https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4361

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. 57 OF 2019** **CHEMWENO KIMUTWOL-----------------------------------------PLAINTIFF** **VERSUS** **PETER BIKALA BARASA---------------------------------------1ST DEFENDANT** **COUNTY LAND REGISTRAR,** **TRANS-NZOIA COUNTY--------------------------------2ND RESPONDENT** **THE COUNTY SURVEYOR** **TRANS-NZOIA COUNTY-----------------------------------3RD DEFENDANT** **THE ATTORNEY GENERAL--------------------------------4TH DEFENDANT** **AGGREY A. LINAKHA----------------------------------------5TH DEFENDANT** **HARRISON SIFUNA OKUMU-----------------------------6TH DEFENDANT** **JUDGMENT** 1. The plaintiff approached the court through a further amended plaint dated **13/2/2023**. He seeks: 2. **Declaration that the subdivision and transfers effected by the defendants over Land Title No.** **Trans Nzoia/Suwerwa/240 and the resultant portions are illegal, irregular, and nullities.** 3. **Cancellation of Land Titles No. Trans Nzoia/Suwerwa/416, 1729, and 1730 issued in favour of the 1st, 6th, and 5th defendants.** 4. **Reinstatement of his Land Title No. Trans Nzoia/Suwerwa/240.** 5. **Permanent injunction** 6. The plaintiff contends that at all material times, he was the legal and duly registered owner of Land Title No. **Trans Nzoia/Suwerwa/240**, whose title was issued to him in **1995**. The plaintiff avers that in **2019** or thereabouts, he discovered that the 1st defendant, in collusion with the 2nd and 3rd defendants, had proceeded to irregularly and illegally subdivide the land without his knowledge and consent, resulting in two land titles. **Trans Nzoia/Suwerwa/416** and **417**, in favour of the 1st defendant, who obtained a title deed on **3/4/2019**, and the latter was left under his name. 7. The plaintiff avers that the 1st defendant’s title was further illegally, irregularly, and in collusion subdivided into Land Title No. **Trans Nzoia/Suwerwa/1729 and 1730**, and both were transferred and registered in the names of the 6th and 5th defendants, respectively. 8. The plaintiff avers that the foregoing subdivisions and transfers were irregular and illegal in that they were done without his consent or knowledge, the register, land control board consent, and spousal consent were not sought and obtained, and that due process was not followed. 9. The 1st defendant opposed the suit through a preliminary objection and an amended defence and counterclaim dated **28/11/2019**. 10. The 1st defendant averred that he lawfully and legally reclaimed the rightful land measuring **8 acres**; hence, the question of trespass does not arise. 11. The 1st defendant averred that sometime in **1989**, he filed a Cherangany Land Disputes Tribunal case against Albert Mulati Wepukhulu, which later became **Kitale SRM Land Case No. 7 of 1989**, whose award in his favour was adopted as a decree of the court and was unsuccessfully appealed against by the plaintiff in **Eldoret HCCA No. 106 of 1993**, confirming him as the genuine owner of the **8 acres**, making the instant suit res judicata. The 1st defendant avers that he has been in open, continuous, and uninterrupted use, possession, and occupation of the **8 acres** for over 1**2 years** by way of adverse possession. 12. The 1st defendant avers that he is the rightful registered proprietor of L.R. No. **Trans Nzoia/Suwerwa/416** since **12/2/2007**, by virtue of being the legal administrator and in trust for the estate of Jackson Barasa (deceased). 13. The 1st defendant avers that there was also **Kitale DMC No. 96 of 1972**, concluded on **30/5/1972**, making this suit time-barred. 14. By way of a counterclaim, the 1st defendant avers that, being the lawfully registered owner of Land Title No. **Trans Nzoia/Suwerwa/416**, measuring **8 acres**, he should be declared as the true owner and protected by way of a permanent injunction restraining the plaintiff from laying claim to or interfering with his use, possession, and occupation in any manner. 15. The 5th and 6th defendants opposed the suit through a statement of defence dated **28/5/2021**. They denied that the plaintiff purchased the land known as **Trans Nzoia/Suwerwa/240** in **1972**, as alleged or at all. The 5th and 6th defendants averred that the register for Land Title No. **Trans Nzoia/Suwerwa/240** was opened on **13/3/1990** in the name of the defunct Settlement Fund Trustees; thereafter, on **31/1/1995**, it was transferred to the plaintiff. 16. The 5th and 6th defendants aver that on **3/4/1996**, a restriction was placed on Land Title No. **Trans Nzoia/Suwerwa/240**, until **Civil Case No. 7 of 1986** and **No. 106 of 1993** were finalised. The 5th and 6th defendants aver that the restriction was removed on **13/2/2007**, leading to the subdivision of Land Title No. **Trans Nzoia/Suwerwa/240** into Land Titles No. **Trans Nzoia/Suwerwa/2416** and **417**. Therefore, the 5th and 6th defendants deny the allegations that the plaintiff has been in occupation of the initial mother title land for over **40 years**. 17. The 5th and 6th defendants aver that the subdivision was done on **13/2/2007**, and any claim to recover the initial land title ought to have been brought before the lapse of **12 years** and thereafter with leave of court. 18. The 5th and 6th defendants aver that before the purchase and subdivision of the initial parcel or any of the resultant subdivisions, they had conducted due diligence to verify the ownership of the land; hence, they are bona fide purchasers for value without notice of any defects in the title. 19. The suit was opposed by the 2nd, 3rd, and 4th defendants through a statement of defence dated **15/1/2023**. It was averred that the plaintiff was issued with a title deed on **31/1/1995** and a charge registered for **Kshs.2,800/=** and was later discharged, and a subsequent charge in favour of Kenya Commercial Bank was registered against the title on **4/3/1996**. 20. The 2nd, 3rd, and 4th defendants aver that the title was closed on **13/2/2007** on subdivision to **Parcels No. 416** and **417**, thereafter the 1st defendant obtained a title deed on **13/2/2007** and was later re-issued on **3/4/2009**, following a Gazette Notice **No. 13291**. 21. The 2nd, 3rd, and 4th defendants aver that they made entries in contention on the title registers absolutely in good faith and under an honest and reasonable belief. Further, the 2nd, 3rd, and 4th defendants aver that the registration leading to the creation of **Trans Nzoia/Suwerwa/1729** and **1730** was done in good faith and upon certifying that the necessary documents were duly executed and availed, and upon compliance with all the necessary procedural requirements; hence, the 2nd defendant bears no fault. 22. The 2nd, 3rd, and 4th defendants also attack the suit as defective, untenable, and raising no cause of action against them. 23. At the hearing, Chemweno Kimutwol testified as PW1. He relied on witness statements dated **14/8/2019** and later amended on **13/2/2023** as his evidence-in-chief. 24. PW1 relied on documents in the list dated **14/5/2019**, namely a copy of the title for **Trans Nzoia/Suwerwa/240** issued on **31/1/1995**, as **P. Exhibit No. (1),** an application for LCB Consent **Ref. No.** **N2/3/4/C/19** as **P. Exhibit No (2),** certificate of consent dated **13/7/1972**, **P. Exhibit No. (3),** registration of transfer dated **31/7/1972** as **P. Exhibit No. (4),** forwarding letter dated **26/1/1971** as **P. Exhibit No. (5**), letter of consent dated **30/3/1990, P. Exhibit No. (6),** a copy of a green card for parcel **No. 240** as **P. Exhibit No. (7),** official search certificate dated **9/8/2019, P. Exhibit No. (8)**, and lastly an official search certificate dated **9/8/2019** as **P. Exhibit No. (9).** 25. PW1 told the court that he made an entry onto the land after buying the land from the 1st defendant in **1972** and vacated the land together with his workers. PW1 admitted that he had sued the 2nd defendant’s late father for not vacating the land, but unfortunately, he passed away before the suit was concluded. 26. PW1 said that he has sued the government for illegally and unprocedurally colluding in allowing the subdivision and transfer of his land to the other defendants in the alleged execution of a Land Dispute Tribunal (LDT) decree. 27. PW1 admitted that he bought the land while still in the name of the Settlement Fund Trustees. PW1 admitted that the land used to have pending disputes, going by the copy of the record. PW1 said that the LDT had no jurisdiction to deal with the land; otherwise, he was not involved in those suits at the time. 28. PW1 said that he was not privy to the entries made on the title register to subdivide his land. Asked about the gazettement to invalidate his title by the Land Registrar, PW1 said that he never challenged the same before any court of law, including the LDT decree. 29. PW1 said that there was a time he reported to the area chief to have the 1st defendant vacate his land. PW1 said that all the subdivisions and transfers of the entire **16** acres of land in favour of the 1st, 2nd, 5th, and 6th defendants were done without his knowledge or consent. 30. PW1 said that after the 1st defendant sold the land to him in **1972**, he refused to remove his tenants from the land. PW1 said that he was neither aware nor notified of the cancellation of his title through a gazette notice, nor of the intended subdivisions or transfers affecting his land title **No. 240**. 31. Further, PW1 said that he was also not summoned to attend the LDT proceedings. PW1 said that he is the one who cleared the loan with the Settlement Fund Trustees and not the 1st defendant. 32. **Peter Barasa** testified as **DW1**. He relied on a witness statement dated **29/11/2019** as his evidence-in-chief. DW1 also produced a copy of a title deed for **Trans Nzoia/Suwerwa/416** as **D. Exhibit No. (1)**, official search certificate dated **29/10/2018, D. Exhibit No. (2),** Judgment in **Kitale DMCC No. 96 of 1972, D. Exhibit No. (3**), proceedings in **LDT No. 7 for 1989, D. Exhibit No. (4)**, **Land Case No. 7 of 1989**, and a ruling as **D. Exhibit No. (5)** and **(6)**, judgment in **Kitale HCCA Appl. No. 106 of 1993, D. Exhibit No. (7)**, decree in **Eldoret High Court, D. Exhibit No. (8)**, and a letter dated **14/8/2006 as D. Exhibit No. (9)**. 33. DW1 briefly told the court that he is lawfully occupying the Parcel **No. 416** measuring **8 acres**, whose acquisition, as indicated in his defence and counterclaim, has been subject to numerous litigations as captured in his **Exhibits No. (1) - (9).** 34. DW1 said that in **Case No. 96 of 1972**, the plaintiff had sued his late father, while the LDT case was also against the plaintiff, who was unable to overturn the award all the way to the Eldoret Court. DW1 said that it is after all these processes that he lawfully obtained his title deed based on the decree, and so was the plaintiff’s title for **Parcel No. 417**. 35. DW1 said that his late father was the first one to purchase the land from Albert Mulati, as confirmed in the LDT award, which had the proceedings produced as **D. Exhibit No. (4) and (5),** which show that the plaintiff was entitled to **15 acres** only. 36. DW1 denied that, as at the time the subdivision occurred in **2007**, his decree dated **1990** had become stale. DW1 said that though the land was still in the name of the Settlement Fund Trustees up to **2007**, they had not been joined as a party in the LDT suit. 37. **Aggrey A. Linakha** testified as **DW2**. He relied on a witness statement dated **7/3/2022** as his evidence-in-chief. DW2 relied on a list of documents dated **1/3/2022**. The Exhibits produced were a copy of the title deed for **Trans Nzoia/Suwerwa/416, D. Exhibit No. (10)**, sale agreement dated **9/5/2011**, **D. Exhibit No. (12)**, certificate of official search dated **22/12/2014, D. Exhibit No. (13)**, sale agreement dated **29/12/2014, D. Exhibit No (14)**, title deed for **Trans Nzoia/Suwerwa/1730** as **D. Exhibit No. (15)**, land sale agreements dated **2/1/2015, 16/6/2015**, and **27/12/2015**, as **D. Exhibit No. (16), (17), and (18),** photographs, **D. Exhibit No. 19(a), (b), (c),** and **(d),** letter of consent dated **16/5/2019, D. Exhibit No. (20),** fee receipts issued on **8/5/2019** as **D. Exhibit No. (21),** an application for LCB consent, **LCB No. 3 of 2019, D. Exhibit No. (22)**, transfer form dated **28/8/019** as **D. Exhibit No. (23),** letter dated **26/6/2019 as D. Exhibit No. (24)**, letter dated **9/5/2019** as **D. Exhibit No. (25)**, Postal Money Order Serial **No. XX5649196 for Kshs.3,480/=** as **D. Exhibit No. (26)**, and a statutory declaration dated **21/12/2018** as **D. Exhibit No. (27).** 38. DW2 told the court that he bought the land as offered to him by the 1st defendant, procedurally and lawfully, after conducting due diligence and establishing that he was the registered owner. DW2 told the court that the gazettement was not objected to, hence the issuance of a fresh title deed. 39. DW2 said that he was not aware of the previous litigation over the land when he bought the land. DW2 said that the plaintiff was not in occupation of the land when he bought it; otherwise, he only knew his brother Silvester Mutwol, who occupies the adjacent land. 40. DW2 said that he bought the land in bits with effect from **2014** and followed due process in acquiring the title on **3/4/2019.** DW2 told the court that he found some tea on the land before he took vacant possession. DW2 said that since taking vacant possession, he had utilised the land uninterrupted by the plaintiff. 41. **Sifuna Okumu** testified as **DW3**. He relied on a witness statement dated **7/3/2022** as his evidence-in-chief. He relied on documents produced by DW2. DW3 told the court that he bought his land in **2015**, measuring one and a half acres, as per sale agreements dated **16/5/2015** and **2/1/2015**. 42. DW3 said that he had initially conducted an official search against the title register, which showed the registered owner as the 1st defendant. DW3 said that he has yet to apply for the transfer of the land to his name due to the pending suit. DW3 said that the photographs before the court confirm that he has affected developments on the land. 43. **Jared Sharon** testified as **DW4**. As the Deputy Land Registrar, Trans Nzoia County, DW4, relied on a list of documents dated **15/11/2023**, namely certified green cards for Title No. **Trans Nzoia/Suwerwa/240, 416,** and **417** in the name of the plaintiff, the 2nd defendant, and the plaintiff, which were marked as **D. Exhibit No. 29(a), (b),** and **(c).** 44. PW4 told the court that **D. Exhibit No. 29(a)** was subdivided on **13/4/2007**. According to DW4, on **3/4/1996**, a restriction had been registered against the title register of Parcel **No. 240** until **Civil Cases No. 7 of 1989** and **No. 106 of 1993** were finalised. 45. DW4 said that on **13/2/2007**, the said restriction was lifted through an order in **Land Case No. 7 of 1989**, and the title was closed on subdivision the same day, giving rise to parcel **Nos. 416** and **417** in the name of the plaintiff. Before a transfer was effected to Peter Baraza, Parcel **No. 417** remained in the name of the plaintiff. 46. DW4 said that from **2007** to **2019**, there was no order served upon the Land Registrar to effect any change to the title register. DW4 said that from the copy of records, the original parcel **No. 240** was acquired from the initial owner on **31/6/1995** by the plaintiff, measuring **6.8 Ha**. Similarly, DW4 said that parcel **No. 416** is **3.23 Ha** while parcel **No. 417** is **3.36 Ha.** 47. DW4 said that from the copy of the records before the court, the name of Albert Mulati is missing as a one-time owner of the land. DW4 said that as of **1989**, the initial parcel was held by the defunct Settlement Fund Trustees. DW4 could not tell who had registered the restriction as per Entry No. **(5)** in the copy of records produced as **D. Exhibit No. 29(a).** 48. Equally, DW4 said that she did not have before the court a copy of the decree or order as per **Entry No. (5) and (6).** DW4 said that the basis of subdivision as per **Entry No. (7)** in the copy of the record, is not indicated; otherwise, it must have been attached to the mutation form. 49. Equally, DW4 said that entries **No. (6), (7),** and **(8) of D. Exhibit No. 29(a)** bear no dates when the said orders or decree were issued. DW4 clarified that she was unable to tell from the entries if the plaintiff was a party to those cases, orders, or decrees. DW4 said that she was also unable to tell from the entries if the plaintiff was aware of the said entries or if he was notified or requested to surrender the original title deed for cancellation before the subdivisions and transfers could be effected, save for the Kenya Gazette before the court. 50. DW4 said that the copy of the record shows there was an executive officer of the court to sign the subdivision of the parcel **No. 240** to parcel **Nos. 416** and **417**. DW4 said that her records were silent on whether leave was sought and obtained to implement the decree after **12 years.** 51. After the close of the defence case, parties were directed to put in written submissions by **30/4/2026** and to appear for highlighting on **30/4/2026**. The plaintiff relies on written submissions dated **30/3/2026**, isolating six issues for the court’s determination. 52. The plaintiff submits that initially, the 1st defendant was the allottee of the land by the Settlement Fund Trustees, and when he defaulted on paying the loan, he sold the land to the plaintiff at **Kshs.7,500/=,** who paid a deposit of **Kshs.5,000/=** and directly paid the balance to the Settlement Fund Trustees to clear the loan, making the plaintiff the new allottee, after handing him vacant possession in **1972**. 53. The plaintiff submits that the 1st defendant’s father, Jackson Barasa, and his family, the initial licensee of the initial allottee, vacated the land, as shown by the LDT proceedings, as produced as **D. Exhibit No. (4).** The plaintiff submits that the LDT award giving the 2nd defendant 8 acres of land had no validity in law since the land belonged to the Settlement Fund Trustees, and by extension, the plaintiff, after he had cleared the loan on behalf of the initial allottee, and that the plaintiff was also not a party to the proceedings. 54. The plaintiff submits that the land was only registered formally in the name of the Settlement Fund Trustees on **13/3/1990** and was formally also discharged and transferred to the plaintiff on **31/1/1995**, any implementation of the LDT award by the 2nd and 3rd defendants on **13/2/2007** by subdividing the land into two parcels and the transfer of **L.R. No. 416** to the 2nd defendant, was without the consent or knowledge of the plaintiff and further was irregular or wrongful for the award was not only an illegality but also statute barred. 55. The plaintiff submits that the court has the jurisdiction to examine the legality and regularity of the award by the panel of elders. 56. As to whether the suit is *res judicata*, the plaintiff urges the court to find that the suit is not *res judicata*, going by the principles set out in ***John Florence Maritime Services Ltd -vs- Cabinet Secretary Transport & Infrastructure & Others [2021] KESC 39 [KLR]*** and in ***Dina Management Ltd -vs- County Government of Mombasa & Others [2023] KESC 30 [KLR]***, given that the identity of the parties, issues for determination are not the same, that the plaintiff was not party to ***Kitale SRMC Land Case No. 7 of 1989***, and that ***Eldoret HCCA No. 106 of 1993*** was not a decision on merits or final as regard the claim between the parties. 57. The plaintiff urges the court to approach this matter with an open mind, being alive to the changes in law and the attendant institutional changes with respect to the adjudication of the land disputes between **1989** and **2019**. Reliance is placed on ***Mary Kerubo Ogoti -vs- the Chief Magistrate’s Court, Kisii & Others [2019] eKLR***. 58. The plaintiff submits that the amended plaint seeks a declaratory reliefs which this court has powers under **Article 23** of the Constitution to grant, by breathing life into the spirit and the letter of the Constitution by granting an appropriate remedy in view of the circumstances of this specific case and not being clogged by procedural technicalities, due to the legal wrong exhibited herein, without taking the view that jurisdiction compartmentalized in the name of either a civil court, judicial review court or constitutional court. 59. The plaintiff submits that it would be a rigid and extremely conservative approach to our judicial services that may end up emasculating the liberality and progressiveness of the Constitution. Instead, the plaintiff urges the court to take the view that it is an agent of the constitution, the constitutional tenets should always ring louder in the court’s ears, heart, and mind by not imagining that constitutional questions can only be addressed by way of a formal constitutional petition, judicial review within the pre-**2010** mindset that judicial remedies could only issue in judicial review applications, otherwise, it should be possible for an administrative or quasi-judicial decision to be quashed either in civil suit or a constitutional petition, so long as it is proved it offends the Bill of Rights. 60. The plaintiff urges the court to find that it is properly seized of jurisdiction to render the determination on the merits on this issue. The plaintiff submits that jurisdiction as defined in **Words and Phrases Legally Defined Vol. 3(1) page 113** and in ***Macharia & Another -vs- Kenya Commercial Bank Ltd & Others SC Civil Appl. No. 2 of 2011*** did not clothe the panel of elders under the repealed Magistrates Jurisdiction Amendment Act 1981 and the Statute Law (Misc. Amendment) (No. 2) Act, 1984, with entertaining disputes from contracts of sale and title to land. Reliance is placed on ***M’Marete -vs- Republic & Others, Court of Appeal, Nyeri, Civil Appeal No. 259 of 2000 [2004] eKLR***. 61. In this case, the plaintiff submits that the tribunal had no power to order the subdivision of a titled land parcel **No. 240**, rendering the award a nullity. 62. The plaintiff submits that by doing so, the panel of elders offended the plaintiff’s fundamental rights under **Article 17** of the Universal Declaration of Human Rights **1948**, Article **2(5) and (5),** and Article **47** of the Constitution. Reliance is placed on ***Republic -vs- Chief Immigration Officer [1976] 3 AER 843, Attorney General -vs- Ryan [1980] AC 718***. The ***Management of the Committee of Makondo Primary School & Another -vs- Uganda National Examination Board, HC Civil Misc. Appl. No. 18 of 2010 and Sangram Singh -vs- Election Tribunal, Koteh, AIR 1955 SC 664***. 63. The plaintiff submits that the decree made on **18/1/1989** appears to have been implemented on **13/2/2007**, going by **D. Exhibit No. 29(a), (b),** and **(c)**, which was more than **12 years** after it was issued. 64. The plaintiff submits that implementing the same without leave of court when it was already time-barred offended the law, making it a nullity. Reliance is placed on ***Waituika -vs- Waituika: Waituika & Others (Third Party) ELC Appeal No. E006 of 2022 [2024] KEELC 1505 [KLR]*** and***M’Ikiara M’Rinkanya & Another -vs- Gilbert Kabeere M’Mbijiwe [2007] eKLR***. 65. The plaintiff submits that, notwithstanding that the decree was a nullity, still the 2nd and 3rd defendants chose to register **8 acres** in favour of the 2nd defendant and only gave the plaintiff **8 acres** contrary to the decree. 66. As to whether the 5th and 6th defendants’ titles to the suit land are protected by law, the plaintiff submits that there was no proof of payment of consideration, the 2nd defendant has no capacity to transact over the land, and the settler had no better title to dispose of, as there was a pending dispute over the same. 67. The 2nd defendant relies on written submissions dated **5/5/2026**. The 2nd defendant submits that the plaintiff seeks to re-open concluded litigations given that following the adoption of the LDT award on **Kitale SRM Land Case No. 7 of** **1989**, the plaintiff filed review, setting aside proceedings and an appeal, all of which were dismissed, leading to a title deed in his favour of **13/2/2007**, as the legal administrator and trustee of the estate of Jackson Barasa (deceased) which title remains valid and protected. Therefore, the 2nd defendant submits that the court has no jurisdiction to entertain a suit which is res judicata as held in ***Waithaka -vs- Attorney General & Others [2023] KEELC 707 [KLR].*** 68. The 2nd defendant submits that under **Section 34(1)** of the Civil Procedure Act, and **Section 4(4)** of the Limitation of Actions Act, all questions arising between the parties in the suit relating to execution, discharge or satisfaction of the decree ought to be determined by the executing court and not by a separate suit and so is the challenge of the decree before expiry of **12 years.** 69. The 2nd defendant submits that the plaintiff has failed to discharge the burden of proof to show that the decree was invalid and that there was an unlawful execution of the same. The 2nd defendant submits that his title remains lawful and indefeasible and that the plaintiff has not succeeded in impeaching the same. Reliance is placed on ***Migwambo (Suing as the legal administratrix of the estate of Peterlis Migwambo Amolo (Deceased) -vs- Ochiel & Others [2025] KEELC 8481 [KLR]*** and***Arthi Highway Developers Ltd -vs- West End Butchery Ltd & Others [2015] KECA 816 [KLR]***. 70. The 2nd defendant submits that the plaintiff has been unable to substantiate his claim to be entitled to the reliefs sought for cancellation of title, eviction, injunction, mesne profits and damages since a valid title exists, no proof of superior right to the land is available, *mesne* profits are like special damages requiring strict pleading and proof as held in ***Attorney General -vs- Halal Meat Products Ltd [2016] KECA 306 [KLR]***, and lastly no tortious or unlawful conduct has been established against him to constitute general damages. 71. The 2nd defendant submits that, in view of his documentary evidence and lack of impeachment of his title, the counterclaim should be allowed for him to continue to enjoy, use, possess, and occupy his land. 72. The court has not come across submissions filed by the 5th, 3rd - 6th defendants. Be it as it may, the law is that parties are bound by their pleadings, and issues for the court’s determination flow from the pleadings. Courts determine disputes within the framework of the pleadings and issues framed by the parties. 73. The issues calling for my determination are: 74. ***If the plaintiff’s suit discloses a known cause of action.*** 75. ***If the suit by the plaintiff is res judicata.*** 76. ***If the plaintiff has proved that the subdivision and transfer of two titles out of Title No. Trans Nzoia/Suwerwa/240 and its resultant subdivisions, transfers, and registration in favour of himself, the 1st, 5th, and 6th defendants by the 2nd and 3rd defendants were irregular and illegal.*** 77. ***If the plaintiff is entitled to the reliefs sought.*** 78. ***If the 1st defendant is entitled to the reliefs sought in his counterclaim.*** 79. ***What is the order as to costs?*** 80. A cause of action is an act on the part of the defendant that gives the plaintiff reason to complain, as was held in ***DT.C. Dobie & Co. (K) Ltd -vs- Muchina [1980] eKLR***. In this suit, the primary pleading by the plaintiff is the amended, amended plaint dated **13/2/2023**. The cause of the complaint is captured in paragraphs **4A, 5A, 6A, 7A, 8A, 9A, 10A, 12A, 13A,** and **13B**. 81. It is alleged that the plaintiff obtained a title deed for **Trans Nzoia/Suwerwa/240** in **1995**, and in **2019**, he discovered that it had been subdivided into two portions without his knowledge or consent, resulting in parcels No. **416** and **417.** He termed the said changes as irregular, unprocedural, and fraudulent. 82. Further, he avers that **Parcel No. 417** remained under his name while **Parcel Nos. 1720** and **1730**. The plaintiff gave specific particulars of the illegality and irregularity of the subdivision and transfers in paragraph **13B**, namely, that, as done without his knowledge or consent, there was no necessary LCB consent or spousal consent, and that due process was not followed. 83. By the time the amended, amended plaint was filed, the 1st defendant had already filed an amended preliminary objection and a statement of defence and counterclaim dated **17/9/2019**, raising the issues of *res* *judicata* and the circumstances leading to the issuance of the title deed for Land Ref. No. **Trans Nzoia/Suwerwa/416** as per **D. Exhibit No. (1),** judgment in **DMCC No. 93 of 1972, D. Exhibit No. (2),** LDT proceedings in **Land Case No. 7/19**, **D. Exhibit No. (4),** decree and ruling in **Kitale SRMC Land Case No 7 of 1989**, **D. Exhibit No. (5)** and **(6)**, decree of the High Court Eldoret in Civil Appeal **No. 106 of 1993, D. Exhibit No. (8)** and **(9).** 84. From the pleadings by the plaintiff, it is obvious that in the amended, amended plaint dated **13/2/2023,** the plaintiff dropped the initial 1st defendant from the suit. He also dropped paragraphs **(4), (5), (6), (7), (8), (9), (10), (11), (12),** and **(13)** of the initial amended plaint. Further, the plaintiff removed the initial **prayers No. (a), (b), (c), (d),** and **(g)** of the initial plaint dated **14/8/2019** and **15/11/2029**. 85. The law is that once a party is allowed to amend a pleading under **Order 8** of the Civil Procedure Rules, the new amendment takes precedence over the earlier amendments. Equally, if the opposite party, **Order 8 Rule (6)** of the Civil Procedure Rules comes into effect. 86. The plaintiff has made submissions touching on the history of the initial land Parcel No. **Trans Nzoia/Suwerwa/240** in relation to the 1st defendant, whom he omitted in the current amended, amended plaint, and the decree used by the current 1st defendant to obtain his title. 87. The plaintiff voluntarily amended all the paragraphs touching on that history or those facts in his current plaint. **Issues No. (i), (ii), (iii), (iv), and (v)** as framed on page 6 of the plaintiff’s written submissions were not pleaded in the amended, amended plaint dated **13/2/2023**. As a matter of fact, the plaintiff in the said amendment dropped prayer No. **(a),** which sought a declaration that the LDT had no jurisdiction to entertain a dispute relating to titled land. 88. In ***Raila Odinga & Another -vs- IEBC & Others [2017] eKLR,*** the court said that in the absence of pleadings, evidence, if any, produced by the parties, cannot be considered. The court said that a party should not be permitted to travel beyond its pleading. 89. The court was emphatic that pleadings ensure that each side is fully alive to the questions that are likely to be raised, and they have an opportunity of placing the relevant evidence before the court for consideration. The court said that issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. 90. In the written submissions dated **30/3/2026**, the plaintiff has from paragraphs **14-19, 20, 21, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44,** and **45** on the issue which the court is unable to find there in the plaintiff’s amended, amended plaint. Equally, the court has not seen the plaintiff’s primary pleadings against the preliminary objection and the amended defence and counterclaim by the 1st defendant, where the plaintiff specifically attached the title deed held by the 1st defendant as a child of a flawed, irregular, illegal, and a null award, and decree of the court which dwelt with titled land contrary to the LDT law at the time. 91. A counterclaim is a standalone suit. It succeeds or fails independently of the fate of the primary suit. **Order 7 Rule 17(3)** and **(4)** of the Civil Procedure Rules applies to a plaintiff who fails to file a defence to a counterclaim. The 1st defendant, as the 2nd defendant before the amended, amended plaint was filed, has raised a jurisdictional question through a preliminary objection dated **28/11/2019**. It is also raised in paragraphs **6, 7, 8, 9, 10, 11, 12, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,25, 26,** and **27** of the amended defence. 92. The issue is also raised in the 2nd, 3rd, and 4th defendants’ defence dated **15/11/2023** that the plaintiff’s suit raises no known case or action. Further, paragraphs **6, 13,** and **14** of the statement of defence by the 5th and 6th defendants raise the issue of time limitation and hence the jurisdiction of this court to entertain the plaintiff’s suit. 93. In view of the pending suits, and a valid decree of the court that gave rise to the titles No**. 416** and **417**, and its resultant subdivision from the initial Land Title No. **Trans Nzoia/Suwerwa/240**, which the plaintiff urges the court to find that it was irregularly and unprocedurally subdivided and registered in the resultant subdivision in favour of the 1st, 5th, and 6th defendants by the 2nd and 3rd defendants. 94. A court’s jurisdiction flows from either the Constitution or a Statute or both. A court has held in ***Macharia & Another -vs- KCB Ltd & Others, SCOK Civil Appl. No. 2 of 2011*** can only exercise a jurisdiction as conferred upon it by law. The 1st defendant has raised the plea of res judicata against the suit raised by the plaintiff. To qualify as a defence, the claimant must satisfy the elements of res judicata as set out ***in John Florence Maritime Services Ltd & Another -vs- Cabinet Secretary & Infrastructure & Others [2021] KESC 39 [KLR]*** and in ***Maina Kiai & Others -vs- IEBC [2017] eKLR***. 95. The burden was on the 1st, 5th, and 6th defendants to demonstrate that there was a former judgment which was final, it was on the merits, that the parties were identical, the subject and the cause of action in the current suit and in the former suit are similar, and that this court and the former suit have jurisdiction to hear and determine the matter. 96. The plaintiff has submitted that this suit does not offend the doctrine of res judicata since he was not a party to the **Kitale SRMC Land Case No. 7 of 1989**; hence, the suit cannot be used to obfuscate his pursuit of justice. Further, the plaintiff submits that in **Eldoret HCCA No. 106 of 1993**, there was no final determination on the merits of the dispute. More importantly, the plaintiff urges the court to be guided by ***Mary Kerubo Ogot -vs- Chief Magistrate’s Court Kisii & Others [2019] eKLR***, to make a finding that the LDT award was a nullity and that in this case the plaintiff is seeking to right the wrongs or illegalities committed against him in dealing with his land. 97. The plaintiff urges the court to be liberal and ignore the compartmentalization of its jurisdiction. On the other hand, the 1st defendant submits that the plaintiff, from the exhibits tendered, is improperly seeking to reopen concluded litigation, which he unsuccessfully applied for review, setting aside, and through an appeal under the defunct LTD Act. 98. The 1st defendant submits that whereas the plaintiff seems to be questioning the legality, implementation, and execution effect of a decree arising from earlier proceedings, the proper legal remedy, if any, lies within the original proceedings, rather than by instituting a fresh collateral suit as provided by **Section 34(1)** of the Civil Procedure Act. 99. The 1st defendant also submits that the plaintiff’s suit is also caught by **Section 4(4)** of the Limitation of Action Act, for it questions a decree after **12 years**. Reliance is placed on ***Waithaka -vs- Attorney General & Others [2023] KEELC 707 [KLR]*** and ***Onywoki Okondo -vs- Samuel Nyarungo [2019] KEELC 2336 [KLR].*** 100. The court has looked at the judgment in **Kitale District Magistrate’s Court No. 93 of 1972**. The suit was not determined on the merits as regards the eviction sought by the plaintiff in the matter. The trial court made a finding that until the Ministry of Lands and Settlement had clarified who the rightful allottee was, the plaintiff could not be granted an eviction order. 101. In the decree dated **30/1/1990**, in **SRMC Kitale Land Case No. 7 of 1989**, the 1st defendant was decreed **8 acres** to hold in trust. There is evidence that the plaintiff was to continue occupying the side where he had erected a house and other developments. 102. In the ruling dated **14/5/1992**, the plaintiff had sought a review of the order dated **30/1/1990**, which the court declined. It is out of this refusal that the plaintiff filed an appeal at Eldoret High Court, which was dismissed on **20/3/1995**, paving the way for the execution of the decree by the Executive Officer to subdivide the land into two portions. 103. The next issue is proof of illegality. The plaintiff, in paragraphs **6A, 7A, 8A, 9A, 10A,** and **12A** of the amended amended plaint, faults the said subdivision and transfer as both illegal, fraudulent, and irregular, which he only discovered in **2019**. 104. The plaintiff relies on **P. Exhibit No. (1),** showing that he became the title holder on **31/1/1995**. He relies on **P. Exhibit No. (2)** which is a transfer between him and the initial. It is missing details. **P. Exhibit No. (3)** and **(4)** are certificates of consent and a transfer dated **31/12/1972**, accompanied by a forwarding letter dated **31/7/1972**, produced as **P. Exhibit No. (5).** 105. **P. Exhibit No. (7)** is a copy of the record which shows that the title register for **Trans Nzoia/Suwerwa/240** was opened on **13/3/1990** in the name of the Settlement Fund Trustees. It means **P. Exhibit No. (2), (3), (4), and (5)** had not been perfected up to **13/3/1990** in favour of either the plaintiff or the initial 1st defendant. 106. There is also no evidence that before **13/3/1990**, Plot **No. 240** was titled land to disqualify it from falling under the defunct Land Disputes Tribunal Act before **13/3/1990**, when the register was opened. If that had been the position, nothing would have stopped the plaintiff, who was a party to **D. Exhibit No. (3), (5), (6), (8),** and **(9)** from raising the issue *in limine* that the court lacked jurisdiction to entertain a dispute on titled land. 107. **D. Exhibit No. (4)** which are the proceedings of the panel of elders were undertaken on **2/8/1989**. Page **(6)** shows that the plaintiff was a party to the proceedings. Page **(7)** shows the observation of the panel that Plot **No. 240** Suwerwa Settlement Scheme had not been registered and that there was an outstanding loan to the Settlement Fund Trustees. 108. The award was later adopted as a decree of the court as per **D. Exhibit No. (15)** on **18/1/1990.** This was before the register for the plot was opened on **13/3/1990**. Efforts by the plaintiff to seek review of the order and appeal were unsuccessful, as shown by **D. Exhibit No. (6), (8),** and **(9).** 109. The court has taken the liberty of keenly looking at the initial plaint, the amended plaint, and the current plaint vis-à-vis the witness statement dated **14/8/2019** by the plaintiff. In paragraph **13** of the initial plaint, the issue of the jurisdiction of the Land Disputes Tribunal was raised. It is also raised on page **1** of the witness statement. The amended, amended plaint has, however, sought to change the ground of particulars of illegality and irregularity from the initial ones in paragraph 13 of the initial plaint to the current paragraphs **8A, 9A, 10A, 11A, 12A,** and **13A** and **B.** 110. From the evidence tendered by way of previous court proceedings, decisions, and orders, the plaintiff is being economical with the truth. This court has been able to trace the fingerprints and the footprints of the plaintiff right from the Land Disputes Tribunal proceedings, where he gave evidence, to the Eldoret High Court, where he lost on appeal. There is no evidence that the plaintiff escalated his objection to the Court of Appeal. There is also no evidence that the plaintiff challenged the decree following dismissal of his appeal on account of legality or jurisdiction under **Section 34** of the Civil Procedure Act. 111. The plaintiff, as of the dismissal of his appeal, knew of the existence of the lower court decree. There is no evidence that he sought and obtained a stay of execution of the decree, even after obtaining a title deed of the land during the subsistence of live court proceedings, which are subject to the doctrine of *Lis pendens*. 112. The plaintiff knew that there was a default clause that, in his absence from the execution, the transfer or subdivision forms could be executed by the Executive Officer of the court. He who alleges must prove. Illegality and irregularity must be proved on a balance higher than in ordinary suits, as held in ***Arthi Highway Developers Ltd -vs- West End Butchery*** *(supra).* 113. The plaintiff wants the court to turn a blind eye to a valid decree of its own court, where the plaintiff lost, and find it irregular and a nullity. There is evidence that after the award was made, a decree of the court, the plaintiff sought a review and also an appeal against the order dismissing his application for review. He now wants to turn around and deny being privy to or aware of the fact that he was a judgment debtor in the matter. 114. Having perused the previous proceedings, court decrees, or orders, there is no evidence that the issues raised in the amended, amended plaint were determined previously. The cause of action is pleaded as having occurred in **2019**. Therefore, the plea of res judicata fails. Legality of title must be traced to the root, as held in ***Sehmi & another -vs- Tarabana Company Ltd & 5 others [2026] KESC 15 (KLR).*** 115. In ***Clark -vs- Njoroge & 3 Others Civil Appeal No. 340 of 2019 [2026] KECA 718 [KLR] (10th April 2026) (Judgment)***, the court cited ***Elijah Makeri Nyang’wara -vs- Stephen Mungai Njuguna & Another [2013] eKLR***, that a title may be impeached even in the hands of an innocent party if it is shown that it was obtained illegally, unprocedurally, or through a corrupt scheme. 116. **Section 80** of the Land Registration Act provides that where a title is shown to have been obtained unprocedurally or illegally, the court may order the Land Registrar to rectify the register. 117. In this suit, the Land Registrar has confirmed the version of evidence as tendered by DW1 that there were valid court orders, decrees, and transfer documents in favour of both subdivision and transfer, which were presented to effect the subdivision of title No. **Trans Nzoia/Suwerwa/240** into Parcel **Nos. 416** and **417.** 118. Evidence to show that those subdivision and transfer documents were invalid, nullities, and unprocedural has not been provided by the plaintiff. It is not enough to make an allegation of collusion, illegality, and irregularities in the manner in which the subdivision and transfer occurred. There is no evidence that the plaintiff, after losing his appeal, notified the 2nd and 3rd defendants that he was aggrieved by the decree of the court or raised an objection on execution under **Section 34** of the Civil Procedure Act that the Executive Officer of the court and the Land Registrar should not execute, accept, register, and process both the subdivision and the transfer. 119. **D. Exhibit No. 29(a)** shows that there was an Entry No. **(5),** which was removed through Entry No. **(6)** and the title closed for subdivision by Entry No. **(7).** The plaintiff has deliberately not challenged the legality of Entry No. **(8),** which was a Kenya Gazette notifying him of the changes. 120. **D. Exhibit No. 29(b)** shows that the register for title **No. 416** was opened on **12/2/2007**, in the name of the 1st defendant, the same day title **No. 417** was opened in favour of the plaintiff. There is no evidence from the copy of the record that there was a caution or restriction on the title register for parcel **No. 240**, before **13/2/2007**, stopping any entries to the register. 121. The plaintiff is blaming the 1st, 2nd, and 3rd defendants for subdividing his land parcel without his knowledge or consent, yet the decree dated **30/1/1990** had ordered the Executive Officer, in case of failure by the plaintiff, to subdivide and transfer the land into two, and to sign on his behalf. The court finds no fault on the part of the 2nd and 3rd defendants in acting on the documents that were presented to them bearing the strength of a court decree. 122. Further, the court finds that after the plaintiff's appeal was dismissed and a decree dated **8/12/1998** on the strength of **D. Exhibit No. (8) and (9)**, nothing was stopping the issuance of the title in favour of the 1st defendant on **13/2/2007**. The decree of the High Court produced as **D. Exhibit No. (8)** is dated **8/12/1995**. Its expiry was to be in **2007**. Therefore, the subdivision and transfer in favour of the 1st defendant occurred within the **12 years** as provided under **Section 4(4)** of the Limitation of Action Act. 123. As to whether the plaintiff has succeeded in impeaching the resultant titles held by the 5th and 6th defendants, the court has already made a finding that there was no notification by way of a caution or restriction lodged by the plaintiff over the title register after obtaining his title on **31/1/1995**, for the mother title **No. 240**. 124. Equally, there is no evidence that the plaintiff, after the 1st defendant obtained title for **No. 416** on **13/2/2007**, challenged the same or registered a caution or restriction between **2007** and **2019,** when the said title was closed for subdivision. 125. **D. Exhibit No. 15** shows that the land title for **Trans Nzoia/Suwerwa/1730** was issued on **29/8/2019**, following a sale agreement produced as **D. Exhibit Nos. (12), (14).** The purchaser says that he had conducted due diligence as per **D. Exhibit No. (10)** and **(13),** showing that the seller had been a registered owner with effect from **13/2/2007**, so he had the capacity to dispose of the land. The defendant has also testified and tendered evidence that the plaintiff has never been in occupation of the suit land. 126. This suit was filed on **16/8/2019.** There is no evidence that the 1st defendant entered an appearance on **12/9/2019**, while the Hon. Attorney General filed an appearance on **5/9/2019**. As regards the 6th defendant, **D. Exhibit No. (16), (17),** and **(18)** show that the transaction started and was finalised in **2015**. The 5th and 6th defendants in paragraph **14** of the statement of defence dated **28/5/2021** plead that they had undertaken due diligence to verify the ownership of the land, hence they are bona fide purchasers for value without notice of any defects to the title. 127. The court, in ***Sehmi & another -vs- Tarabana Company Ltd & 5 others, Petition No. E033 of 2024*** held that the burden of proof that one is an innocent purchaser for value without notice lies on the person claiming it. The court emphasised that a *bona* *fide* purchaser must perform reasonable due diligence, which includes inspecting the land and physically searching the land registry. Failure to investigate suspicious circumstances negates a claim of good faith. 128. In this suit, the plaintiff has not shown any evidence that the 5th and 6th defendants engaged in conduct that was unconscionable in the eyes of equity or failed to inquire, or that the property had been established as unlawfully acquired by the father as of **2015**. 129. The 5th and 6th defendants' conduct, as per the exhibits produced, has not shown that there existed a rival interest in the suit land which they were aware of or overlooked. The 5th and 6th defendants have produced evidence that they purchased their portions for value and were not aware of any equitable interest or encumbrance against the said title. 130. The plaintiff has not pleaded anything in the amended, amended plaint faulting the *bona* *fides* of the 5th and 6th defendants. A reply to the 5th and 6th defendants’ statement of defence was also not filed by the plaintiff. Evidence that the 1st defendant had no better title between **2007** and **2019** is missing. The court finds that the 5th and 6th defendants fit the bill of innocent purchasers for value without notice of any defect in the title, including those not recorded on the title register. 131. Coming to the 1st defendant’s defence and the counterclaim, the 1st defendant has produced a valid and legally acquired title to his land, which he says his late father and the estate have been occupying since **1972**. DW1 has produced exhibits showing that the plaintiff’s efforts to evict his late father from the land in **1972** were unsuccessful. Later on, the 1st defendant succeeded in **D. Exhibit No (4)** against the initial 1st defendant. 132. The plaintiff was a witness in **D. Exhibit No. (4).** Efforts by the plaintiff to apply for review and appeal of the Land Disputes Tribunal Award, decree, and order were unsuccessful. The 1st defendant eventually obtained a title to the suit land, which the plaintiff has not been able to impeach since its issuance in **2007**. 133. A permanent injunction, otherwise known as a perpetual injunction, is issued after the final determination of the parties' rights to permanently restrain the commission of an act by the defendant to protect the rights of the plaintiff. See ***Peter Kinuthia Mwaniki & 2 Others -vs- Peter Njuguna Gicheha & Others [2006] eKLR.*** 134. The 1st defendant has established that he is the registered owner of the title No. **Trans Nzoia/Suwerwa/416**, whose registration was obtained following a valid decree of the lower court and which was confirmed by the High Court on appeal. The 1st defendant cannot be termed a trespasser on the land. See ***Lepove Ole Maito -vs- Letwat Kortom & Others [2016] eKLR***. 135. The court finds that the 1st defendant deserves a permanent injunction, since he has established, on a balance of probabilities, the merits of his counterclaim. 136. The upshot is that I find the plaintiff’s amended, amended plaint dated **13/2/2023** lacks merit. It is dismissed with costs to the defendants. The 1st defendant’s amended defence and counterclaim dated **28/11/2019** is allowed in terms of **prayers (a)** and **(b),** and judgment entered as follows; 137. **A declaration be and is hereby issued that the 1st defendant is the legal and rightful owner of land parcel number Trans-Nzoia/Suwerwa/416, which measures 3.23 Ha, having been hived off from parcel number Trans-Nzoia/Suwerwa/240.** 138. **An order of permanent injunction is hereby issued restraining the plaintiff, by himself, through his agents, servants, personal representatives, or anyone acting on his behalf, from claiming, interfering, alienating, or dealing in any manner, with land parcel Trans-Nzoia/Suwerwa/416.** 139. Costs to both the main suit and the counterclaim to the 1st defendant. 140. Orders accordingly. **Judgment dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **8th** day of **July 2026.** **In the presence of :** Court Assistant - Dennis Mr. Kenei for the plaintiff present 1st defendant absent No appearance for the 2nd, 3rd, 4th, 5th, and 6th defendants  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**