https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3064

County Government of Wajir v Maalim (Environment and Land Case E001 of 2023) [2026] KEELC 3064 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELC 3064 (KLR) Republic of Kenya In the Environment and Land Court at Garissa Environment and Land Case E001 of 2023 SM Kibunja, J May 21, 2026 Between County Government Of Wajir Plaintiff and Bulle Ahmed Maalim Defendant Judgment 1.The plaintiff, County Government of Wajir, commenced the present suit against the defendant, Bulle Ahmed Maalim, through a plaint dated 10th March 2023, seeking for the following reliefs:1.An order revoking the certificate of title dated 11th December 2017 issued in the defendant’s name in respect of LR No. 13607/249;2.A declaration that the transfer of LR No. 13607/249 to the defendant was unlawful, irregular, and invalid;3.An order directing the Lands Registry to cancel the entry of the defendant’s name in the register relating to LR No. 13607/249 and to issue a certificate of title in favour of the plaintiff;4.A permanent injunction restraining the defendant, his agents, servants or employees from taking possession of, subdividing, transferring, subletting, charging or otherwise interfering with the suit property;5.A permanent injunction restraining the defendant, his agents, servants or employees from entering upon, leasing, selling, charging, subdividing and/or erecting any structures on the suit property and from interfering with the plaintiff, its agents, servants, employees, constituents, and licensees in their enjoyment and use of LR No. 13607/249 situated within Wajir Township; and6.Costs of the suit, together with any other relief the court may deem fit and just to grant. 2.The plaintiff’s case as pleaded, was that Soko Mjinga Market situated within Wajir Township has at all material times been under the administration, control, and management of the plaintiff, and that before the advent of devolved government, under its predecessor, the defunct County Council of Wajir. According to the plaintiff, the market stands on several parcels of land, one of which is LR No. 13607/249, the suit property herein. 3.The plaintiff averred that the suit property has been continuously occupied by traders operating under licences issued by the plaintiff and previously, by the County Council of Wajir, for over 30 years without interruption by the defendant or any other person. It was pleaded that despite this longstanding public occupation and administration, the defendant purported to claim ownership of the suit property in 2017. 4.The plaintiff further pleaded that on or about 11th December 2017, the defendant irregularly and fraudulently procured registration of the suit property in his favour, and was issued with a certificate of title conferring upon him a leasehold interest for a term of ninety-nine years commencing on 1st May 1994. The plaintiff contended that the said title was acquired unlawfully, illegally, irregularly, and fraudulently. 5.Particulars of fraud were pleaded against the defendant, with the plaintiff maintaining that the certificate of title to the suit property was irregularly obtained, and that the defendant had encroached upon the suit property, claiming title thereto and fraudulently representing himself as the owner of the suit property. 6.The plaintiff further pleaded that on 10th August 2018, a stakeholders’ meeting was convened by the National Land Commission and it was attended by among others, representatives of the plaintiff, Members of Parliament and the defendant to deliberate on disputes relating to Soko Mjinga Market, including the suit property. According to the plaintiff, a consensus was reached during that meeting, whereby the defendant agreed to relinquish and abandon any claim to the suit property and to cede it to the plaintiff without compensation or consideration. 7.It was further pleaded that the parties agreed that the suit property would vest in the plaintiff, and that all titles relating thereto would be surrendered and expunged from the records held at the Nairobi Lands Registry. In light of the said agreement and the defendant's alleged representations, the plaintiff averred that the defendant was estopped from asserting ownership of the suit property or from acting inconsistently with the said consensus. 8.The plaintiff, therefore, maintained that the defendant’s continued assertion of proprietary rights over LR No. 13607/249 amounted to a breach of the doctrine of estoppel and was contrary to the agreement reached before the National Land Commission and other stakeholders. 9.The defendant entered an appearance and filed a statement of defence dated 20th April 2023 opposing the plaintiff’s claim in its entirety. He denied all the averments contained in the plaint and maintained that he was the lawful and registered proprietor of LR No. 13607/249, having been duly allocated the suit property by the Government before being issued with a certificate of title in his favour. 10.The defendant denied that the plaintiff had ever owned the suit property, or that it constituted public land or a gazetted marketplace as alleged. It was his position that the plaintiff had no proprietary interest capable of defeating his registered title. The allegations of fraud levelled against him were specifically denied. He therefore put the plaintiff to strict proof of all allegations of fraud pleaded in the plaint. 11.With regard to the stakeholders’ meeting allegedly held on 10th August 2018 under the auspices of the National Land Commission, the defendant maintained that the minutes and deliberations arising therefrom were not intended to create legally binding obligations or relations between the parties. He further averred that the alleged resolutions were never implemented or acted upon by the plaintiff and could not therefore form the basis of an estoppel against him. 12.On the contrary, the defendant asserted that it was the plaintiff who was estopped from disputing his ownership of the suit property, having consistently recognized him as proprietor by receiving and accepting land rent and other payments made by him in respect of the property over the years. The defendant consequently prayed for dismissal of the suit with costs and for judgment to be entered in his favour. 13.The matter proceeded for hearing on 25th June 2025, with the plaintiff calling Edward Ngare Mucheru, who testified as PW1, one witness, and the defendant testified on his own behalf. 14.The plaintiff called Edward Ngare Mucheru, Assistant Director of Physical Planning in Wajir County, who testified as PW1. He adopted his witness statement together with the plaintiff’s bundle of documents as his evidence in chief.It was his testimony that the suit property formed part of a public market commonly known as Soko Mjinga Market in Wajir Township. He stated that the area had been reserved for public market purposes under a Part Development Plan (PDP) prepared in the year 1982. According to him, the defendant could not, therefore, have lawfully acquired title to the suit property in the absence of a formal change of user from public utility use to private use. He urged the court to annul and cancel the defendant’s title. 15.During cross-examination, PW1 conceded that although he had referred to the 1982 PDP in his testimony and witness statement, the same had not been produced before the court as an exhibit. He further confirmed that the defendant held a certificate of title over LR No. 13607/249, the suit property herein, and acknowledged that the title stood in the defendant’s name.PW1 also confirmed that the defendant had been issued with a letter of allotment dated 13th April 1994. He admitted that the title issued to the defendant had never previously been challenged, and that the said letter of allotment had neither been cancelled nor revoked by the relevant authorities. 16.He further testified that although the plaintiff had alleged fraud and irregularity in the acquisition of the title, the offices and authorities involved in the allocation and issuance process had not been joined to the proceedings. He also acknowledged the existence of correspondence from the District Surveyor, Wajir, dated 4th November 2009, which verified the validity of the plot as reflected in a subsequent letter dated 5th November 2009.He equally confirmed that the then County Council of Wajir had validated the plot, and that a letter dated 9th February 1989 identified and confirmed the location of the suit property. He further stated that a PDP in respect of the plot had been prepared and approved. 17.PW1 nevertheless maintained that the suit property was public land, though he conceded that he had not produced documentary evidence to establish that fact. He further admitted that he did not know whether the suit property had ever been formally gazetted as a public market.With regard to the stakeholders’ meeting allegedly convened under the auspices of the National Land Commission, PW1 confirmed that he was present during the meeting and that a consensus had been reached regarding the suit property. He however conceded that a meeting, by itself, could not confer title to land. 18.Upon re-examination, PW1 reiterated that there existed a PDP prepared in 1982. He further pointed out that there appeared to be a discrepancy in the acreage reflected in the various documents relating to the suit property. According to him, whereas the area indicated in some documents measured approximately 0.1325 hectares, the area reflected in the letter of allotment measured 0.072 hectares, suggesting inconsistency in the documentation relating to the property. He also confirmed that the defendant had been present during the stakeholders’ meeting. 19.The defendant, Bulle Ahmed Maalim, testified as DW1, and adopted his witness statement and bundle of documents as his evidence in chief. During cross-examination, DW1 stated that he had initially been allocated the suit property by the County Council of Wajir in February 1989. He confirmed that the allocation letter had been produced before the court, though he acknowledged that the document did not bear particulars identifying the County Council. 20.He further testified that he could not recall the exact mode through which he paid the allotment charges, though he maintained that payment had indeed been made. He, however, conceded that he had not produced receipts evidencing such payment. DW1 also admitted that he had never developed the suit property and attributed the same to the fact that he had been out of the country in the Kingdom of Saudi Arabia for a considerable period of time. He nevertheless maintained that he had consistently paid rates and rents in respect of the property. 21.According to the defendant, the plot was situated between Shagane’s premises and the post office within Wajir Township. He further confirmed that the letter dated 9th February 1989 described the plot dimensions as 120 feet by 40 feet. He also acknowledged that whereas the letter of allotment reflected the area of the plot as 0.072 hectares, the certificate of title reflected an area of 0.132 hectares. When questioned on the discrepancy, he stated that he did not know the reason for the variance. 22.DW1 further admitted that the letter of allotment did not have an attached PDP.On re-examination, the defendant maintained that no complaint had ever been raised regarding compliance with the special conditions contained in the allotment documents. He further stated that the suit property had been invaded by squatters during the period he was outside the country, and that such occupation had prevented him from developing the land. 23.He also referred to the letter dated 5th November 2009 from the County Council confirming that he had been paying land rents in respect of the property. Further, he stated that the Magistrate’s Court at Wajir had previously declared the land belonged to him, though the County Council allegedly failed to assist him in removing trespassers from the land.Finally, DW1 denied attending any meeting in Nairobi or Wajir relating to the surrender or relinquishment of the suit property. 24.The issues arising in this suit for the determination by the court are as follows:a.Whether LR No. 13607/249 constituted public land reserved for Soko Mjinga Market.b.Whether the defendant’s title to LR No. 13607/249 was unlawfully, irregularly or fraudulently acquired so as to warrant cancellation.c.Whether the resolutions arising from the stakeholders’ meeting held on 10th August 2018 created a binding estoppel against the defendant.d.Whether the plaintiff is entitled to the reliefs sought. 25.The court has after considering carefully the pleadings, oral and documentary evidence tendered, submissions by the learned counsel come to the following findings:a.Whether LR No. 13607/249 constituted public land reserved for Soko Mjinga Market:The plaintiff’s case was principally anchored on the contention that the suit property formed part of Soko Mjinga Market within Wajir Township and constituted public land reserved for public utility purposes. According to the plaintiff, the defendant could not, therefore, lawfully acquire private title over the land.b.The burden of proving that assertion lay squarely upon the plaintiff. Sections 107 and 109 of the Evidence Act, Chapter 80 of Laws of Kenya places the burden of proof upon the party asserting a fact. In the present case, it was incumbent upon the plaintiff to demonstrate, through cogent documentary and oral evidence, that LR No. 13607/249 had indeed been reserved, set aside or gazetted for public use as a market and was therefore incapable of lawful alienation to a private individual.c.PW1 testified that the suit property had been reserved as a market under a 1982 Part Development Plan. However, during cross-examination, he candidly admitted that the alleged 1982 PDP had not been produced before court.He further admitted that he did not know whether the suit property had ever been gazetted as a market. No gazette notice, approved development plan, survey map, registry index map or other documentary evidence was produced to demonstrate that the suit property had formally been reserved for public utility purposes.d.While the plaintiff produced business permits issued to traders operating stalls within the area, such evidence merely demonstrated that the County Government had been regulating commercial activity being undertaken on the ground. It did not, without more, establish ownership of the suit property or prove that the land constituted public land within the meaning of Article 62 of the Constitution.e.Indeed, the evidence on record revealed that the defendant held a certificate of title over LR No. 13607/249 for a term of ninety-nine years from 1st May 1994. The plaintiff’s own witness acknowledged the existence of the defendant’s title and further confirmed that the defendant had been issued with a letter of allotment dated 13th April 1994. PW1 additionally admitted that neither the allotment letter nor the title had ever been cancelled or revoked.f.The documentary evidence produced by the defendant further showed that the allocation and survey history of the suit property had repeatedly been verified by public authorities.The County Council of Wajir, through correspondence dated 5th November 2009, confirmed that the plot had been allocated to the defendant in 1989 and that he had continuously been paying rents thereon. Correspondence from the Ministry of Lands and Survey of Kenya similarly confirmed the existence of PDP Ref No. 332/95/2 and indicated that the current PDP properly situated LR No. 13607/249 on the ground.g.The court also notes that although there existed historical disputes regarding overlap between LR No. 13607/249 and LR No. 13607/246, the correspondence from the Survey of Kenya ultimately recommended cancellation and re-survey of LR No. 13607/246 on grounds that it had been surveyed using an outdated PDP, while affirming that LR No. 13607/249 was properly reflected in the updated development plan.h.The plaintiff did not produce contrary technical evidence displacing those findings. The court is therefore unable, on the evidence presented, to conclude that LR No. 13607/249 constituted public land, reserved exclusively for Soko Mjinga Market. While the evidence demonstrates that the area has for a considerable period, been utilized as a market, and occupied by traders licensed by the County Government, mere public use or administrative control does not, without formal reservation or acquisition, convert privately registered land into public land. Accordingly, the plaintiff failed to discharge the burden of proving that the suit property constituted public land reserved for market purposes.i.Whether the defendant’s title to LR No. 13607/249 was unlawfully, irregularly or fraudulently acquired so as to warrant cancellation:The plaintiff sought cancellation of the defendant’s title on the grounds that the same had been unlawfully, irregularly and fraudulently obtained.The particulars of fraud pleaded against the defendant were: irregularly obtaining a certificate of title over the suit property; encroaching onto LR No. 13607/246 and claiming title thereto with the effect of causing overlap between parcels; and fraudulently holding himself out as the owner of the suit property.j.The law regarding impeachment of title is well settled. Under Sections 24 and 25 of the Land Registration Act No. 3 of 2012, registration confers upon a registered proprietor absolute ownership together with all rights and privileges appurtenant thereto.Section 26(1) of the Act further provides that a certificate of title shall be taken by courts as prima facie evidence that the person named therein is the absolute and indefeasible owner, unless it is shown that the title was acquired through fraud or misrepresentation to which the proprietor was a party, or through an illegal, unprocedural or corrupt scheme.k.It is equally settled that allegations of fraud must not only be specifically pleaded but must also be strictly proved to a standard higher than a balance of probabilities, though not beyond a reasonable doubt.Upon evaluating the evidence tendered, the court finds that the plaintiff has not established fraud, illegality or procedural impropriety attributable to the defendant in the allocation and acquisition of the title to the suit property.The court has further noted the following:i.Firstly, the plaintiff did not produce evidence showing that the defendant procured the title through forgery, falsification of records, collusion or deceit. To the contrary, the evidence disclosed an allocation history traceable to the County Council of Wajir dating back to 1989, followed by the issuance of a letter of allotment and, eventually, a title.ii.Secondly, PW1 expressly admitted that the authorities involved in the allocation and registration process had not been joined to the proceedings, despite the plaintiff alleging an irregular issuance of the title. No evidence was tendered by the Commissioner of Lands, the Land Registrar, the Director of Surveys, or the Physical Planning authorities disowning the allocation, the survey process, or the issuance of title.iii.Thirdly, the documentary record produced before the court largely validated rather than impeached the defendant’s claim. The letters from the County Council of Wajir and the Ministry of Lands confirmed the allocation history and acknowledged the defendant as the allottee and rate payer. The technical correspondence from the Survey of Kenya further indicated that LR No. 13607/249 was properly situated under the updated PDP.l.The court has nevertheless considered the inconsistencies highlighted regarding the suit property’s acreage. Whereas the allotment letter reflected an area measuring 0.072 hectares, the title reflected 0.1325 hectares. Both PW1 and DW1 acknowledged this discrepancy. However, no technical evidence was led by any of the parties to demonstrate that the variance resulted from fraud attributable to the defendant, or that the title thereby became unlawful. No surveyor or registrar testified to explain the discrepancy or to connect it to any fraudulent conduct by the defendant.m.Similarly, while evidence emerged regarding overlap disputes involving LR No. 13607/246, the material before the court indicated that the overlap issue arose from historical survey anomalies, and the use of outdated development plans. The final recommendation from the Survey of Kenya was not the cancellation of LR No. 13607/249, but rather the cancellation and re-survey of LR No. 13607/246.n.The court further takes note that the defendant had previously instituted proceedings before the court declared him the registered owner of LR No. 13607/249, and issued injunctive relief in his favour.While that judgment does not by itself bar the present proceedings, it nonetheless reinforces the fact that the defendant’s title has consistently been recognized by public records and judicial pronouncement and had not previously been impeached. There is also no evidence tendered that the judgement delivered on 29th December 2022 in favour of the defendant herein in Principal Magistrate’s Court at Wajir in ELC No. E003 of 2022 has been set aside or successfully appealed against.o.The plaintiff’s evidence, viewed holistically, falls short of the legal threshold required for cancellation of defendant’s title to the suit property under Section 26 of the Land Registration Act. The court therefore finds that the plaintiff has failed to prove that the defendant’s title was unlawfully, irregularly or fraudulently acquired.p.Whether the resolutions arising from the stakeholders’ meeting held on 10th August 2018 created a binding estoppel against the defendant:The plaintiff further relied on the stakeholders’ meeting allegedly convened by the National Land Commission on 10th August 2018, claiming that the defendant had agreed during that meeting to relinquish his claim over the suit property and was therefore estopped from subsequently asserting ownership.q.The minutes produced before the court indeed show that persons described as claimants resolved to forfeit their claims over portions of the market land without compensation and agreed that the land be vested in the County Government of Wajir for use as a market. The attendance list produced also contains the name “Bulle Ahmed” from Wajir. However, several difficulties arise with respect to the legal effect of those proceedings.i.Firstly, the defendant denied attending the meeting or agreeing to surrender his title.ii.Secondly, while the attendance list bears the name “Bulle Ahmed,” the substantive resolutions were not signed by the defendant. The document is indicated to have been signed only by the Commissioner of the National Land Commission and the County Executive Committee Member from Wajir County.iii.Thirdly, and more fundamentally, the resolutions did not crystallize into any legally recognizable process for surrender, transfer or revocation of title. No instrument of surrender, transfer, discharge or revocation was produced before the court. There was equally no evidence that the defendant surrendered the original title documents or executed any conveyancing instruments in favour of the plaintiff.r.PW1 himself conceded during cross-examination that a meeting could not confer title, and the court agrees with that position. Rights over registered land cannot be defeated merely through stakeholder deliberations or administrative consensus, without compliance with the substantive and procedural requirements governing the disposition, surrender, or compulsory acquisition of land.s.If the County Government of Wajir indeed required the suit property for public use as a market, the law provides clear constitutional and statutory mechanisms for acquiring private land for public purposes, subject to due process being followed and compensation paid. The court cannot sanction deprivation of registered title of a private individual solely on the basis of stakeholder resolutions unsupported by formal legal processes. Accordingly, the court is not persuaded that the minutes of 10th August 2018 created a binding estoppel capable of extinguishing the defendant’s proprietary rights over LR No. 13607/249.t.Whether the plaintiff is entitled to the relief sought:Having found that the plaintiff has failed to prove that the suit property constituted public land, and it has further failed to establish fraud, illegality or procedural impropriety sufficient to impeach the defendant’s title, it follows that the substantive reliefs sought in the plaint cannot issue. The prayers for cancellation and revocation of title, rectification of the register and permanent injunctions against the defendant are therefore not merited.u.The court nevertheless observes that the evidence placed before it demonstrates that the suit property is presently occupied and utilized by traders operating under licences issued by the County Government of Wajir. That factual occupation may raise broader questions concerning planning, public utility management, and the possible acquisition of land for public use. However, those considerations cannot override the legal protections accorded to registered proprietorship in the absence of proof meeting the threshold established under the Land Registration Act and the Constitution. In the result, the court finds that the plaintiff has failed to prove its case on a balance of probabilities.v.Under Section 27 of Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where there are good reasons to order differently. That as the plaintiff has failed in its quest over the suit property’s title, and the defendant has emerged victorious in defending his title, the plaintiff will pay his costs. 26.The foregoing determinations clearly shows that the plaintiff has failed to establish its claim against the defendant over the suit property to the level desired of balance of probabilities. Accordingly, the court therefore finds and orders as follows:a.That the plaintiff’s suit against the defendant over the suit property is dismissed.b.The plaintiff will pay the defendant’s costs.Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 21ST DAY OF MAY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Plaintiff – Mr. Saka for OmwanzaDefendant – No AppearanceMohamed - Court Assistant