present during the survey process. Patrick and Raphael were also not present during the process. The portion Hudson is claiming to be his is in her occupation. She signed the sale agreement between her husband and Hudson in 2016. Her husband never sued the Hudson for occupying th wrong portion of land neither has she. If the plaintiff demands a refund of her money, they will refund her if she refuses to occupy the upper part of the land. 4. DW4 Winfridah Agutu Omondi stated that she did not know the plaintiff. she only knew Ogubi. That her husband was the eldest son of Andrea and brother to the defendant. That her father in law sold to Hudson 1.5 acres from the property BUNYALA/BULEMIA/315. She witnessed the transaction though did not sign the agreement. Her father in law subdivided the primary suit land and Patrick accompanied him to the Land Control Board. She does not know whether her father in law signed the transfer documents. Patrick was the one accompanying him in all the transactions. Only a surveyor can determine which parcel is where. At no time did she see a surveyor visit the land. she was not present when her father in law pointed out the portions allocated to Hudson. 5. In his submissions, the defendant stated that the plaintiff did not acquire the parcel of land in dispute legally as she did not sign any land sale contract with the seller as provided for under section 38(1) of the Land Registration Act as read with section 3 of the Contract Act and neither was she a witness to the said agreement entered into with Hudson Barasa Ogubi. That there was also no spousal consent to support the said transaction hence a violation of Article 45(3) of the Constitution and section 28 and section 93 of the Land Registration Act. section 12(5) of the Matrimonial Properties Act. he relied on the cases of Echaria v Echaria [2007] e KLR and Josephine Wambui vs John Karanja [2018] e KLR, Agnes Nanjala William v Jacob Petrus Vander Goes [2021] e KLR. That further, no spousal consent was obtained from the seller’s spouse hence the transaction void. He prayed for dismissal of the suit with costs. 6. I have considered the evidence, the pleadings and submissions by each of the parties. I find the Issues for determination as: 1. Whether the plaintiff is the lawful proprietor of parcel No. BUNYALA/BULEMIA/5327. 2. Whether the defendant has unlawfully trespassed onto the suit land. 3. Whether the plaintiff is entitled to the reliefs sought. ***Analysis and Determination*** 1. It is common ground that the late Andrea Oliacha Buluma sold a portion of his land to Hudson Barasa Ogubi. The defendant himself admitted witnessing the transaction, the payment of the purchase price and attendance before the Land Control Board. The dispute therefore is not whether there was a sale, but whether the parcel transferred to the plaintiff was the correct parcel. 2. The plaintiff produced a title deed and an official search confirming that she is the registered proprietor of parcel No. BUNYALA/BULEMIA/5327. Under Sections 24, 25 and 26 of the Land Registration Act, registration confers absolute ownership together with all rights and privileges appurtenant thereto. Such title can only be impeached on grounds of fraud, misrepresentation, illegality or procedural impropriety. 3. The defendant neither pleaded nor proved any fraud or illegality in the acquisition of the plaintiff's title. Fraud or illegality must be specifically pleaded and strictly proved. See the cases of ***MFI Office Solutions -vs- Landlords Limited & 3 others[2025] KECA 1200 (KLR) and Arthi Highway Developers Limited -vs- West End Butchery Limited & 6 others [2015] eKLR.***Although he asserted that the plaintiff was registered to the wrong parcel, he neither filed a counterclaim seeking rectification of the register nor sought cancellation of the plaintiff's title. His allegations therefore remained mere assertions unsupported by any legal remedy sought before this court. I agree with the plaintiff’s submissions that a party is bound by his pleadings as held in the case of ***Treadsetters Tyres Ltd V John Wekesa Wepukhulu [2010] Kehc 341 (Klr).*** 4. The evidence of PW2, the County Surveyor, was particularly persuasive. He testified that he was present during the identification of the portion sold to Hudson Barasa Ogubi and confirmed that the portion eventually became parcel No. BUNYALA/BULEMIA/5327 after subdivision. His evidence was independent, professional and remained largely unshaken during cross-examination. 5. On the other hand, the defence witnesses gave contradictory evidence. Whereas the defendant maintained that subdivision had occurred and parcel numbers existed, DW3 denied that any subdivision had ever taken place and insisted that parcel numbers 5327 and 5329 did not exist. These inconsistencies considerably weakened the defence case. 6. Further, the defendant admitted that he buried his late wife on parcel No. 5327 and candidly stated during cross-examination that even if a survey established that he had encroached on the plaintiff's land, he was unwilling to vacate. That evidence amounts to an admission of continued occupation despite knowledge of the plaintiff's registered interest. 7. The defendant also argued that the plaintiff did not personally execute the sale agreement and that there was no spousal consent. The defendants all acknowledged the plaintiff as the wife to Hudson. No evidence was presented in rebuttal of the matter. The widow of the primary suit owner Andrea, Mary Oliacha testified she witnessed the sale agreement between the parties. The argument by the defendant that the sale was void for lack of a spousal consent fails and is inherently misplaced. 8. In any event, the plaintiff's claim is founded on her registered title and not on enforcement of the sale agreement. Once the land was lawfully transferred and registered in her name, she became entitled to all the rights of a registered proprietor. No evidence was led to demonstrate that the registration process violated any mandatory legal requirements so as to render the title impeachable. Under section 26(1) of the Land Registration Act 2012 the title is prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, and such title can only be challenged on the ground of fraud ,misrepresentation or if proved that the title had been acquired illegally, unprocedurally or through corrupt scheme. 9. I therefore find that the plaintiff has proved on a balance of probabilities that she is the lawful registered proprietor of parcel No. BUNYALA/BULEMIA/5327 and that the defendant's occupation thereof is without any legal justification. ***Disposition*** 1. Consequently, judgment is entered in favour of the plaintiff against the defendant as follows:- * 1. A declaration is hereby issued that the defendant's occupation, developments and continued utilization of land parcel No. BUNYALA/BULEMIA/5327 are unlawful. 2. An order of eviction is hereby issued directing the defendant, his family members, agents or any person claiming under him to vacate parcel No. BUNYALA/BULEMIA/5327 within ninety (90) days from the date hereof, failing which eviction shall issue. 3. Upon expiry of the said ninety (90) days, any structures unlawfully erected by the defendant on the suit property may be demolished in execution of this decree. 4. The Sub-County Police Commander, Port Victoria, shall provide security during the execution of the eviction orders if required. 5. A permanent injunction is hereby issued restraining the defendant, whether by himself, his servants, agents, family members or any person claiming through him, from entering, occupying, selling, cultivating, developing or in any manner interfering with parcel No. BUNYALA/BULEMIA/5327. 6. The plaintiff shall have the costs of the suit. Orders accordingly. Right of appeal within 30 days Dated, signed and delivered in Open Court at Port Victoria this 7th July 2026 in the presence of Mr Fwaya, Advocate for the plaintiff, and Mr Ouma, Advocate for the defendant, and Mr Masiga, the Court Assistant. **Hon. Anne Njeru** **SRM**