https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4327

Ethics and Anti-corruption Commission v Kiptoo & 3 others (Environment and Land Case E009 of 2025) [2026] KEELC 4327 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4327 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case E009 of 2025 CK Nzili, J June 30, 2026 Between Ethics and Anti-corruption Commission Plaintiff and Ken Kiptoo 1st Defendant Josephine Kerubo alias J Kerubo 2nd Defendant Edwin Kipchirchir Tum (Being Sued as the Administrator of the Estate of Nathaniel Kipkorir Tum) 3rd Defendant Wilson Gacanja 4th Defendant Judgment 1.The plaintiff approached the court through a plaint dated 4/3/2025. It seeks:a.Declaration that the alienation of Land Title No. Kitale Municipality Block 12/152, hereinafter the suit property, to the 1st and 2nd defendants, and the subsequent transfer to the 3rd defendant, was irregular, fraudulent, illegal, and consequently null and void and incapable of conferring any right, interest, or estate.b.Declaration that the 4th defendant had no power to alienate the suit property to the 1st and 2nd defendants and that his conduct in doing so was illegal, ultra vires, fraudulent, an abuse of power, and in breach of his statutory and fiduciary duty.c.An order of rectification of the register directing the Registrar of Lands, Kitale, to cancel the lease and certificate of lease and all entries on the land register for Kitale Municipality Block 12/153.d.An order of registration directing the Land Registrar Kitale to register the suit property in favour of the Cabinet Secretary of the Treasury and National Planning in terms of Section 56C of the Anti-Corruption and Economic Crimes Act.e.An order of mandatory injunction directing the 3rd defendant, his servants, agents, or assignees to vacate Kitale Municipality Block 12/153 forthwith and to deliver vacant possession thereof to the County Government of Trans Nzoia.f.An order of permanent injunction restraining the defendants, their servants, agents, or assignees, from alienating, selling, charging, leasing, transferring, wasting, disposing, developing, or in any other manner dealing with Kitale Municipality Block 12/153.g.Mesne profits against the 3rd defendant from 17/7/1995 to the date of surrender of vacant possession.h.General damages against the 4th defendant for breach of statutory and fiduciary duty.i.General damages for trespass.j.General damage for loss of use.k.Costs of and incidental to the suit.l.Interest on (h), (i), (j), and (k) above at court rates. 2.The plaintiff brings this suit pursuant to its constitutional and statutory duties as set out in Sections 3, 11, and 13 of the Ethics and Anti-Corruption Commission Act 2011 to recover or protect public property, freeze or confiscate proceeds of corruption. 3.The plaintiff contends that at all material times the suit property was alienated public land reserved for public purpose, to wit, an open space, an amenity reserved for public use within Trans Nzoia County, and was not available for alienation. 4.The plaintiff avers that the reservation as an open space came about following the preparation, drawing, or revision of the Development Plan for Kitale Municipality on or about 1973. It avers that initially, the land forming part of the large Kitale School property measured approximately 55 Ha, as per official records then held by the Department of Urban and Rural Physical Planning. 5.The plaintiff avers that for proper planning and utilisation, an area measuring 2.44 Ha was excised from the 55 Ha Kitale School land and was reserved and designated as an open space vide the Approved Development Plan, Ref. No. 10/72/7, though the Kitale School continued to utilize the entire open space for agricultural purposes. 6.The plaintiffs aver that on or about 9/2/1994, the 1st and 2nd defendants, acting in concert with the late Nathaniel Kipkorir Tum, hereinafter the deceased, fraudulently and illegally solicited for alienation and allocation of a portion of the open space to themselves. 7.The plaintiff avers that the said acts led to the issuance of a letter of allotment on 7/3/1994, for the suit property in favour of the 1st and 2nd defendants, in contempt of the existing alienation and reservation and the common procedure in allocating land. The allotment letter was issued without a ground status report from the District Land Office or an approved Part Development Plan from the Director of Physical Planning, contrary to laws applicable to Physical Planning and the repealed Government Land Act. 8.The plaintiff avers that by way of a survey vide Survey Plan F/R No. 27/111, the land alienated and reserved as an open space was subdivided creating the suit property under the instruction of the 4th defendant, which also on or about 17/7/1995, in a purported exercise of his statutory powers caused to be issued a lease to the 1st and 2nd defendants, followed by its registration and issuance of certificate of lease as tenants in common to the 1st and 2nd defendants, who thereafter transferred the suit property to the deceased, by a registration registered on 17/7/1995. 9.The plaintiff avers that the alienation and reservation of the suit property as an open space was never vacated. 10.It is averred that the said the suit property for all intents and purposes remain public land, which was not available for alienation to any person or entity in any manner whatsoever, rendering the issuance of the title document to the 1st and 2nd defendants and the subsequent transfer to the deceased fraudulent, illegal, null, and void, and incapable of conferring any title, right, interest or estate. 11.The plaintiff avers that the quick succession in which the suit property was transferred from the 1st and 2nd defendants to the deceased clearly demonstrates that the 1st and 2nd defendants and the deceased had conspired with the help of the 4th defendants to acquire the suit property, for and on behalf of the deceased, to guise the transaction as genuine to avoid public scrutiny, since the deceased had already illegally acquired a portion of Kitale School land which neighbours the suit property. 12.Further, the plaintiff contends that the particulars of fraud against the 1st and 2nd defendants, and the deceased, in alienating the suit property with express knowledge that it was public land as reserved vide DP Ref. No. 10/72/7; alienating the same for private use to the detriment of the intended and the subsisting public interest; soliciting for allocation, making payment, and procuring its registration. 13.The plaintiff avers that the said acts by the defendants were undertaken while knowing the subject land's public status; representing the suit property as unalienated public land, causing the transfer despite its public status, colluding and contriving to defeat public interest. 14.The plaintiff further pleads the particulars of illegality against the 1st and 2nd defendants and the deceased as alienating public land for private use, to the detriment of its intended use and the subsisting public interest; representing the suit property as unalienated public land; trespassing on public land and using public land for private purposes. 15.Similarly, the plaintiff pleads particulars of fraud, breach of statutory and fiduciary duty, and abuse of office by the 4th defendant as; alienating public land reserved as an open space contrary to the approved development plan for Kitale Municipality; purporting to alienate the same for private use by the 1st and 2nd defendants in total disregard of publicly available land records with express knowledge that it was already alienated in favour of public interest; illegally allocating the same despite the said knowledge; causing a letter of allotment to be issued to the 1st and 2nd defendants; executing the lease in their favour; acting in concert to convert the suit property for the exclusive ownership, possession and use by the 1st and 2nd defendants. 16.The 4th defendant is blamed as the then custodian of all government land of deliberately acting in excess of statutory powers and authority in purporting to arbitrarily alienate the land in connivance with the 1st and 2nd defendants without any legal authority; colluding to defeat public interest and failing to regard public interest in the suit property; engaging in systematic perversion of established procedures intended to protect public interest by diverting a portion of public land for the unjust enrichment of the 1st and 2nd defendants; disregarding physical planning laws and registration in the alienation; purporting to re-plan the suit property from the existing public user to a private user; causing the survey and subdivision to create the suit property; willful failing to comply and or ignore the Government Land Act, the Government Financial Regulations and Procedures in disposing public property and lastly, unlawfully disposing public property. 17.The plaintiff avers that due to the impugned conduct of the defendants, the suit property has been alienated for private use, benefiting the 3rd defendant, who has put the same into commercial farming and businesses, rendering it unavailable for the intended public recreational purposes; hence, the reliefs sought to restore it to its initial public purpose. 18.The 1st and 2nd defendants, despite substituted service with the summons to enter an appearance, did not file any defence to the suit. 19.The 3rd defendant opposed the suit through a statement of defence dated 9/4/2025. The 3rd defendant avers that a lease in respect of the suit property was initially registered in the name of the 1st and 2nd defendants on 17/7/1995, who before this had made an application to the Commissioner of Lands, seeking to be allocated the suit property which at the time was not classified as “open space” and Kitale Academy whom the plaintiff alleges was unlawfully deprived of the property had itself a separate title from the suit property. The 3rd defendant avers that if the suit property was indeed owned by Kitale School as alleged, then it defies logic why the very school was again seeking to be allocated the suit property. 20.The 3rd defendant avers that the suit property was not classified as public land intended for public utility, and therefore the Commissioner of Lands had the legal authority to allot it to the 1st and 2nd defendants. The 3rd defendant avers that, in any event, the delineation of the alleged “open space” and its extent remain a mystery. 21.The 3rd defendant avers that on or about January 1995, the deceased purchased the suit property from the 1st and 2nd defendants and fulfilled his obligation under the said agreement, resulting in a transfer executed in his favour. 22.The 3rd defendant avers that the deceased, before the transfer, had conducted due diligence which confirmed that the suit property was uninhabited and was free from any encumbrances and that the 1st and 2nd defendants had good title on account of documents they had and from the records held at the Lands office, and therefore could pass good title and ownership over the suit property to him. 23.The 3rd defendant avers that a certificate of lease was subsequently issued in favour of the deceased, who took immediate possession of the suit property and had been in possession of the said parcel of land until his demise, where after the beneficiaries to his estate have been in possession of the suit property to date and have been paying land rates, with no one claiming rival ownership thereof. 24.The 3rd defendant avers that the claim that the suit property was reserved “open space” as alleged in paragraphs 5, 6, 7, 8, and 13 of the plaint is denied, given that:a.At the time of allocation of the suit property, the land was not classified as public land intended for public use, otherwise, its status as per the custodian of land records which is the Ministry of Lands and Settlement at the time of allocation was noted as vacant government land and therefore the Commissioner of Lands had the legal authority to allocate it to the 1st and 2nd defendants having received the necessary approvals from all the relevant authorities.b.The 1st and 2nd defendants had made an application for allocation of the suit property, which was accepted, and a letter of allotment was issued upon obtaining the necessary approvals from the relevant authorities.(c)Kitale School or any other entity’s interest had never been registered over the suit property, and nothing has been tabled to support the plaintiff’s assertions.(d)The suit property was paid for, and the Registry Index Map was amended by the Director of Surveys.(e)Stamp duty and all relevant dues were paid, and a lease was issued to the 1st and 2nd defendants. 25.The 3rd defendant denies the contents of paragraphs 14 and 15 of the plaint as merely sensational and cannot be used as a basis for cancelling a validly acquired title given that as at 1/3/1994, the 1st and 2nd defendants already had a lease in their favour, and the deceased was only registered as owner of the suit property on 17/7/1995, well over 2 years after a lease had been registered in favour of the 1st and 2nd defendants, making the alleged collusion in fraudulently acquiring and transferring the suit property untenable. 26.The 3rd defendant avers that the deceased was an innocent purchaser for value without notice of any defect in title and therefore acquired a good and indefeasible title in law. 27.The 3rd defendant avers that the plaintiff has no reasonable cause of action against the 3rd defendant, as the alleged fraud was committed against the deceased, which is a claim in person am and cannot be sustained against him. 28.Further, the 3rd defendant avers that the institution of the suit orchestrated with malice, selfish and is an attempt to wrestle back the suit property in the guise that it is a public land to bypass the correct channel of compulsorily acquiring private land as set out in law, which move the court should not allow especially coming over 30 years since the land was acquired by the deceased, and conveniently after his demise, knowing very well that the 3rd defendant as an administrator of the his estate as well as the other beneficiaries of the estate may not have the full historical background as regard the suit property. The 3rd defendant terms the suit time-barred and the court as lacking jurisdiction to entertain it. 29.The 4th defendant opposed the suit through a statement of defence dated October 2025. It was averred that the 4th defendant was a stranger to paragraphs 5, 6, 7, 8, 10, 11, 12, 13, 14, and 15 of the plaint, the contents of which he denies in toto, putting the plaintiff to strict proof. 30.The 4th defendant avers that his office’s instructions informed the alienation of the suit property and that at all material times he discharged the function of the office of the Commissioner of Lands in strict adherence to the laid down laws and procedures and that if at all he was involved in the allocation of the subject suit property, which is denied, then he acted on the strength of the powers donated to him by statute and within the procedural confines of the law. 31.The 4th defendant denies the alleged fraud, illegality, breach of statutory and fiduciary duties, or abuse of office. The 4th defendant states that any action taken by him as the Commissioner of Lands was done in the exercise of and on the strength of the powers donated to him by the repealed Government Land Act Cap 280, or the President of the Republic of Kenya Gazette Notice No. 14 of 1965, or the relevant county council. 32.The 4th defendant avers that, having acted within the confines of the law and in an official capacity, he was therefore sheltered by the repealed Government Land Act from any liability or proceedings arising out of any acts done as the Commissioner of Lands in exercise of his mandate. 33.Further, the 4th defendant avers that the process of allotment of land was a lengthy process that involved several other stakeholders within the Ministry of Lands and Settlement. 34.The 4th defendant avers that the process of allocation also involved other government departments, such as the provincial administration. The 4th defendant avers that the procedures for allotment of government land included direct approvals by the President, direct applications to the Commissioner of Land, field officers, and provincial administration, and lastly, applications to the local offices of adjudication and land. 35.The 4th defendant avers that the aforesaid application would be forwarded to the scheduled offices to check the status of the land in question and its availability for allocation, and it was only after such establishment of its availability that the Commissioner of Lands could be advised by the relevant scheduled officer and the concerned stakeholders to simply approve the commencement of the allocation process. 36.The 4th defendant avers that, beyond the process enumerated in the foregoing paragraphs, the Commissioner of Lands was not involved in any of the other processes which are mandatorily required before allotment and had no control over the offices responsible thereof, such as the Department of Physical Planning, Valuation, Surveying, bordering, issuance of the letter of allotment, and the preparation of leases and grants. 37.The 4th defendant avers that when the Part Development Plans (PDP), leases, or grants, have been prepared by the relevant offices, they could be forwarded to the Commissioner of Lands through all the schedule officers for instance the Senior Land Officer, the District Commissioner, Assistant Commissioner of lands and the deputy Commissioner of Lands, and that the Commissioner of Lands mandate largely extending the appending his signature on the PDP, leases and grants based on the recommendations from other stakeholders. He would then forward the said documents to the Chief Land Registrar, who could then authorise the processing and the registration of the forwarded leases and grants. 38.The 4th defendant avers that if he indeed participated in any transaction on the suit property, which is denied, he did so based on the powers donated to him by statute or on instructions given to him by the President; otherwise, his mandate heavily relied on other stakeholders, on whose recommendations he relied to discharge his functions. The 4th defendant avers that, as such, individually singling him out amounts to malice and is a calculated witch-hunt move. 39.Further, the 4th defendant denies receiving any demand notice or intention to be sued. The court record does not indicate if the plaintiff filed any reply to the defence to the statement of defence filed by the 3rd and 4th defendants. 40.At the hearing, the plaintiff called six witnesses. Elias Muthomi Kahura was PW1. He relied on and adopted the witness statement dated 9/7/2025 as his evidence-in-chief. PW1 told the court that he was a Deputy Director, Lands Administration at the Ministry of Lands, Public Works, Housing, and Urban Development. 41.PW1 told the court that his duties and responsibilities include preparation of leases and titles, extension of leases, change of user, subdivisions, liaison with investigative agencies of the government, attending court to testify, and any other duties assigned to him. PW1 told the court that his office received a letter from the plaintiff dated 21/12/2020, regarding an investigation into the alienation of the suit property. 42.PW1 told the court that the government can issue or make grants over unalienated government land in two instances, namely, on its own motion or through an application by an individual. PW1 said that in the first instance, the government would:a.Advertise the land to the general public.b.Shortlist the applicants and inform them of the balloting.c.Upon balloting, the successful person is issued allotment letters with particulars of the land size, terms of the lease, the user, and the necessary payments to be paid. The letter of allotment must be accompanied by a Part Development Plan or an extract of a Development Plan.d.On receipt of an allotment letter, the allottee is required to accept the offer in writing and remit the necessary payments within 30 days of the issuance of the letter.e.The allottee thereafter will engage the services of a licensed surveyor to carry out survey works on the allotted plot.f.On completion of the survey works, the licensed surveyor submits his works to the Director of Surveys for approval and issuance of necessary survey instruments, namely a Deed Plan or a Registry Index Map (RIM).g.On receipt of a Deed Plan or RIM, the process of lease preparation commences, which includes typing of the lease, verifying the correctness of the lease, execution of the lease, stamping of the lease, and ultimately forwarding the lease to the relevant land registry for purposes of registration. 43.PW1 said that the second process involves:a.An applicant making a formal application to the Commissioner of Lands, which must be accompanied by a plan or a sketch map showing the location of the plot sought for allocation.b.On receipt of the application, the Commissioner of Lands would confirm the status to ensure that the plot applied for is available for allocation.c.If the plot is available for allocation, the Commissioner of Land requests the Director of Physical Planning to prepare the Part Development Plan.d.The Director of Physical Planning causes the preparation of the Plan and submits the same to the Commissioner of Lands for approval.e.Once the Commissioner of Lands has approved the PDP, it is returned to the Department of Physical Planning for allocation of a Departmental Reference Number and placement in the Register.f.For the Department of Lands Administration, the valuation of the parcel is carried out to determine the stand premium and annual rent.g.After the PDP has been registered and issued with a Department Reference Number and Development Plan Number, it is forwarded to the Department of Land Administration through the Commissioner of Lands.h.On the strength of an approved PDP, the Department of Land Administration issues the applicant with a letter of allotment, which contains the information on the location, user, and acreage from the PDP, meaning that it has to cite the PDP Number, terms of the allocation, and the necessary payments to be made.i.On receipt of the allotment letter, the allottee is required to accept the offer in writing and, at the same time, remit the necessary payments within 30 days of issuance of the letter of allotment.j.The allottee is required thereafter to engage the services of a licensed surveyor to carry out survey works on the allotted plot, whose compilation he submits to the Director of Surveys for approval and issuance of the necessary survey instruments, namely, the Deed Plan or the RIM.(k)Upon receipt of the survey instruments from the Director of Survey, what follows is the lease preparation and its forwarding to the relevant land registry for purposes of registration. 44.PW1 told the court that the Land Administration office must examine the PDP to ensure it is approved because it is the basis upon which a letter of allotment is issued. PW1 said that an approved PDP is certified by the Director of Physical Planning, approved by the Commissioner of Lands, signed, dated, and assigned a Departmental Reference Number and an approved Development Plan Number. PW1 said that when a PDP does not contain all these basic features, the officer must reject the application and refer the PDP back to the Director of Physical Planning. 45.Regarding the subject land, PW1 said that according to the correspondence file number 157281, the land was allocated to the 1st and 2nd defendants through a letter Ref. 20089/XXV11 dated 7/3/1995, following their application dated 14/1/1994. PW1 said that upon receipt of the application, the Department of Land on 9/2/1994 wrote to the Minister and the Permanent Secretary, Ministry of Land and Settlement, and the Commissioner of Lands, seeking authority to issue a letter of allotment to the applicants. 46.PW1 said that at the time, the Commissioner of Lands was the 4th defendant, who on 14/2/1994 recommended the issuance of the letter of allotment, which was also approved by the Permanent Secretary and the Minister of Land and Settlement on 16/2/1994 and 24/2/1994, respectively. 47.PW1 said that the letter of allotment did not provide the PDP, meaning that the Director of Physical Planning had not prepared a PDP for the suit property, contrary to the law, and then the allocation should have been rejected. 48.PW1 said that the allottees were also supposed to pay Kshs.187,500/= comprised of stand premium and annual rent, among other charges, and required acceptance within 30 days of issuance. PW1 said that the allottee accepted the offer on 6/4/1994 vide a letter dated 19/4/1994, and they requested consent to transfer the allocation due to financial constraints, though they also later paid the requisite charges as prescribed in the letter of allotment. 49.PW1 said that through a letter, Ref. CT/73/Vol. 64/175, dated 14/2/1995, the Director of Surveys forwarded the RIM, which had been amended to reflect the suit property measuring approximately 1.357 Ha as per survey plan number F/R No. 272/111. PW1 said that a form for instruments to prepare a lease was filled, finalised, and approved by the Commissioner of Lands for issuance of the lease, and that on 8/6/1995, the lease for the suit property was forwarded to the Land Registrar, Kitale, for registration, following payment of stamp duty vide receipt number 13542 dated 5/6/1995. 50.PW1 stated to the court that Kitale Municipality Block 12/153 is part of a large area reserved for an open space. 51.PW1 said that the allocation of the land or part of it to a private individual was irregular, since once reserved and alienated as such, it was no longer available for allocation either as a whole or in part to any person. 52.PW1 relied on the documents contained in the plaintiff’s list of documents dated 15/12/2025, namely, a letter dated 9/2/1994 as P. Exhibit No. (3), government approval form, P. Exhibit No. (4), letter of allotment dated 7/3/1994 as P. Exhibit No. (5), letter dated 6/4/1994 as P. Exhibit No. (6), letter dated 19/4/1994 as P. Exhibit No. (7), receipt No. DO66367 issued on 21/2/1995 as P. Exhibit No. (8), letter dated 10/2/1995 as P. Exhibit No. (9) letter dated 14/2/1995 as P. Exhibit No. (10), standard form on new leases to prepare as a new lease as P. Exhibit No. (11), certificate of stamp duty No. 13542 as P. Exhibit No. (12), and letter dated 8/6/1995 as P. Exhibit No. (13). 53.PW1 said that all these exhibits are contained in the correspondence file. Further, on the front page of the correspondence file, PW1 relied on the file number 157281 for the suit property as P. Exhibit No. (14), and a copy of the lease registered on 17/7/1995 as P. Exhibit No. (15). 54.PW1 said that the suit property had initially been planned as an open space, according to the Development Plan No. 9 dated 17/1/1974. 55.PW1 said that the basis of his assertion was a sketch in the correspondence file, which was part of the letter of allotment. He said that the sketch was an extract of the Development Plan, which shows the neighbourhood of the plot as Kitale Primary School, the golf club, and an access road. 56.In addition, PW1 said that the allocation to the 1st and 2nd defendants for residential use was not in conformity with the reservation as per the Development Plan. PW1 said that the correspondence file did not contain the 1st and 2nd defendants' applications for allotment. 57.PW1 said that there was also no advertisement for the plot allocation. PW1 said that the attached sketch to the application by the 1st and 2nd defendants was not an analogy to a PDP, which must precede the letter of allotment. PW1 said that a PDP cannot amend a Development Plan. PW1 said that it was through P. Exhibit No (4) that the application was authorised by the 4th defendant, yet he could not allocate already reserved land. 58.PW1 said that the subsequent officers then relied on the strength of that recommendation to process the lease. PW1 said that since the offer was still valid, it was normal for the 1st and 2nd defendant by P. Exhibit No. (7) to request the transfer of the land. PW1 said that he did not come across a transfer form between the 1st and 2nd defendants and the deceased. 59.PW1 said that P. Exhibit No. (11) described the suit land as No. 153, following survey works. PW1 said that the lease was executed by the 4th defendant and the 1st and 2nd defendants on 12/4/1995 and 8/6/1995, following its preparation and approval on 10/4/1995 as per P. Exhibit No. (15). PW1 said all these documents are contained in the correspondence file and were certified and shared with the plaintiff upon request through letters dated 20/12/2020 and 20/12/2023. PW1 said that he did not receive, request, or certify the documents contained in the 3rd defendant’s trial bundle dated 11/6/2025. 60.In cross-examination, PW1 said that his office was the one that prepared the allotment letter, and that it was incumbent upon it to ascertain the status of the suit land before allocation. PW1 admitted that communication was not made at the inception by his office to the 1st and 2nd defendants that the land was already reserved for open space. 61.PW1 said that the 1st and 2nd defendants appear to have been acting on a mistaken belief that the land was available for allocation when they made the application. PW1 said that the form filled out by the 1st and 2nd defendants was later processed internally by his departmental officers, who recommended the allocation and later signed the lease dated 12/4/1995 in favour of the 1st and 2nd defendants. 62.PW1 said that the Land Administration Officer is the custodian of the Development Plan and was available at the time of allocation. PW1 said that the allocation referred to the land as vacant. PW1 said that no one objected to or protested the allocation from his department based on the reservation in the Development Plan. 63.PW1 said that the 4th defendant, at the time of allocation, was the head of the Land Administration department, yet he did not object to the alienation. PW1 said that his department has yet to recall, cancel, revoke, or lodge a claim against the allotment letter and the certificate of lease on account of the reservation. 64.PW1 admitted that what is before the court, attached as MFI P(2), has a missing portion. PW1 nevertheless said that the copy is a replica of the Development Plan, showing that the suit property falls under Zone (3) reserved for recreational purposes. PW1 said that he was not the maker of the Development Plan. PW1 said that the information regarding the Development Plan appearing in the correspondence file was made on 9/7/2024 as per P. Exhibit No. (14) by the Senior Planning Record Officer (SPRO). The individual's name is missing from the exhibit. 65.PW1 admitted that before 2024, his office had no details that the suit property fell within the open space. PW1 admitted that several other government officers, apart from the 4th defendant, were involved in the allocation process. PW1 said that though the 4th defendant would rely on information from at least three other departments as per P. Exhibit Nos. (3), (4), and (5), which did not mean he had no personal responsibility to bear in the allocation. 66.PW1 admitted that G.K. Sang and one Mr. Amiani, who were involved in the process alongside the 4th defendant, have not been sued, intervened, or involved in the court case by the plaintiff. PW1 said that the 4th defendant had only the authority to allocate unalienated government land, and in this case, the Development Plan was clear that the suit property was reserved as an open space. 67.PW1 said that the Development Plan was a public document. PW1 said that he is the one from the correspondence file who requested the SPRO. PW1 said that the 4th defendant should have made a specific request for the availability of the land for allocation before making the recommendation in P. Exhibit No. (4). PW1 could not tell the user of the suit property before the reservation. 68.Wilson Kibichii testified as PW2. He adopted a witness statement dated 9/7/2024 as his evidence-in-chief. 69.PW1 told the court that he is a Senior County Valuer and head of the Survey Records Office, Ministry of Lands, Department of Survey, since April 2012, reporting to the Senior Assistant Director Cadastral. 70.PW2 said that his duties include maintenance of the cadastral survey records office, supervision of staff, investigation of records, answering queries by investigators, and provision of copies of records when required by members of the public or investigation agencies 71.Concerning this matter, PW2 told the court that his office received the plaintiff’s letters dated 28/10/2020 and 20/12/2023, concerning alienation of the suit property. PW1 said that surveying begins when a land surveyor receives a letter of allotment and a copy of a PDP, after he conducts computation and submits a computation file with copies of allocation documents and a drawn survey plan. 72.PW2 told the court that the said documents are then forwarded to the Director of Survey with a covering letter, who, upon receipt of the same, marks them for a Senior Assistant Director of Survey for authorisation. PW2 told the court that upon authorisation, the documents are taken to a computation number or parcel number is allocated, and a Folio Register Number (FRN) for the parcel of land in question is allocated. 73.PW2 told the court that a parcel number is a number that is used to prepare a title or a lease, while (FRN) is a number allocated for purposes of facilitating efficient filing as well as retrieval of files or documents. PW2 said it is at that level where a computation file is prepared with the above statement numbers. 74.PW2 said that after allocation of the relevant numbers, the file is forwarded to preliminary checking office where quality control is done and if everything is confirmed to be in order, the file is forwarded to the final checking office where the work of the preliminary checking office is assessed again to confirm if all the above mentioned processes were followed, whereafter the file is forwarded to the authentication office, where it is approved, and charges for the survey work determined and raised. 75.PW2 said that the surveyor who had initiated the process gets notified of the approval of the survey work through a letter, which is also copied to the Commissioner of Lands. PW2 stated that the Commissioner of Lands or the Director of Land Administration then requests, in writing, that a RIM be amended to reflect a new or final survey. 76.Further, PW2 said that a RIM is a general map of a Block. PW2 said that once the above request for the same is received, it is taken to the Senior Assistant Director of Surveys for authority to amend the RIM, which process requires records like computation and survey plan to amend the RIM. 77.PW2 told the court that upon receiving all the relevant records, the Senior Assistant Director of Survey would write to the officer in charge of the RIM office to make the amendments. PW2 said that a RIM amendment means to reflect the parcel of land in question in the RIM. 78.PW2 said that the process involves the production of two copies of the RIM by the officer in charge of RIM, which are sealed and forwarded to the Commissioner of Lands or Director of Land Administration, with a covering letter. 79.PW2 told the court that the Director of Land Administration retains one copy, while the other copy of the RIM is forwarded to the relevant lands registry, after which the Director of Land Administration takes over the remaining process. PW2 said that a RIM is always one at any given time, and is updated when a new parcel of land is created by being amended. 80.Regarding the suit property, PW2 told the court that the parcel was surveyed on 26/1/1995 by Joash S. Simiyu. PW2 told the court that the Survey of Kenya on 8/2/1995 received the survey documents, which were processed and allocated F/R No. 272/111 and computation No. 33063, based on a letter of allotment Ref. No. 20089/XXV11 dated 7/3/1994, and a sketch map. 81.PW2 said that the area surveyed was established to measure 1.357 Ha and was allocated parcel number 153 within Kitale Municipality Block X11. PW2 told the court that the Survey of Kenya, vide a letter dated 10/2/1995, informed the Commissioner of Lands upon conclusion of the survey works and approvals, whereof the RIM was amended to reflect the new parcel as Entry No. (10), in the RIM amendment box. 82.PW2 stated that if a Development Plan has provided a specific area or parcel within the municipality that is reserved for a public purpose, for example, an open space, then the property shall not be allocated, nor shall any survey work be undertaken over the said parcel or area. For that matter, PW2 said that such an allocation or survey work would be irregular. 83.PW2 produced the Survey Plan F/R No. 272/111 as P. Exhibit N.(20), RIM as P. Exhibit No. (21), and PMFI No. (9) as P. Exhibit No. (9). He also relied on P. Exhibit No. (10). PW2 admitted that the survey plan was prepared by his office, as well as the amended RIM, since no objections were received to the same before the preparation from the Physical Planning Department on account of an open space. 84.PW2 insisted that the survey works were done in compliance with the law, and as of the date of testifying, no order had been received by his office recalling the survey works. PW1 said that his office was not the custodian of the Development Plan. PW2 said that the FRN did not refer to the original survey map. 85.Veronica Musee testified as PW3. She relied on a witness statement dated 9/9/2024, which she adopted as her evidence-in-chief. PW3 told the court that she is a Deputy Director of Physical Planning and currently the Physical Planning Officer in charge of the North Rift Region, covering, inter alia, Trans Nzoia County. 86.PW3 said that her duties include the preparation of the National Physical and Land Use Development Plan, to alienate land for public use, coordination of planning by county governments in her area, offering technical support, and capacity building to county governments on physical planning matters, ensuring quality and standards control, approvals of building constructions and undertaking any other duties assigned to her by her immediate supervisor. 87.PW3 said that her department received letters dated 21/12/2020, 31/12/2020, and 8/7/2024 from the plaintiff, and through a letter dated 15/7/2024, the requested documents were supplied, and she was nominated to provide clarification on any physical planning technical issues. 88.According to PW3, a Development Plan is a plan for an entire town or city, which is a framework designating various land uses such as residential, commercial, industrial, educational, transportation, public utilities and services, public purposes, recreational areas and reserves, usually provided in terms of zones. 89.PW3 told the court that an authentic Development Plan must be certified by the Director of Physical Planning with a signature and an official stamp, after being approved by the Commissioner of Lands with a signature and a date. PW3 told the court that the key features of a Development Plan include an Approved Development Plan Number, a Departmental Reference Number, and the name of the planner who prepared it. 90.PW3 told the court that a Development Plan is drawn in compliance with the procedure set out in the Land Planning Act, Cap 303, now repealed. PW3 said that the process includes:a.A notice of intention to plan, issued by a Town or Municipal Council to the Town Planner to prepare an area or town plan.b.Data collection and analysis.c.Open spaces were then under the custody of local authorities.d.Plan proposals based on the data collected and analysed would be used by the planner to draft a plan.e.The draft plan would be circulated through a letter for comments by the relevant stakeholders.f.The draft plan could contain planning proposals for different parts of the area, including defining the existing development, proposed roads, and different use and density zones.g.Upon receiving comments from the stakeholders, the planner would incorporate the appropriate ones in line with the planning policy.h.A final plan and a report would be prepared, describing in detail the features of the plan.i.The final plan would then be submitted to the Commissioner of Lands through the Director of Physical Planning for approval, who, upon approval, would return it to the Director of Physical Planning to enter the same into a register and assign the same a development number.(j)The Approved Development Plan is then approved and signed in triplicate, one copy being retained at the Physical Planning Headquarters office, another by the Commissioner of Lands, and the third one, which is the original, by the District Planning office of the respective area. 91.PW3 stated that the above procedure was not changed by the coming into force of the Physical Planning Act Cap 286 in 1996, going by Part II thereof and its 1st, 2nd, and 3rd Schedules. PW3 told the court that a Part Development Plan, on the other hand, serves the purpose of facilitating alienation, issuance of letters of allotment, and survey of a part of land, and is eventually used in the issuance of a title or a certificate of lease. 92.PW3 stated that in preparing a PDP, one takes into account the compatibility of the proposed use with the land or title, the site, the adjoining land uses, and conformity to the long-term plans for the area. PW3 said that while preparing a PDP, a Planner relies on the Development Plan, as it is the master plan of the town or city. 93.PW3 said that the procedure for the preparation of PDP includes:(a)If the land is unalienated government land, the Commissioner of Lands issues an authority to the Director of Physical Planning to prepare the PDP on a suitable site for allocation.(b)If suitable, the Director of Physical Planning will then proceed to prepare a PDP. Suitability in this case refers to whether the use is compatible with the site, and in which case, the Planner must report to the Commissioner of Lands on whether the proposed use is compatible.(c)Once prepared, the Approved PDP would be circulated to the relevant authorities or institutions for comments. 94.PW3 said that the standard practice before the enactment of the Physical Planning Act 1996, which was repealed in 2019, required the publication of a notice in the Kenya Gazette and through electronic media. 95.PW3 told the court that the relevant institutions at the time included the DC, Town Clerk, Ministry of Education, Public Works, Survey Department, Land Registrar, and the neighbouring institutions. 96.PW3 stated that once comments were incorporated, the Director of Physical Planning would certify the PDP and forward it to the Commissioner of Lands for approval, and once approved, the PDP would be returned to the Director of Physical Planning to enter the same into a register and assign it a PDP number. 97.PW3 said that after that, the land titling process would be followed by an allotment letter accompanied by an approved PDP showing the land size, its user, and a PDP number. PW3 said that, thereafter, survey work and the preparation of a deed plan or survey plan would be done by the Department of Surveys, eventually ending up with the registration and issuance of a title or certificate of lease by the Land Registrar. 98.Concerning the suit property, PW3 told the court that Kitale town was planned, culminating in the preparation of a Development Plan of 1974, whose Departmental Reference Number is 10/72/7, approved by the then Commissioner of Lands, J.A. Ole Ughlin, on 17/1/1974, showing the parcel number as reserved as an open space. 99.PW3 said that the suit property was not allocated, surveyed, or leased based on an approved PDP, rendering its allocation to the 1st and 2nd defendants irregular, since the land was already set aside or reserved as an open space. 100.PW3 said that a PDP that purports to negate the allocation of public land should be rejected as it is irregular, null, and void, and so is the subject property, which should revert to its public use as was reserved. 101.PW3 produced a letter dated 14/9/1972 as P. Exhibit No. (1). PW3 produced PMFI-(2) as P. Exhibit No. (2), and said that from it, one can see the suit property as falling within a triangular area designated as “OS”, which is land for open space, which she said falls under Zone (3) for recreational purposes, according to the Land Act. 102.PW3 said that in the Development Plan Zones 312, 313, 314, and 316, there are recreational open spaces, whose benefits include beautification, cooling, and greening of the town for public purposes. PW3 said that the custodian of open spaces is the county governments, as the legal successors of municipalities. PW3 said that once its Development Plan designates the uses of an area, implementation is supposed to be carried out in line with the Plan and that any contrary implementation would be irregular. 103.PW3 said that between 1974 and the present, the 1974 Development Plan has remained operational in Kitale town. 104.PW3 said that before 1974, the reserved area was part of Kitale Academy, a public school, going by P. Exhibit No. (1), where the Director of Physical Land Planning had requested the surrender of 2.44 Ha from Kitale Primary School land to the municipality, which appeared adjacent to it as per the Development Plan. 105.According to PW3, it was irregular to reallocate already reserved land as an open space. PW3 stated that the letter seeking the surrender had indicated the three uses. PW3 said that she had not come across any acceptance letter from the school in response to the request by her Department. Nevertheless, PW3 said that the request was implemented, though she had not come across any instrument of surrender by the school before the alleged implementation. 106.PW3 said that P. Exhibit No. (1) refers to a short-term development plan for Kitale, which was supposed to run for 10 years. In this case, PW3 clarified that since the Development Plan was approved in 1974, it was to run until 1984. PW3 admitted in cross-examination that she had no evidence on the change of user and the zoning of the user apart from the Development Plan. 107.PW3 admitted in cross-examination that from the Development Plan, it was impossible to ascertain the acreage of the open space; otherwise, a PDP is the one that contains the land size or acreage. 108.PW3 admitted in cross-examination that though his witness statement had described the legal procedures of creating a Development Plan and a PDP, she had not produced any supporting documents that were used in generating the Development Plan. 109.PW3 said that all the letters written to her department by the plaintiff are missing as part of her exhibits. PW3 said that all that she had produced before the court as P. Exhibit No. (2) was a certified Development Plan, but not the original. She said that the original cannot be produced before the court. PW3 said that apart from the word “OS”, the legend in P. Exhibit No. (2) does not define the initials. 110.Equally, PW3 said that the triangular zone in the Development Plan has no numbers. PW3 said that, looking at P. Exhibit No. (1) and without a PDP, it was not possible to tell the acreage out of the 2.44 Ha that was to go to the three uses mentioned in the letter. PW3 said that the open space was to be excised from the initial land belonging to Kitale Academy. PW3 said the initials “OS” in planning language refer to open space, falling under Zone (3). 111.Naomi Rop testified as PW4. She relied on a witness statement dated 25/9/2023 as her evidence-in-chief. PW4 told the court that as a Land Registrar based in Trans Nzoia, her duties include registration of land documents, attending to members of the public, liaising with various investigative agencies, and attending court. 112.PW4 said that the process of registration of leases begins when the land registry receives correspondence from the Directorate of Land Administration, forwarding the leases in triplicate. PW4 said that the lessee with them visits the land registry with the original forwarding letter, picks up the lease, takes it for attestation, and then returns it to the registry for registration. 113.PW4 said that the Lands Registry must confirm the identity of the owner as well as ask for a ground report on the parcel to be registered. PW4 said that the County Land Administrator prepares a ground report, and upon being received and confirmed, the accuracy of the RIM is ascertained as to the parcel being noted in the RIM; amendments are made, and whether the registration details provided in the lease conform with the RIM; registration of the land is done. 114.Further, PW4 said that the registration entails opening a green card and a white card and the issuance of a certificate of lease. PW4 said that a green card is opened in the name of the lessor, usually the national or county government, in the proprietorship section, while the encumbrance section will have details of the lessee and the date of the lease. 115.PW4 said that after registration, all other registrable transactions may take place, including charges, discharges, transfers, cautions, restorations, and successions. PW4 said that all other correspondence is also filed in the parcel file. 116.Regarding the suit property, PW4 said that her office received a request for information regarding Kitale Municipal Blocks 12/152 and 153, through letters from the plaintiff dated 21/12/2020, 26/1/2021, and 18/12/2023, and that, thereafter, by a letter dated 19/12/2023, her office provided the requested documents. 117.PW4 said that the subject property lease was executed by the 4th defendant, who was the then Commissioner of Lands, who then, by a letter dated 8/6/1995, forwarded the same for registration to Kitale Lands Registry, which proceeded to register the same on 17/7/1995, in favour of the 1st and 2nd defendants as tenants in common for a 99 years lease commencing 1/3/1994, with the national government as the lessor, with no ground report found in her office records. 118.PW4 said that on 17/7/1995, the 1st and 2nd defendants transferred the suit property to the deceased for a consideration of Kshs. 1,239,500/=. 119.PW4 stated that through a letter dated 3/10/1996, the then Land Registrar, Mr. Abiud Orora Onyancha, confirmed to the Commissioner of Lands the registration of the suit property, among others. 120.PW4 said that the suit property falls within an area reserved for an open space, going by the PDP Number 190 Departmental Ref. No. KTL 10.93.56, which was shown to her. PW4 produced the letter dated 8/6/1995 as a copy of the lease, as P. Exhibit No. (16), letter dated 3/10/1995 as P. Exhibit No. (17), copy of the green and white cards as P. Exhibit Nos. 18(a) and (b). 121.PW4 said that the transfer of lease was executed by the transferors on 10/7/1995, before the lease was registered, making the process irregular. PW4 said that the stamp has a code of the Land Registrar who signed the transfer, which is missing. She said that the transfer was still valid despite the missing details, in the absence of any evidence of forgery. PW4 said that the open space was never registered in the name of the municipality. 122.PW4 said that she was aware that Kitale Primary School holds a title for the adjacent land. PW4 said that without such registration of the open space, or objection, her office never knew of any irregularity in the allocation and eventual registration of the lease. 123.Further, PW4 said that she never made inquiries to ascertain whether a ground report was prepared by the Land Administration Officer. PW4 said that between 17/7/1995 and the filing of this suit, no restriction was registered against the title register, nor was a complaint lodged over the legality of the registration or the title issued by her office. 124.Ann Murigih testified as PW5. She relied on a witness statement dated 15/12/2025 as her evidence-in-chief. PW5 told the court that she is a Valuer by profession, having worked with the plaintiff since August 2016. PW5 said that following request from the Assets Tracing Division, she carried out a valuation assignment on the market value of the suit property value of the suit property. 125.PW5 said that she visited the Kitale Municipality Block 12/153 for inspection on 4/11/2025, together with the plaintiff’s Surveyor. PW5 told the court that, having conducted market research, she then analysed the findings, prepared a valuation report, and accordingly valued the property free from all encumbrances at Kshs. 80,000,000/=. PW5 produced the valuation report dated 1/12/2025 as P. Exhibit No. (31). 126.PW5 said that she relied on the certificate of official search, the RIM, and comparable available information in compiling the valuation report. PW5 said that she did not involve the 3rd defendant and was not at liberty to do so in making the report. 127.PW5 denied that her report was biased; otherwise, it would contain information obtained from the Ministry of Land. PW5 said that she only came in to value the suit property since she had not been involved in the prior investigations. 128.Leonard Njenga Muigai testified as PW6. He relied on and adopted a witness statement dated 28/2/2025 as his evidence-in-chief. PW6 told the court that he is an investigator with the plaintiff, previously attached to North Rift Regional Office, currently in Garissa, whose duties include investigating cases of corruption and economic crimes, identifying and tracing corruptly acquired assets, preserving assets that are subject of investigation, compiling and submitting investigation reports, and lastly supporting civil proceedings against any person for the recovery of corruptly acquired property or benefits. 129.PW6 told the court that, as the leading investigator in this matter, the investigation complaint was received, and a file was opened on 20/12/2023. PW6 said that the complaint was reinforced by the Senate Standing Committee on Land, Environment and Natural Resources Investigation and some documentary exhibits obtained previously, while investigating Kitale Municipality Block 12/236, which is subject to recovery proceedings in court. 130.PW6 said that the investigation involved requesting and obtaining more documentary evidence from various government departments, such as the Development Plan, the Part Development Plan, the survey plan, the computation file, white and green cards, the registration documents, and other correspondence. 131.PW6 said that after obtaining all those documents and analysing them, they identified persons of interest who were interviewed to obtain witness statements. Eventually, PW6 said that they visited the suit property to appreciate its location and ground status. 132.Further, PW6 said that they had initially visited the land because Kitale School had also indicated that the land had been in use by the school for many years before the deceased acquired it. PW6 said that the site visit also involved a survey and physical planning assessment by a team of experts from the Ministry of Lands. 133.PW6 told the court that the documentary exhibits and the witness statements prompted the plaintiff to reach a factual finding that the suit property was alienated public land, for public use, and was not available for alienation for private use. PW6 said that these facts are derived from the Development Plan prepared in 1973, that the suit property fell within 5.5 Ha located between the former Kitale - Webuye Road and the Kitale Club, which was in use by Kitale School. 134.PW6 said that out of the large land, a triangular-shaped area bordering Kitale Club was excised from the said Kitale School land and preserved as open space for better planning and use. PW6 said that despite the excision, Kitale School continued to utilise the entire 55 Ha of land, including the open space, and also made an official request to the Commissioner of Lands for the allocation of the open space to itself through a letter dated 15/7/1985. 135.PW6 stated that while the Kitale School was awaiting a response from the Commissioner of Lands, the 1st and 2nd defendants, in connivance with the deceased, fraudulently and illegally, with the approval of the Commissioner of Lands, hived off a portion of the open space, creating the suit property and obtained a title to the same. 136.PW6 pointed out that the letter of allotment used had no PDP in contravention of the law. PW6 said that following a survey of the parcel as per F/R No. 272/111, despite the absence of a PDP and a ground report, the RIM was amended to reflect the property, and thereafter the title documents were prepared, registered, and issued to the 1st and 2nd defendants. PW6 said that later on, the initial allottees or lessees transferred the title to the suit property to the deceased. 137.PW6 produced the Senate Committee Report as P. Exhibit No. (22), survey report dated 24/2/2022 as P. Exhibit No. (23), letter dated 15/7/1985 as P. Exhibit No. (24), proceedings in the succession cause for the deceased’s estate as P. Exhibit No (25), Gazette Notice No. 9889 as P. Exhibit No. (26), demand letters dated 25/11/2024 and 20/1/2025, as P. Exhibit Nos. 27(a), (b), and (c), acknowledgement emails and service of the demand letters as P. Exhibit Nos. 28(a) and (b). 138.Further, PW6 stated that the key highlights of his investigations and analysis were that the land in question was in use by Kitale School from 1929 through farming and other related activities up to 1972, when an activity related to physical planning commenced, focusing on Kitale Town, as shown by the letter produced as P. Exhibit No. (11) written by the Director of Urban Rural Physical Planning to the School with copies to the Town Clerk, and the Ministry of Education, seeking the surrender of 2.44 Ha to create an access road, and an open space (park). 139.PW6 said that the request was adopted as per P. Exhibit No. (2), and the area hived off is implemented in the Development Plan that was approved by the Commissioner of Lands on 17/1/1974 under Departmental Reference No. 10/72/7. PW6 said that in his interview with the Physical Planner, he was told the initials “OS” refer to open space and that all the surrounding neighbourhood is for recreational purposes. 140.PW6 said that another confirmation of the implementation was a letter dated 15/7/1985, produced as P. Exhibit No. (24), attaching a sketch map where the school was requesting additional land for a secondary school, showing the land as an open space. 141.PW6 said that the suit land, once it was reserved as an open space, became unavailable for reallocation for private use as a residential area, going by P. Exhibit No. (3). PW6 said that the 4th defendant is the one who, upon the application, recommended the alienation which was irregular, despite the remarks by the Permanent Secretary, Mr. J.K. Sang, and the Minister, Hon. J.K. Mulinge, on 16/2/1994 and 24/4/1994. PW6 termed the Commissioner of Lands' recommendation misleading since the land was not available for reallocation. 142.PW6 said that those approvals by the Minister, Permanent Secretary, and the Commissioner for Lands did not change the status of the suit property as part of the open space. PW6 said that following this form of approval, a sketch was prepared as a purported PDP attached to the letter of allotment dated 7/3/1994 issued by Mr. P. Amiani. PW6 said that the purported PDP does not show where it was drawn from. PW6 said that the PDP and the Development Plan have common features, such as the surrounding neighbourhood. 143.PW6 said that it was irregular to attach such a PDP without quoting a PDP number. PW6 also referred to P. Exhibit Nos. (7), (8), (10), (11), (12), (15), (16), (17), (20), (21), (22), (23), and (37), as among the documents which he retrieved from PW1, 2, 3, 4, and 5 and he sued in his investigations, pointing out the several irregularities in the process of alienation of the land. 144.PW6 said that the conclusion by the Senate in its report who fund the land should be part of public land belonging to the school. PW6 said that the 3rd defendant is the administrator of the estate of the deceased. PW6 said that he was unable to trace the 1st and 2nd defendants. 145.In cross-examination, PW6 told the court that the investigations were commenced following a general complaint by an unnamed but identified person that the subject property was irregularly allocated and registered. PW6 could not tell who prepared the sketch plan found in the computation file in the hands of PW1, as the Director of Land Administration. 146.PW6 also admitted that the Physical Planner and the Director of Surveys did not inform him of the source of the sketch plan used by Mr. Simiyu in the allocation process. PW6 admitted that the department that participated in the allocation and registration processes has not been sued in this suit. 147.PW6 said that his investigations started in 2020 during the lifetime of the deceased, to whom he also wrote as a person of interest in relation to a different parcel of land. PW6 admitted that he never sought a witness statement to know the position of the Kitale School in relation to this subject land or sought a copy of documents, including a title for their land, for the 55 Ha. 148.PW6 admitted that the plaintiff has no Development Plan preceding P. Exhibit No. (2). PW6 admitted that he had no correspondence from the Kitale School accepting to surrender 2.44 Ha for the open space as requested in P. Exhibit No. (1). PW6 admitted that he did not come across any evidence of such surrender of the 2.44 Ha for purposes of reservation apart from P. Exhibit No. (2). PW6 admitted that he had not come across any correspondence confirming the reservation and approval of the same. 149.Further, PW6 said that it was Kitale School that lodged a complaint with the Senate Committee claiming 10 acres of land, as per pages 79 and 136 of the Senate Report. PW6 said that in the said presentation, the School concedes to surrendering 2 acres of its land for the construction of an access road, but not for an open space. PW6 admitted that he never came across any records for the surrendered 2.44 Ha as an open space, including specific records for the size or acreage of the open space, save for the survey report produced as P. Exhibit No. (23). 150.According to PW6, the survey report was done after inviting and in the presence of the deceased. PW6 conceded that he did not engage the National Land Commission in his investigations. PW6 said that he did not obtain any information on the deceased's role in fraudulent activities, acquiring the suit property, since the inception of the allocation process, as per P. Exhibit Nos. (3) and (4). 151.PW6 said that the relevant departments should have objected to the allocation. PW6 said that from his investigation, he did not come across any records for the reservation of the open space at the Land Department, save for the endorsement in P. Exhibit No. (14), whose maker of the entries is not known to him. 152.PW6 conceded that there were many actors in the whole process of allocation and registration of the subject property, going by P. Exhibit No. (4). PW6 told the court that investigations narrowed down to the 4th defendant, for he bore the greatest responsibility. 153.PW6 conceded that the 4th defendant relied on a recommendation by various other key stakeholders. PW6 conceded that P. Exhibit No. (3) and (5) were not personally signed by the 4th defendant but by a Mr. P. Amiani. 154.PW6 admitted that he never sought a witness statement during the course of the investigation from Mr. Amiani or any of the signatories to the other documents, including the 4th defendant. PW6 said that in the course of his investigations, he gathered no direct evidence that the 4th defendant personally benefited from the said transaction. 155.In addition, PW6 said that before signing P. Exhibit No. (3), the 4th defendant should have sought confirmation of the availability of the land for alienation to private use; otherwise, the letter P. Exhibit No. (4) was misleading in view of the Development Plan. 156.PW6 insisted that the 2.44 Ha was legally surrendered and excised as an open space, going by P. Exhibit Nos. (1) and (2). PW6 said that this was confirmed in P. Exhibit No. (14), following a request by P. Exhibit No. (1). PW6 said that he has not come across any rejection of P. Exhibit No. (1) by the school; otherwise, in P. Exhibit No. (22), at page 137, the school concedes to such surrender. PW6 said that the situation is also confirmed in P. Exhibit No. (23). 157.PW6 said that P. Exhibit No. (15) was retrieved from both the Director of Surveys and the Directorate of Land Administration, though none of the departments could explain its source, maker, or origin. 158.Edwin K. Tum testified as DW1. He relied on a witness statement dated 5/6/2025 as his evidence-in-chief. DW1 told the court that he is the legal administrator of the estate of the deceased, who died on 2/2/2022, and was the registered owner of Kitale Municipality Block 13/153 since 17/7/1995. 159.DW1 denied that the land was illegally registered in favour of the deceased. DW1 said that, as per the white card, the 1st and 2nd defendants were the initial registered owners of the suit property before the deceased subsequently purchased it from them in January 1995, fulfilled his obligation, and a transfer was duly executed in his favour. 160.DW1 told the court that before the transfer, his late father conducted due diligence and confirmed the registration of the ground status of the suit property as uninhabited and free of any encumbrance. DW1 said that the due diligence confirmed and established that the 1st and 2nd defendants had a good title on the strength of the documents they had and the records at the land registry. 161.DW1 said that upon the transfer, the deceased took immediate possession of the subject land until his demise, whereafter the beneficiaries have been paying land rates for the suit property. DW1 told the court that the deceased was, therefore, an innocent purchaser for value without notice of any information or defect in the title or irregularity, having obtained the title after following due process. 162.DW1 told the court that the claim that the deceased irregularly obtained title is highly suspect, or malice coming after his demise on 22/2/2022, yet all along, there was no claim by the faceless person whom the plaintiff claims instigated the investigations challenging his acquisition of the land. DW1 termed it ironic that the plaintiff has not sued all the relevant offices for officers who approved the allocation of the suit property and has opted to sieve out without giving the criteria on whom to pursue. 163.Further, DW1 stated that whereas the plaintiff’s mandate stems from reclaiming or protecting a parcel of land acquired through fraud or corrupt dealings, the documents so far presented do not point to any corrupt dealings or fraud perpetrated by the deceased. 164.DW1 told the court that the claim that the suit property was reserved as “open space” fails, given that:a.At the time of allocation, the land was not classified as public land intended for public use.b.The status of the suit property, as per the custodian of land records, the Ministry of Land and Settlement, at the time of the allocation, was noted as vacant government land, making the Commissioner of Lands statutory and legally bound to allocate the same to the 1st and 2nd defendants after obtaining the necessary approvals from all the relevant offices in the absence of any objection.(c)The 1st and 2nd defendants made an application for allocation of the suit property, which was accepted, and a letter of allotment was issued upon obtaining the necessary approvals from all the relevant authorities. 165.DW1 said that the suit property had not been classified as an open space, and Kitale Academy, which the plaintiff alleges was unlawfully deprived of the property, otherwise, it seems illogical that it had to apply to be allocated the very same property. DW1 told the court that the Kitale School or any other entity had never registered any interest in the suit property or made a complaint over the same; otherwise, the plaintiff could have tendered such a complaint before the court. 166.DW1 said that he was not aware of any specific complaint over this title, which was investigated by the Senate before this suit was filed. DW1 told the court that the suit property was registered and acquired regularly, for consideration for the same was paid, the RIM was duly amended, stamp duty and all relevant dues were paid, and the lease was registered and issued. 167.DW1 said that the plaintiff has been unable to tender evidence to show the extent or delineation of the reserved open space or establish a reasonable action against the 3rd defendant or the deceased, which claim is in personam and cannot be sustained against him. 168.DW1 told the court that the suit was orchestrated with malice and selfishness and was an attempt to wrestle back the suit property under the guise that it was public land, to bypass the correct channel of compulsory acquisition under the law. 169.DW1 termed the plaintiff’s claim as suspect, coming 30 years after the deceased acquired the suit property and conveniently after his death, knowing too well that the 3rd defendant may not have the historical background regarding the suit property. 170.DW1 produced the original certificates of lease issued on 5/3/2022 and 17/7/1995 as D. Exhibit No. (1) and (2), a copy of a letter dated 9/2/1994 as DMFI-No. (4). DW1 also relied on letters dated 6/4/1994, 19/6/1994, receipt No. DO66 367, letter dated 14/2/1995, standard form on instruction to prepare a lease, certificate of stamp duty dated 5/6/1995, letter dated 8/5/1995, transfer dated 10/7/1995, and rate payment invoice, marked DMFI-No. (5) - (16) (list late produced as D. Exhibits No. (4) - (16). 171.DW1 said that all the documents used to facilitate the transaction, including the title documents, have never been recalled, reviewed, or revoked by the government department on account of irregularity or illegality. 172.DW1 said that the preparation of the survey report, which PW5 produced as Exhibit No. 30, was done without the knowledge or participation of the estate of the deceased. 173.DW1 told the court that the suit property is under the use of the estate, though part of it is leased to third parties. DW1 said that the due diligence undertaken by the deceased was both at the Lands Registry and in the ground documents held by the initial allottees as of the date of the sale and transfer. 174.DW1 said that nothing, at the time, showed any defects in the title or notice of adverse claims to the suit property. Though the 3rd defendant had no sale agreement, DW1 confirmed that the price is captured in P. Exhibit No. (16). Equally, DW1 said that he had no stamp duty payment receipt before the court. DW1 said that he has the original lease dated 13/4/1995, which he displayed before the court, different in terms of P. Exhibit No. (15). DW1 confirmed the locality of the suit property as falling between Kitale Golf Club and the Kitale Primary School on the Southern side, as reflected in the Development Plan. DW1 confirmed his involvement in the Senate Report. 175.DW1 said that he was aware of the plaintiff's investigations as of the lodging of the succession proceedings. DW1 said that due to the same, the suit property was excluded from distribution to the beneficiaries of the estate in view of the restriction lodged against the title by the plaintiff. 176.Further, DW1 said that he was invited and attended an interview with the plaintiff on 29/10/2024 and submitted ownership documents together with a cover letter. DW1 insisted that his late father was not involved in any way in the allocation process of the land to the 1st and 2nd defendants, and that he only featured during the sale and transfer in 1995. 177.DW1 said that Kitale School owns parcel No. 229, whose title was obtained in 2010. DW1 said that the Senate Report does not reference Parcel No.153, going by its recommendation on page 123 of Exhibit No. (22). Further, DW1 said that up to and including 2023, the plaintiff never contacted him over the subject property. 178.After the close of the 3rd defendant’s defence, the 4th defendant opted to close his defence without testifying. Equally, the 1st and 2nd defendants did not participate or give evidence in the suit. 179.The plaintiff relies on written submissions dated 5/6/2026, isolating seven issues for the court’s determination. On jurisdiction, it is submitted that this court, under Article 162(2) of the Constitution as read together with Section 13 of the Environment and Land Court Act, has jurisdiction to hear and determine this suit brought by the plaintiff to recover or protect public property under its mandate in Section 11(1) (j) of the Ethics and Anti-Corruption Commission Act, 2010. 180.The plaintiff submits that, as held in the Ethics and Anti-Corruption Commission -vs- Kokita alias Halima Chelagat Kokota & 2 others [2025] KEELC 4799 (KLR), the law is not conditional on whether a complaint has been made by the National Land Commission or any other person; otherwise, the plaintiff can investigate loss or damage to public property on its own motion or on a complaint by any person or authority, and also institute recovery proceedings. The plaintiff submits that under Sections 41, 42, and 43 of the Limitation of Action Act, such a suit is not time-barred and excluded from limitation causes under Section 42(1) (2) of Cap 22. Reliance is placed on Ethics & Anti-Corruption Commission -vs- Anyega & 4 others (ELC 249 of 2018) [2024] KEELC 613 [KLR]. 181.The plaintiff submits that the degree and extent of historical land grabbing in Kenya, as was established in the Ndungu Report, means that it will take years for the plaintiff or any other public entity to investigate and recover all such land. 182.On whether the suit property was alienated land reserved for a public purpose, and thus unavailable for allocation and alienation, the plaintiff submits that it has produced P. Exhibit Nos. (1), (2), and (24) clearly delineate the suit property, which abuts Kitale School and Kitale Golf Club, which are zoned as (3) for recreational purposes, as clarified by PW1. 183.The plaintiff submits that at the time of the request for surrender, Kitale School did not have title to the initial 55 Ha indicated in P. Exhibit No. (2) and therefore the issue of surrender was, therefore, an issue of surrender of the physical land as opposed to surrender of title. 184.The plaintiff submits that the lack of title as inferred in P. Exhibit No. (24) as the plan attached, which is a mirror image of the Development Plan. The plaintiff submits that in dealing with public land, which in most cases lacks documentation, the court should not adopt a strict, mechanistic, or pedantic approach to interpretation; otherwise, it could lead to a miscarriage of public justice and privilege land grabbers, while at the same time leading to an absurdity which is an outcome the court should avoid. 185.Further, the plaintiff submits that, for instance, if the court were to find that the surrender was ineffectual for want of registration or proper documentation, then the position ante would prevail, that the suit property was public land alienated for educational purposes and in possession of the school. The plaintiff submits that, logically, there cannot be a finding that, since the surrender by the School was ineffectual, the land was then available for alienation to the 1st and 2nd defendants. 186.The plaintiff submits that it should be noted that the letters evidencing surrender, such as P. Exhibit No. (2) dates back to 1972, and it is not recommended to require the makers to attend court to produce the same. 187.The plaintiff submits that those documents have been produced by consent, and no adverse comments can validly be made regarding their production, and that under Section 35 of the Evidence Act, the court has powers to allow production of documents without calling their makers, particularly in the case of public documents, whose authenticity is not in dispute. The plaintiff submits that upon exercising such discretion to admit documents, the court cannot turn around and make adverse findings for failure to call the makers. 188.The plaintiff submits that the court should take notice that P. Exhibit No. (1) is the only existing Development Plan for Kitale Municipality from the time it was approved up to and even after the suit property was created and registered in favour of the 1st defendant, and has never been revised or amended, and the defendants failed to give contradictory evidence. 189.The plaintiff submits that the Development Plan is the superior document in relation to the planning of Kitale Municipality and thus any document, for example, the PDP and the survey plan, is subject to it. 190.The plaintiff, therefore, submits that the lack of revision of the DP, as explained by PW1, means the PD remains valid, and to make a contrary finding would be absurd, as it could mean that the developments within Kitale municipality proceeded unplanned, contrary to planning laws, meaning therefore that all land within Kitale municipality reverts to the government. 191.The plaintiff submits that the Development Plan produced by its witnesses is properly before the court, being a public document, having been prepared by the Department of Physical Planning, and constitutes admissible evidence worthy of consideration by this court, more so for it bears proper certification under Sections 68(2) (c) and 80 of the Evidence Act, thus falls under the purview of presumption of genuineness under Section 83(1)(c) of the Evidence Act. 192.The plaintiff submits that a court can only decide on issues raised by the parties or arising from the pleadings and cannot raise its own issues Suo moto, in the judgment, and make it part of the judgment without allowing the plaintiff to tender evidence on the same; otherwise, it would amount to a violation of the constitutional right to fair hearing. 193.The plaintiff submits that there is a presumption of validity of the official documents, and the onus of dislodging such a presumption is on the party disputing validity. In this case, the plaintiff submits that neither of the defendants has disputed the validity of the Development Plan in their pleadings nor at the trial, and as such, cannot be a basis for the determination of the suit. The plaintiff submits that the validity of the Development Plan cannot be challenged at this stage of the proceedings. Reliance is placed on Mumo Matemu -vs- Trusted Society of Human Rights Alliance & Others [2013] eKLR, Republic -vs- Commercial Bank of Africa Ltd & Another Ex parte Masto Developers Ltd [2011] KEHC 2650 [KLR] and King’oo -vs- Mwangi [2019] KECA 734 [KLR]. 194.The plaintiff submits that it has been said that courts should be conscious of the socio and economic consequences of their decisions and given that the Development Plan has been in use in Kitale Municipality since 1974, when it was duly approved, to plan the town and alienate land, to nullify it in a dispute of their nature where other key stakeholders and a host of interested parties both private and public have derived interests or planned their properties in line there with, would be highly detrimental to public interests and private rights. 195.The plaintiff submits that the Development Plan, being the master plan of Kitale Municipality, was prepared and properly certified by the Department of Physical Planning, assigned a Departmental Reference Number, and approved by the Commissioner of Lands, which, as confirmed by PW2, was in time with the Land Planning Act, later repealed by the Physical Planning Act Cap 286. 196.The plaintiff submits that Regulation 11(3) of the Development and Use of Land (Planning) Regulation 1963, under the then Land Planning Act Cap 303, which was the operative planning law before Cap 286, is the one which was used to create the open space and that it defined public purpose as any non-profit making purpose as could be declared by the Minister to include education, medical, and religious, public open spaces, and car parks, government and local government purposes. 197.The plaintiff submits that Section 16 of Cap 286, as indicated, the various uses of a Development Plan (therein referred to as a Regional Physical Development Plan) provide for uses that include recreational areas such as parks, open spaces, and reserves. 198.Further, the plaintiff submits that Section 21 of Cap 286 further provided that once approved, no development could take place unless it conformed to the approved plan. 199.Further, the plaintiff submits that under Section 29 of Cap 286, local authorities had the mandate to maintain areas reserved for, among others, open spaces. The plaintiff submits that under the Physical and Land Use Planning Act, 2019, open spaces are still provided for. 200.Though the cited laws have not defined what an open space is, the plaintiff relies on the definition in the Queen on the Application of the Friend of Finsbury Park & Haringey London Borough Council & Festive Republic Limited, Live Nation (Music) UK Limited & The Open Spaces Society [2017] EWCA Civ 1831, Cause No: C/2016/2662, Hong Kong Planning Standards and Guidelines. At Chapter 4 on Recreation, Paragraph 1.1. 201.The plaintiff submits that, from the citation, open spaces are tools for the well-being of the public and the environment to actualise Articles 42 and 43 of the Constitution, namely, environmental, economic, and social rights, which are a key element for individual and social well-being. The plaintiff submits that open spaces are inherently public in nature, whose ownership and management must be for public benefit and cannot be placed in the hands of private persons. 202.The plaintiff submits that it follows, therefore, that open spaces fall within the category of alienated public land and, as such, are a public utility to be used for public benefit. 203.The plaintiff submits that the applicable law at the relevant period of this suit sought to distinguish unalienated government land and alienated government land under Section 2 of the repealed Government Land Act Cap 280, a position also clarified under Section 3 of the Physical Planning Act Cap 286. 204.The plaintiff submits that a clear analysis of those Sections discloses that land reserved for public purposes is effectively alienated government land, notwithstanding the lack of registration or allotment. The plaintiff submits that it is not the registration of a property that gives it its public purpose, identity, and assures that identity upon reservation, as held in Kenya Anti-Corruption Commission -vs- Frann Investments Ltd & Others [2020] eKLR, and in Frann Investments Ltd -vs- Kenya Anti-Corruption Commission & Others, Civil Appeal No. E038 of 2021 citing with approval Dina Management -vs- County Government of Mombasa Petition No, E010 of 2021. 205.Further, the plaintiff relies on Sunshine Villas Ltd -vs- County Government of Kisumu & Another, EACC (IP) [2023] KEELC 2160 [KLR], where the court recognised the reservation of public land through the Medium Term Development Plan and the PDP. 206.The plaintiff submits that the suit property was public property at all times and previously formed part of Kitale School and was reserved specifically for an open space as per the Senate Report produced as P. Exhibit No. (22). Given the reservation, the plaintiff urges the court to find that it was unavailable for alienation as held in Dina Management -vs- County Government of Mombasa (supra), and Association of Vasanth Apartments Owners -vs- Gopinath & Others, Indian Civil Appeal No. 1890-91 of 2010. 207.The plaintiff submits that the court should not set an unduly high bar to determine the question of the availability of land for alienation. Reliance is placed on Kenya Anti-Corruption Commission -vs- James Raymond Njenga & Another, Eldoret HCC No. 61 of 2008, and Kipsirgoi Investments Ltd -vs- Kenya Anti-Corruption Commission, Civil Appeal No. 288 of 2010. 208.As to whether the alienation of the suit property to the 1st defendant was in accordance with the law, the plaintiff submits that under Section 3(a) of the Government Land Act, the acts of the President were subject to any other written law, in this case which is the Land Planning Act, Cap 202 and the Regulation of 1961, which prescribed the creation of an open space. 209.The plaintiff submits that the delegated presidential powers to the Commissioner of Lands under Section 7 of the Government Land Act exempted him from exercising powers expressly belonging to the president under Section 3 thereof. Reliance is placed on James Joram Nyaga & Another -vs- Attorney General & Another [2007] eKLR, that under Section 3 of the Government Land Act, the power to alienate government land is granted to the president and not the Commissioner of Lands except in some limited circumstances, such as a grant for educational, religious, or sports purposes. The plaintiff also relies on Kenya Anti-Corruption Commission -vs- Frann Investments Ltd & Others, Mombasa HCC No. 215 of 2009, where the Commissioner of Lands was found liable for breach of trust, since he had no such delegated powers to allocate land to a private individual. 210.The plaintiff submits that whereas under Section 9 Part 111 of the repealed Government Land Act, land not required for a public purpose situated in a township could be allocated by the Commissioner of Lands, the procedure to follow is set out in Section 12 Part 1V, and V of the Government Land Act (repealed), as explained by PW2, which the suit property did not go through. Reliance is placed on Nelson Kazungu Chai & Others -vs- Pwani University [2014] eKLR. 211.The plaintiff submits that, given that in this allocation a PDP was not prepared, an application letter for the plot is missing, no advertisement for public auction was made, which means therefore that the allocation is irregular. Reliance is placed on Dina Management -vs- County Government of Mombasa & Others (supra). 212.It is submitted that, though aware of the reservation, the suit property was described as vacant government land in P. Exhibit No. (4), the 4th defendant, despite being the custodian of P. Exhibit No. (2) proceeded to recommend approval, resulting in the approval and allocation by the Permanent Secretary and the Minister, making him personally liable. 213.It is submitted that despite the clear procedure in law, the 4th defendant proceeded to issue an allotment letter without a PDP, advertisement, or inquiries to the Senior Planning Records, who maintain planning records such as the Development Plan and Survey Plan to establish the availability of the suit land for allocation. The plaintiff submits that the PDP, being a mandatory requirement, was missing and instead what was used was a sketch map allegedly lifted from the Development Plan and a misrepresentation in the letter of allotment of the property on its nature, character, and identity as un-residential property, to defeat the public interest in the land, and further, which acts reeks of deliberate acts of illegality and fraud. 214.Similarly, the plaintiff submits that the prescribed fees in the offer letter were paid without a valuation report and, similarly, were paid outside the 30 days, under Clause No 2) of the letter of allotment, without any application for extension of the offer beyond 7/4/1994, going by P. Exhibit No. (8). 215.The plaintiff submits that the survey of the suit property was also undertaken without a PDP and based on a sketch plan. The plaintiff submits that the certificate of lease was registered in the absence of a ground status report as required by law, yet it is a necessary step in the alienation process, as it allows for inquiries from documentary sources and through physical visits to the land to establish its status before registration. The plaintiff submits that even before the registration could take place, the 1st and 2nd defendants purportedly transferred the land to the deceased as per P. Exhibit Nos. (15) and (17). 216.The plaintiff submits that in view of the foregoing irregularities and illegalities, the 1st and 2nd defendants had no valid title to transfer to the 3rd defendant. The plaintiff submits that a title is derived from its roots, grounded in the process of acquisition. In this case, the foundation of the title has been established as shaky and untenable, rendering the resultant title deed a nullity ab initio. 217.The plaintiffs urge the court to be guided by the caselaw of Attorney General & Another -vs- Abdi Adan Hussein & Others Civil Appeal No. Eldoret 100 of 2018, Kipsirgoi Investments Ltd -vs- KACC (supra), Dina Management Ltd (supra) and Karen Roses Ltd -vs- Attorney General & Others [2019] eKLR. 218.The plaintiff submits that in the quest to prove that the title was legitimate as pleaded in the defence, DW1 merely regurgitated the process already demonstrated by the plaintiff to be illegal and rendering the title defective, relying on copies of the certified copies of documents by the plaintiff, save for D. Exhibit No. (1), and failed to provide the original documents to the plaintiff. 219.The plaintiff submits that the deceased, contrary to the evidence of DW1, was not an innocent purchaser for value without notice of any defects in the title, for the application for the plot by the initial allottees was not made, evidence of due diligence was not availed, and a PDP was not prepared to support the allocation. Reliance is placed on Dina Management Ltd (supra), at paragraph (107), and Nelson Kazungu Chai & Others -vs- Pwani University (supra). 220.The plaintiff submits that the court should take note that the transfer of lease produced as D. Exhibit No. (13) was executed before the acquisition of the title by the 1st and 2nd defendants, as the lease in their favour was yet to be registered. 221.Interestingly, the plaintiff submits that the lease produced by DW1 as D. Exhibit No. (3) indicates a different date of execution by the 4th defendant, compared to P. Exhibit No. (15), obtained from the official records held at the office of the Land Registrar. 222.The plaintiff submits that the deceased, if at all he conducted any due diligence, should have known that the PDP was missing, should have sought clarity from the custodian of the Development Plan, which was a publicly available document, and also should have visited the land to establish that it bordered Kitale School, with all likelihood of being public land. 223.Further, the plaintiff submits that the failure by DW1 to produce the sale agreement or proof of payment made the 3rd defendant’s defence fatal. Reliance is placed on Chauhan vs Omagwa [1985] KLR 656, Ethics and Anti-Corruption Commission -vs- Kokita alias Halima Chelagat Kokota (supra), Chemey Investment Ltd -vs- Attorney General & Others Civil Appeal No. 349 of 2012. 224.The plaintiff submits that the 3rd defendant, as an administrator of the estate of the deceased, assumed liability and responsibility for all the deceased’s liabilities as per P. Exhibit No. (25) and (26). 225.On whether particulars of illegality, fraud, abuse of office, and breach of statutory and fiduciary duty have been proved against the defendants, the plaintiff submits that the 4th defendant, despite being the signatory and custodian of P. Exhibit No. (2) cannot feign ignorance of the public nature of the suit property, failed to make any inquiries to the SPRO, went beyond his powers under Section 7 of the Government Land Act, issued a letter of allotment without a PDP or valuation to ascertain the requisite fees payable, and alienated public land. 226.Further, it is submitted that the 4th defendant failed at his core responsibility, but was subject to delegation. Reliance is placed on KACC -vs- Frann Investments (supra) and James Joram Nyaga & Another -vs- Attorney General (supra). 227.The plaintiff, in view of the foregoing, submits that it has established fraud and illegality against the 1st, 2nd, and 3rd defendants. 228.The plaintiff submits that efforts to trace the 1st and 2d defendants was in vain, begging the question whether these persons truly existed for no documents bears their identification cards, and who immediately after obtaining and accepting the offer, wrote a letter dated 19/4/1994, to transfer the plot to the third party, namely the deceased, a fact indicating that the deceased was present in the transaction there from the very beginning. 229.The plaintiff submits that from the evidence tendered, there are clear anomalies in the lease as to dates of execution by the 4th defendant, according to P. Exhibit No. (15) and D. Exhibit No. (3), which are signs of fraud and illegality. 230.Equally, the plaintiff submits that the quick succession in which the deceased sought the property and a transfer was signed in his favour even before registration draws the inference that the deceased was present throughout the impugned process and thus aware of the fraud and the illegality since the issuance of the letter of allotment. 231.The plaintiff submits that, given the foregoing, it is entitled to the reliefs sought in the plaint over the suit property, which, as admitted by DW1, is under commercial and agricultural use by the estate of the deceased, thus gaining income to the detriment of the public, which calls for damages for loss of user and interest as per the valuation report produced as P. Exhibit No. (31). 232.The 3rd defendant relies on written submissions dated 8/6/2026, isolating seven issues for the court’s determination. 233.It is submitted that the duty of this court is to establish, before concluding that the plaintiff’s case is uncontroverted, that it has adduced some credible and believable evidence in the absence of rebuttal evidence, the defence can stand. Reliance is placed on Charter House Bank Ltd -vs- Frank N. Kamau [2016] eKLR. 234.On whether Kitale Municipality Block 12/153 is part of public property alienated or reserved for public purpose, to wit, open space, the 3rd defendant submits that the plaintiff was expected to lead evidence to prove that claim, which it has failed to do. 235.The 3rd defendant submits that, whereas the plaintiff pleads that the suit property was created out of a larger parcel of land allegedly belonging to Kitale School, no evidence was led to support that fact except P. Exhibit No. (1), which is a letter dated 14/9/1973, which in law cannot be deemed as evidence of title to property. 236.The 3rd defendant submits that in the said letter, the plan proposal was to reserve an area for a new and better function between the school and Mumias Highway. It is submitted that there was no evidence by the plaintiff of any response to the said letter or acceptance by Kitale Primary School of the proposed 2.44 Ha for public use either as a road or as an open space, or evidence tendered that the land was compulsorily acquired from the Kitale Primary School for the creation of an open space. 237.The 3rd defendant submits that there was also no evidence of any conversation about the land allegedly allocated for education purposes to an open space. 238.The 3rd defendant submits that the acreage allegedly surrendered by Kitale Primary School for allocation as an open space was also never clarified by any of the plaintiff’s witnesses, considering that, going by the contents of P. Exhibit No. (1), the 2.44 Ha was proposed to be surrendered for public use as a road and an open space. 239.Similarly, the 3rd defendant submits that it is notable that no representative from Kitale Primary School was called as a witness by the plaintiff to confirm it initially had proprietary rights over the 2.44 Ha allegedly hived from the 55 Ha, it owned and to further shed light on this alleged surrender of 2.44 Ha to support the plaintiff’s claim that indeed the subject land was surrendered to Kitale Primary School for public use as an open space and the reason according to the 3rd defendant is simple; that Kitale Primary School never surrendered any portion to be reserved. 240.The 3rd defendant submits that that position is further fortified by the fact that even as late as 2021, and going by P. Exhibit No. (21), Kitale Primary School was still claiming 55 Ha, which had allegedly been allocated as per paragraph 22 of the Minutes of the Senate Committee. It is submitted that this then raises doubts whether indeed the alleged open space was surrendered by the Kitale Primary School as alleged by the plaintiff, and if it was, the trail of events backed by documentation on how it was hived from its land is missing. 241.The 3rd defendant, regarding the Development Plan produced as P. Exhibit No. (2) submits that going by the contents of paragraph 7 of the plaint, had the reservation been an open space, followed by preparation drawing and revision of the Development Plan for Kitale Municipality, it was expected to give the sequence of events supported by documentary evidence on the process leading to the preparation drawing and revision of the Development Plan, which culminated into creation of the open space. 242.The 3rd defendant submits that despite PW3 indicating in paragraph 7 of the witness statement that there was an elaborate procedure in the creation of a Development Plan, no documents were produced to confirm whether the process was followed in the creation of P. Exhibit No. (2) and in particular the inclusion of the open space as part of the Development Plan, keeping in mind that the area allegedly allocated as an open space was originally allocated for educational purposes. 243.The 3rd defendant submits that it should be noted that the Development Plan was approved subject to the satisfactory completion of the setting a part of the land included in the plan, meaning that the mere fact that the open space was included in the Development Plan did not automatically mean that everything had been complied with as other processes needed to take place to complete the setting a part of the open space. 244.Therefore, the 3rd defendant submits that the plaintiff failed to tender any evidence through its witnesses to prove that the process of creating the alleged open space was procedural. 245.The 3rd defendant submits that PW3 talked of the Development Plan covering 10 years, meaning it could only exist until 1984. Whereas PW3 said that it could still exist after lapsing, the 3rd defendant submits that PW3 did not point to the court any specific provision in the Land Planning Act, which was the substantive provision providing for such extension. 246.Further, the 3rd defendant submits that whereas PW1 and PW3 alleged that the initials “OS” stand for open space, as per the Development Plan. An “OS” fell in Zone 3, which stands for recreation. 247.The 3rd defendant submits that nowhere in the Development Plan was it indicated that the abbreviation “OS” stood for Open Space, noting further that the area indicated as an open space did not contain the prefix (3), placing the alleged open space in the category of a recreation zone. 248.The 3rd defendant submits that the plaintiff failed to establish that the suit property was part of public land reserved as an open space. Reliance is placed on EACC vs Kokita alias Halima Chelagat Kokota (supra). 249.On whether the suit property was available for alienation and/or allocation to the 1st defendant or any other person, the 3rd defendant submits that under Section 2 of the Government Land Act, repealed, unalienated government land includes land where the Commissioner of Lands has not issued any letter of allotment and whose alienation is governed by Part 111, 1V and V of the said Act. In the instant suit, the 3rd defendant submits that there was nothing to show prior leasing or allotment of the suit property before the 1994 allocation to the 1st and 2nd defendants. 250.The 3rd defendant submits that a mere proposal like P. Exhibit No. (1) was not a letter of allotment, while the Development Plan dated 17/1/1994 was a short-term Development Plan, whose creation was not supported by any document and whose lifespan was, in any event, that could not transcend beyond 15 years. 251.The 3rd defendant submits that the status of the subject property, as per the custodian of land records, the Ministry of Lands and Settlement at the time of allocation, was noted as vacant government land and was confirmed as available for alienation through P. Exhibit No. (3), on top of other confirmations by the various departments of its availability, and whose allocation to the 1st and 2nd defendants as per PW1 was never withdrawn or cancelled. 252.On whether the 1st and 2nd defendants acquired a good title, right interest and or estate capable of being transferred to the deceased, the 3rd defendant submits that the said title was preceded by a valid process of inquiry from all the relevant departments of the government, who did not raise any objection to the allocation, the status of the land by the custodian of land records was sought, requisite payments were made and the RIM amended by the Director of Surveys and eventually stamp duty for the lease paid before the lease was issued to the 1st and 2nd defendants as per P. Exhibit No. (21), (12) and (12), making the lease held by the 1st and 2nd defendants protected in law under Section 22(1) of the repealed Registration of Titles Act and the retired Constitution. 253.The 3rd defendant submits that there were no restrictions or encumbrances which inhibited the 1st and 2nd defendants from transferring the property to the deceased, or efforts made to challenge the invalidity of the suit documents by the date of the transfer, or currently from the issuers of those documents to date. Reliance is placed on Kibos Distillers Ltd & Others -vs- Benson Ambuti Adega & Others [2020] KECA 875 [KLR]. 254.On whether the claim of fraud and illegality has been established against the 1st and 2nd defendants in the acquisition of the suit property, the 3rd defendant submits that the plaintiff failed to substantiate the allegation contained in paragraphs 15 and 16 of the plaint and the deceased, through its witnesses. The 3rd defendant submits that from P. Exhibit Nos. (3), (4), and (5), the said documents do not show that the suit property was public land. 255.It is submitted that PW1 admitted that other than submitting the application for allocation of land, by the 1st and 2nd defendants, evidence of objection to the same by the various government departments involved in the process of allocation up to the time of issuance of a title deed, and the deceased is missing. 256.Equally, evidence of personal participation of the deceased in the allocation of the suit property to the 1st and 2nd defendants is lacking. The 3rd defendant submits that there is no evidence showing that the 1st and 2nd defendants and the deceased represented the suit property as unalienated public land, and if it were so, to whom. 257.The 3rd defendant submits that the plaintiff also failed to prove how the 1st and 2nd defendants and the deceased discreetly solicited for allocation, made payment, and procured registration of the suit property. 258.On the contrary, the 3rd defendant submits that from the documents tendered by the plaintiff, all the processes undertaken right from the issuance of the PDP, allotment letter, to the eventual registration in favour of the 1st and 2nd defendants and the deceased were open, public, and involved a string of personnel who gave their approval every step of the way. 259.The 3rd defendant submits that no evidence was tendered that the acceptance and payment as provided in the allotment letter were made outside the 30 days, or were cancelled for late payment; otherwise, the act of acceptance of the payment confirms compliance on time, since it was supposed to be done 30 days after the postmark as per Clause (2) of the letter of allotment. Nonetheless, the 3rd defendant submits that the plaintiff tendered no evidence as to when the letter of allotment was posted to the 1st and 2nd defendants, to ascertain when time began to run. 260.The 3rd defendant submits that throughout the process of allocation, none of the officers from where PW1, PW2, PW3 and PW4 works that is Land Administration Department, the office of the Director of Surveys, the Physical Planning Department, and the Land Office objected to the allocation of the subject land or the creation and registration of the subject land in favour of the 1st and 2nd defendants, and the deceased. 261.The 3rd defendant submits that, in any event, the documents by the lands office had identified the subject property as “unsurveyed residential plot”, yet the plaintiff has produced no rival documents to prove the allegation that the 1st and 2nd defendants and the deceased knew or alienated public property for private use and benefit to defeat public interest. Moreover, the 3rd defendant submits that no evidence was tendered that the 1st and 2nd defendants breached any terms and conditions in the allocation and registration process. 262.On the allegation that the deceased caused the transfer of the suit property to himself, which he knew was public land, the 3rd defendant submits that the allegation was not substantiated through evidence. The 3rd defendant further submits that at the time of the transfer, nothing was produced by the plaintiff that pointed to the suit property as public land, having been allocated to the 1st and 2nd defendants, and a lease was issued to them confirming that it was private property. 263.The 3rd defendant submits that even from the correspondence file produced as P. Exhibit No. (14), there was nothing to suggest that the property was public land and that the suspicious endorsement suggesting otherwise was only made by an unidentified person on 9/7/2024, which is three decades later, without any basis, and at the instigation of the plaintiff, as no such endorsement was noted or existed before 2022, when the alleged inquiries by the plaintiff arose. 264.Further, the 3rd defendant submits that there is nothing in evidence by the plaintiff to suggest that the Director of Land Administration ever recalled the lease or approvals issued to facilitate the registration in favour of the 1st and 2nd defendants and the deceased. 265.On the allegation that the letter of allotment was issued without an approved PDP, the 3rd defendant submits that, ironically, PW1 confirmed that, as per their records, the allotment letter had been accompanied by a document which he described as a sketch map, P. Exhibit No. (4), which was prepared by the Director of Physical Planning and which was used to prepare the allotment letter. 266.The 3rd defendant submits that the description of the document as a sketch map, though allegedly coined as such, was never explained by the plaintiff's witnesses as to its legal status, nor did the plaintiff bother to call the author of the same as a witness to shed more light on this critical issue. 267.The 3rd defendant submits that when PW6 was questioned whether he carried out any further investigation regarding the origin of the suit sketch map, he stated that he did not and only obtained it from the Land Administration Department and the Survey Department. 268.The 3rd defendant submits that the original of the document was not produced before the court to have the benefit of confirmation whether indeed it was a sketch map on a PDP, given that the copy produced in court seemed to have portions of it cut off, and PW1, who produced it, was unable to tell whether the said document was complete or not. 269.Further, the 3rd defendant urges the court to find that what is even more surprising is that the document described as a sketch map passed through three key departments without being flagged down as an alien document incapable of transferring any interest. The 3rd defendant urges the court to take note that PW1 said that even though his department had custody of the Development Plan, they never raised any objection to the allocation and that the entire process was procedurally and regularly completed, notwithstanding the alleged defect in the sketch map and the Development Plan until the RIM was amended, a lease was issued, and registration was effected. 270.The 3rd defendant submits that the entire process of allocation, alienation, issuance, and registration of title documents and their processing is an obligation reserved for the Physical Planning, Land Administration, and Survey Department, ruling out any alleged participation in any illegality, fraud, or irregularity by the 1st and 2nd defendants and the deceased, who had absolutely no role to play. 271.The 3rd defendant submits that parties are bound by their pleadings and that fraud and illegality must not only be pleaded but strictly proved. The 3rd defendant submits that the plaintiff did not prove how the deceased was involved in such fraud that led to the registration of the title under his name. Reliance is placed on Eldoret Express Ltd -vs- Tawai Ltd, National Land Commission (IP) [2019] eKLR, Wilson Musila Muema -vs- County Government of Machakos [2020] eKLR and EACC -vs- Kokita alias Halima (supra). 272.On whether the alienation and allocation of the suit property by the 4th defendant to the 1st and 2nd defendants were illegal, fraudulent, in breach of statuary and fiduciary duty and an abuse of the powers as the then Commissioner of Lands, the 3rd defendant submit that under Section 3(1) of the Government Land Act, repealed, the Commissioner of Lands had delegated powers, which were not limited to allocate land. 273.On whether the plaintiff’s cause of action can be sustained against the 3rd defendant, it is submitted that the cause of action is being brought 30 years after the 1st and 2nd defendants and the deceased acquired the land; otherwise, going by P. Exhibit No. (23), regarding fraud as early as 2020, the plaintiff was aware of the registration but failed to institute the suit until 2025, outside the 3-year period; hence, the provision of Section 42 of the Limitation of Actions Act, Cap 22, does not apply, but Section 4 thereof. 274.The 3rd defendant submits that the deceased became the registered owner of the suit property way back in 1996, yet the plaintiff, or the undisclosed complainant, did not see fit to challenge the title, and instead waited conveniently until the deceased passed on. 275.It is submitted that the claimed fraud is in personam and cannot be made or sustained against the 3rd defendant. Nevertheless, the 3rd defendant submits that evidence has not been tendered that the deceased engaged in any acts of fraud to warrant revocation of his title deed, or was not a bona fide purchaser for value without notice of any defect in the title deed held then by the 1st and 2nd defendants. Reliance is placed on Zebak Ltd -vs- Nadem Enterprises Ltd [2016] eKLR. 276.On whether the plaintiff is entitled to the reliefs sought, the 3rd defendant submits that no evidence was tendered to substantiate that the suit property was part of the open space to be entitled to prayers (a), (b), (c), and (d). Further, it is submitted that given that the deceased is the undisputed registered owner of the suit property, prayers (e) and (f) are untenable. 277.Regarding prayer (g), it is submitted that mesne profits under Section (2) of the Civil Procedure Act were not pleaded or proved, and that the valuation report does not amount to proof of the same; otherwise, the plaintiff has no interest in the suit property to be entitled to such a relief. Reliance is placed on Stephen Makau Kanyia -vs- Wilson Njeru Wega & Others [2021] eKLR. 278.On prayer (b), the 3rd defendant submits that the registration of the suit property in favour of the 1st and 2nd defendants and the deceased was done by government officers whom the plaintiff deliberately chose not to sue, to invite their evidence as to the registration. It is submitted that the government instead benefited from the payments to facilitate the issuance and registration of the title documents, including land rates and rent, of which the documents issued were genuine. The 3rd defendant submits that the alleged loss of user or evidence to support the claim of general damages was not tendered. 279.The 4th defendant relies on written submissions on 19/6/2026, isolating only one issue for determination, namely, whether the 4th defendant acted fraudulently, ultra vires, and in abuse of office. 280.The 4th defendant submits that fraud must be specifically pleaded and proved with precision and specificity. Reliance is placed on Arthi Highway Developers Ltd -vs- West End Butchery Ltd & Others [2015] eKLR and Vijay Morjaria -vs- Nansingh Madhusingh Darbar & Another [2000] eKLR. 281.The 4th defendant submits that the plaintiff has failed to discharge the burden set in Section 107(1) of the Evidence Act, other than making broad, sweeping allegations against the 4th defendant, without specifying a single act of fraud, or decision attributable to him, more so when, from the evidence tendered, what was done was by many other offices and departments involved in the allocation process. 282.Further, the 4th defendant submits that his defence is that the process of allocating government land was multi-departmental and a multi-office exercise in which the office of the Commissioner of Lands was but one actor, and critically a downstream actor reliant upon inputs from others, as confirmed in the evidence of PW1, PW2, PW3, PW4, and PW5, and therefore he could not be held liable for the non-preparation of a PDP or for any acts of omission and commission in the allocation process attributable to other persons or bodies. 283.The 4th defendant, in particular, submitted that the lead investigator confirmed that the office he held previously did not and could not act in isolation, for it relied on the inputs, recommendations, and actions of other offices before exercising its mandate. 284.Therefore, the 4th defendant urges the court to find that the impugned transaction was not the sole product of individual volition, and therefore any identified irregularities, including the absence of a PDP, absence of a ground status report, and alienation of alleged reserved land. 285.The 4th defendant submits that in the absence of an advisory from the Department of Physical Planning that the suit property was reserved for public use and unavailable for alienation, he could not reasonably have been expected to know otherwise. Reliance is placed on Ethics & Anti-Corruption Commission -vs- Cherogoe & Others [2024] KEELC 1488. 286.Further, the 4th defendant submits that he was a downstream signatory who acted based on what was presented to him by other officers and not the architect of the alleged fraud. The 4th defendant submits that the plaintiffs have also failed to tender evidence that he derived some benefits or acted for personal gain, financially or otherwise, in the allocation process to the 1st, 2nd, and 3rd defendants, which is a fundamental element of any claim of fraud and abuse of office. 287.The 4th defendant submits that no financial records, correspondence, or communication were produced linking the 4th defendant to any personal gain arising from the transaction, especially from the lead investigator. 288.The 4th defendant submits that fraud, as held in Wanyororo Farmers Co. Ltd -vs- Nakuru Kiamunyeki Co. Ltd [2017] eKLR, is a matter of evidence. It is submitted that the 4th defendant's involvement as a public officer while discharging statutory duties, whose outcome allegedly turned out to be irregular, does not, without more, establish that he acted fraudulently for personal gain. 289.The 4th defendant submits that he served in the office of the Commissioner of Lands for more than three decades, and therefore, he could not be expected to produce documents relating to the transaction. 290.The 4th defendant submits that the failure to join the National Land Commission in the suit, which succeeded his office and is the current custodian of all administrative records, is telling. The 4th defendant submits that the National Land Commission was the appropriate party to produce the full transaction file for the suit property, including the directives and correspondence emanating from his former office, to enable the court to examine the full picture. 291.Further, the 4th defendant submits that the plaintiff denied the court that opportunity and therefore invites the invocation of the doctrine of adverse inference that such evidence, if produced, would be adverse to such a party as held in Kenya Akiba Micro Financing Ltd -vs- Ezekiel Chebii & Others HCCC No. 644 of 2005. 292.The 4th defendant submits that, as per the repealed Government Land Act, he acted within the statutory framework set out therein to discharge his powers as per Gazette No. 14 of 1965, and in the absence of proof of personal fraud or gain, he is entitled to the protection afforded to a public officer acting within the confines of their statutory mandate. 293.In this case, the 4th defendant submits that his role was that of an approving authority acting on the recommendations of schedule officers, physical planners, valuers, surveyors, and land administrators, by appending his signature to the documentation presented to him after the completion of the processes assigned to other departments. 294.The 4th defendant submits that in his capacity, he was not tasked with and could not be expected to personally undertake the verification of the ground conditions, the physical planning status of every parcel, or the accuracy of every survey. 295.The 4th defendant submits that, in the circumstances, to individually single him out for personal liability, in a transaction involving numerous government departments and officers, none of whom are similarly arraigned, amounts to the kind of targeted prosecution that this court should decline to sanction without legal justification, as with any other citizen. 296.The 4th defendant submits that he has pleaded immunity for the acts which he says he performed in his official and statutory capacity, given that the former Constitution was silent, unlike the current Constitution, on accountability in the public service and that it did not provide for natural values of leadership and integrity. 297.The court has carefully looked at the pleadings, evidence tendered by the parties, written submissions, and the law. The issues calling for my determination are: 1.If the court has jurisdiction to entertain the claim. 2.If the plaintiff has proved that the suit property was initially reserved as public land as an open space. 3.If the plaintiff has proved that the suit property was illegally, irregularly, and fraudulently allocated and registered in favour of the 1st and 2nd defendants, and later illegally transferred to the deceased. 4.If the deceased was a party to the alleged irregular and illegal allocation of the title to the suit property in favour of the 1st and 2nd defendants by the 4th defendant. 5.If the 1st and 2nd defendants had a valid title capable of being transferred to the deceased. 6.If the deceased was a bona fide purchaser for value without notice of any defect in the title held by the 1st and 2nd defendants. 7.If the plaintiff has pleaded and provided any fraud, illegality, irregularity, abuse of office, and breach of fiduciary trust against the 1st and 2nd defendants, the deceased, and the 4th defendant. 8.If the plaintiff has proved entitlement to the reliefs sought 9.What is the order as to costs? 298.The plaintiff has submitted that this court has jurisdiction to hear and determine the suit seeking to recover public land despite the alienation having occurred in 1994, for such a claim is exempted from time frames under the provisions of the Limitation of Actions Act, Cap 22, Laws of Kenya. Jurisdiction is everything. Without it, a court cannot move a step further. 299.A defence that a suit is time-barred goes to the jurisdiction of the court to entertain the suit. The primary objective of the statute of limitations is to prevent the indefinite threat of litigation and to encourage prompt resolution of disputes. 300.The Limitation of Actions Act prevents fishing out claims where evidence may have deteriorated, by witnesses dying or their memories fading away. It also protects parties from the anxiety of facing stale claims. See Alba Petroleum Ltd -vs- Total Marketing Kenya Ltd [2019] eKLR. 301.The 3rd defendant has pleaded that the plaintiff has brought the suit almost 30 years after the suit property was alienated and close to 2 years after his father passed away. 302.Further, the 3rd defendant, in his evidence and written submissions, has termed the plaintiff's inordinate delay in enforcing its rights as unfair; otherwise, equity aids the vigilant and not the indolent. 303.The Limitation of Actions Act serves as a jurisdictional bar by prescribing a time frame within which various legal claims must be filed. The effect thereof on jurisdiction is to render the court incompetent to hear an action otherwise properly brought before it. The plaintiff, regarding the statute of limitations, urges the court to find it has jurisdiction by dint of Sections 41 and 42 of the Limitation of Actions Act to entertain and determine the suit. 304.In Dickson Ngigi Ngugi -vs- Commissioner of Lands & 64 others (SC Petition No. 9 of 2019) Judgment (31st March 2023), the court held that conferment of jurisdiction is a legislative function and can only be conferred by the Constitution or statute; otherwise, parties cannot by consent confer powers on a court devoid of such powers. The court held that to ascertain whether or not the jurisdiction has been properly invoked, the court looks at the nature of the pleadings. 305.In Ethics and Anti-Corruption Commission -vs- Tum (Administrator of the Estate of Nathaniel Kipkorir Tum) & another; Board of Management Kitale School Primary & another (Interested Parties) [2025] KEELC 3056 (KLR) the court cited Justus Tureti Obara -vs- Peter Koipeitai Nengisoi [2014] eKLR that Section 26(a) of Cap 22 provides that time does not start to run until the fraud has been discovered or could with reasonable diligence have been discovered and that ascertaining the discovery is a matter of fact to be established at the hearing. 306.In Ethics & Anti-Corruption Commission -vs- Wanjiku & 3 Others [2021] KEELC 4074 (KLR) 1, the court observed that under Section 11(j) of the Ethics and Anti-Corruption Commission Act, the Ethics and Anti-Corruption Commission has the mandate to institute court proceedings to protect or recover public property. Article 79 of the Constitution mandates Parliament to enact legislation to create the Commission. 307.Further, under Section 56 of the Act, the plaintiff can apply for a preservation order. Section 42 of the Limitation of Actions Act was also amended by Act No.7 of 2007, to introduce Sections 1 (k) and (2), which provide that the Act does not apply to an action in which recovery or compensation in respect of loss or damage to any public property is sought. 308.In Kenya Anti-Corruption Commission -vs- J.S.K. (Cargo) Limited & Another [2009] KEHC 765 (KLR), the court affirmed that Section 7 of the Limitation of Actions Act does not apply to a suit for recovery of public land. 309.Similarly, in Kenya Anti-Corruption Commission -vs- Sammy Silas Komen Mwaita & Another [2013] KEHC 4565 (KLR), the court held that the Commission had locus standi to bring recovery proceedings on behalf of the public. 310.In Ethics and Anti-Corruption Commission -vs- Kenya Broadcasting Corporation & 3 Others [2025] KECA 873 (KLR), the court observed that due to the statutory power of the Commission under Section 11(1)(d) of the Ethics and Anti-Corruption Commission Act, it cannot be termed a busybody or a body of peripheral interest. 311.Applying the foregoing case law, I am persuaded that this court's jurisdiction is properly invoked. This is because the plaintiff has pleaded and testified that when it became aware of the alleged irregularities, illegalities, or fraud in the alienation of the suit property. The defendants have not tendered evidence of earlier knowledge or discovery before 2022. Furthermore, the law as cited above exempts the plaintiff from time limitations in pursuing a claim to recover public land. 312.The next question is whether the plaintiff has disclosed a known cause of action against the defendants. In Karl Wehner Claasen -vs- Commissioner of Lands & Another [2019] eKLR, a cause of action was defined as a combination of facts that entitle a party to obtain relief from another party. 313.A cause of action refers to any fact or series of facts that is complete in itself to found a claim or relief. See D.T. Dobie (K) Ltd -vs- Muchina & Another [1982] eKLR. In Oshoboja -vs- Amuda & Others [1992] 7 SCNJ. (Pt. II) 317 as cited in Isaiah Ondiba Bitange & 3 others -vs- Institute of Engineers of Kenya another [2017] KEHC 7565, a reasonable cause of action was defined as one with some chance of success. 314.Ordinarily, it is through pleadings that a cause of action is disclosed. The purpose of pleadings is to enable the defendant to know the case he has to meet so that he can prepare his defence, with the result that the issues would be sufficiently defined to facilitate the appropriate questions, so that the dispute can be resolved. Accrual of a cause of action is when it commences or becomes a present enforceable demand or right. See Nganga -vs- Gachiri [2025] KECA 1415 [KLR]. 315.Pleadings contain the particulars of allegations that help the court to narrow the issues or reveal more clearly what case each party is making. Pleadings help or act as a measure for comparing the evidence of a party with whom he has pleaded and determining the range of admissible evidence that the parties should be prepared to adduce at the trial. 316.In Attorney General & Another -vs- Andrew Maina Githinji & Another [2016] eKLR, the court cited Pearson J in Drummond Jackson -vs- British Medical Association [1970] WLR 688 at page 616 that every fact which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment is what a cause of action is, as cited in Read -vs- Brown [1889] 22 QBD 128 by Lord Esther MR. Similarly, the court cited the words of Lord Diplock in Letang -vs- Cooper [1964] 2 ALL ER 929, that a cause of action is simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. 317.In this suit, the plaintiff, while invoking its constitutional and statutory mandate, pleads that it conducted an inquiry into an allegation of an illegal alienation and allocation of public land, initially alienated and reserved as an open space for the exclusive and private benefit of the 1st and 2nd defendants, later transferred and registered in the name of the deceased to the detriment of the intended and subsisting public interest. 318.The plaintiff pleads that the reservation as an open space followed the preparation, drawing, and revision of the Development Plan for Kitale Municipality on or about 1973. At this time, the suit property formed part of the larger Kitale School, which, according to the records held by the Department of Urban and Rural Physical Planning, measured approximately 55 Ha. This is what the plaintiff pleaded in paragraphs 5, 6, and 7 of the plaint dated 4/3/2025. 319.Additionally, the plaintiff in paragraphs 8, 9, 10, and 11 thereof pleads that for proper planning and utilisation, an area measuring 2.44 Ha was excised from the 55 Ha Kitale School land and was reserved and designated as an open space vide the Approved Development Plan Reference No. 10/72/7 dated 17/1/1974. 320.The plaintiff pleads that the School, however, continued to utilise the entire open space for agricultural purposes, and that on or about 9/2/1994, the 1st and 2nd defendants, acting in concert with the deceased, fraudulently and illegally solicited for alienation and allocation of a portion of the open space to themselves, leading to the issuance of a letter of allotment dated 7/1/1994 for the suit property. The plaintiff pleaded and testified that the allocation was done without a ground status report or an approved PDP, and instead, what was used was survey plan F/R No. 272/111 to alienate and subdivide the title deed to the suit property, under the instruction of the 4th defendant, despite its earlier status. 321.The plaintiff pleads that the 4th defendant, contrary to his statutory duties and in abuse of office or breach of fiduciary duties, caused a lease to be issued to the 1st and 2nd defendants on 17/7/1995, who immediately thereafter transferred the suit property to the deceased by a transfer registered on 17/7/1995. 322.In their defence, the 3rd and 4th defendants have traversed the pleaded facts by the plaintiff in their respective statements of defence and put the plaintiff to strict proof. In particular, the 3rd and 4th defendants vehemently deny that there was any alleged surrender or reservation of the suit land as part of an open space as alleged or at all; otherwise, the custodian of land records had, at the very inception of the allocation, confirmed its status as unalienated vacant government land. 323.The burden of proof under Sections 107 to 113 of the Evidence Act is on he who alleges the existence of certain facts to be entitled to a right or liability in a court of law. In this suit, the burden was on the plaintiff to establish through credible and reliable evidence the existence of the set of facts forming its cause of action as pleaded above that the suit property was initially reserved public land and that its alienation for private use was and remains a nullity in law. 324.It is trite that when there are two competing claims on one piece of land, it is not enough for a claimant to waive the instrument of title. Each of the competing parties has to go behind the instrument of title to prove that the title was acquired regularly, formally, procedurally, and legally, with no break in the chain of acquisition. See Munyu Maina -vs- Hiram Gathiha Maina [2013] KECA 94 [KLR]. 325.To succeed in this suit and as a starting point, the plaintiff has to establish the status of the suit property before 1974, the process of its conversion, the alleged surrender, hiving off, reservation, and its consummation in law. The historical background of the suit property, therefore, remained for the plaintiff to lay. 326.The plaintiff pleaded that the initial owner of 55 Ha was Kitale School, of which the suit property formed part. It is the plaintiff in paragraph 7 of the plaint who pleaded that some of the records held by the Department of Urban Rural Physical Planning show that the Kitale School land was 55 Ha. These records, apart from P. Exhibit No. (1) were never availed before the court to sustain the plaintiff’s contention on the status of the larger parcel as of 1973. Excision of land is a term of art. Similarly, the reservation and designation of what was to become and indeed became an open space, from the 2.44 Ha allegedly surrendered by the Kitale School, was upon the plaintiff to prove. 327.Unalienated land, as per Section 2 of the Government Land Act (repealed), refers to government land which was not, for the time being, leased to any other person, or in respect of which the Commissioner of Lands has not issued any letter of allotment. 328.Government land meant land held by the government ministries, departments, statutory bodies, and agencies, and land that had not been registered. 329.Section 3 of the Physical Planning Act (repealed) defined unalienated government land to mean land which, as at the effective date, was unalienated government land as defined by an Act of Parliament. 330.The plaintiff has blamed the 4th defendant for overstepping his mandate to alienate reserved land for private use. In Kiluwa Ltd & Another -vs- Business Liaison & 3 Others [2020] KESC 37 [KLR], the court observed that the Commissioner of Lands could only lawfully allocate unalienated government land. The court said that public land reserved for specific purposes, such as hospitals, schools, or forests, was not unalienated land and could not be allocated to private individuals. 331.Similarly, in Saghani Investments Ltd -vs- The Officer in Charge, Nairobi Remand & Allocation Prison [2012] HC Misc. Appl. No. 99 of 2006, the court held that land reserved for a prison could not be allocated for private residential or commercial use. 332.Equally, in Mungania & 3 Others -vs- County Government of Meru & 6 Others [2025] KEELC 3279 [KLR], the court held that once land is gazetted for a specific purpose or use, it is reserved for that purpose only and, therefore, is not available for general, private, or alternative use. 333.In Board of Trustees of NSSF -vs- Keiyo Teachers Co-operative Sacco Society & Others, Civil Appeal No. E076 of 2020 [2026] KECA 327 [KLR], the court held that gazetted land can only be alienated after it is properly degazetted, which process involves consultation with competent authorities, public notice of the intention to degazette, Environmental Impact Assessment (EIA), cabinet approval, parliament approval, and finally degazettement. 334.In this suit, the fulcrum of the plaintiff's cause of action rested on the establishment of the root of title or claim that the suit property was and remains public land, unavailable for re-allocation and alienation for private use, and that, in doing so, the defendants sought and continue to defeat the public purpose for which the suit property was intended for use as an open space. 335.It is trite law that issues for determination in a suit generally flow from the pleadings, and the trial court may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court, as held in Galaxy Plaint Co. Ltd -vs- Falcon Guards Ltd [2002] 2 EA 385, and in Odd Jobs -vs- Mubia [1970] EA 476. 336.In an adversarial system, it is the parties to the litigation who set the agenda and, subject to the rules of pleadings, formulate their case in their own way, as held in David Sironga Ole Tukai -vs- Francis Arap Muge & 2 Others [2014] eKLR. 337.Guided by the foregoing caselaw, it is the plaintiff who pleaded that the suit property was already alienated public land as of 1974. From the record of this case, the only historical basis or evidence tendered by the plaintiff is the P. Exhibits No. (1) and (2). 338.From the said exhibits, the plaintiff must discharge the burden of proof that such reservation or alienation took priority and superseded any other alienation of the land for private use in favour of the 1st, 2nd and 3rd defendants, as held in Wreck Motors Enterprises -vs- Commissioner of Lands [1997] KECA 284 [KLR], and in Faraj Maharus -vs- J.B. Martin Glass Industries & 3 others [2005] KECA 303 (KLR). 339.The plaintiff has pleaded that the title deed held by the deceased is a nullity, for it was the product of a process tainted with procedural irregularity, fraud, illegality, abuse of office, and breach of trust. 340.In Kemboi -vs- Macharia & Others [2025] KECA 1665 [KLR], the court held that a certificate of title cannot cure an unlawful allocation process, since it is an end product of a process. 341.Fraud, illegality, and irregularity, as pleaded by the plaintiff, must be specifically pleaded and specifically proved on a balance higher than in ordinary suits. The three elements cannot be inferred from the facts by the court, as held in Vijay Morjaria -vs- Nansingh Madhusingh Darbar & Another [2000] eKLR. 342.This is a case of two conflicting claims, where on one hand the plaintiff alleges reservation of public land as an open space, while on the other hand, the defendants allege that it was vacant unalienated government land which the 4th defendant, as the then Commissioner of Lands had powers to alienate and that they followed all the processes leading to issuance of a valid title deed which the plaintiff has not impeached in law. 343.In General, & Another -vs- Hussein & Others Civil Appeal No. 100 Eldoret No. 32 of 2018 [2025] KECA 1022 [KLR] (5th June 2025) (Judgement), the court held that when faced with conflicting claims on one disputed piece of land, the court scrutinizes the root of the title and follows all the processes and procedures that brought forth the two titles at hand. 344.In Presbyterian Foundation -vs- Kibera Siranga SHG Nursery School [2025] eKLR and General & Another -vs- Hussein (supra), the court held that the elements of a good title include:a.It must deal with or show the origin of the ownership of the whole legal and equitable interest in question.b.It must contain a recognisable description of the property.(c)It must not contain anything that casts any doubt on the title. 345.Guided by the foregoing caselaw, the court has to conduct an investigation and determine which of the two titles or versions by the parties herein should be upheld, starting with the root of the title, its foundation, and how it was passed to the current holder. 346.The plaintiff pleads that the primary documents confirming the reservation are P. Exhibits No. (1) and (2). The law of evidence provides that a Kenya Gazette be taken as prima facie evidence. It is PW3 who stated that an Approved Development Plan must be gazetted to be effective in law. The plaintiff would have adduced evidence on when the Development Plan, produced as P. Exhibit No. (2) was approved and gazetted by the minister. 347.The court is urged through the plaintiff’s written submissions not to be stringent or rigid in its appreciation of the facts and the evidence tendered. Indeed, it is submitted that the court should not make an absurd or unreasonable decision that may have profound implications by declaring the Development Plan invalid, as third parties, interested parties, and other persons have acted upon it. 348.The plaintiff did not plead those facts or testify through six witnesses based on a witness statement containing those facts or assertions now being introduced through submissions. Written submissions cannot replace pleadings or amount to evidence as held in D.T. Moi -vs- Mwangi Stephen Muriithi & Another [2014] eKLR. 349.The plaintiff urges the court that it has discharged the burden that there was a legal surrender and reservation in the 1st instance, making the allocation illegal, null, and void. Surrender or reservation is not the same as physical surrender or reservation of land, as submitted by the plaintiff. Section 97(1) of the Evidence Act provides that in any property dispute, where there is a document, it shall be taken as proof of such a grant or document without any parole or extrinsic evidence. 350.In Kositany -vs- Chania Logistics Ltd [2024] KECA 151 [KLR], the issue was competing title deeds held by different individuals over the same parcel of land. The court held that where a party fraudulently causes a title to be issued to him, that does not make him the owner of the property, without producing documents showing that the process and procedures of acquisition were formal, legal, and procedural. 351.Land, as held in Said -vs- Shume & Others [2024] KECA 866 [KLR], is not like vegetables, but a valuable item, and buyers are expected to conduct a thorough investigation of both the owner and the property before purchase. The same reasoning applies to courts. In this case, the court is asked to find that the title to the suit property has no foundation in law. 352.From the evidence tendered, the title held by the deceased was as a result of processes and procedures sanctioned from the very inception of allocation, alienation, transfer, and registration, through the offices where the plaintiff’s witnesses, namely, PW1, PW2, PW3, PW4, and PW5, work. 353.Given the doctrine of presumption of regularity of acts of public officers, such evidence to discount the paper trial from the same offices must be through credible and tangible evidence. From the evidence tendered, none of those officers or offices raised red flags, sought the recall, cancellation, review, or withdrawal of the approval and the accompanying documents they issued to facilitate the process and its end product, between 1994 and 2020, when the plaintiff commenced its investigation, let alone during the allocation. PW1 relies on an alleged endorsement by an unnamed person on P. Exhibit No. (15) that the land was already reserved as an open space. The maker of that endorsement was not called to testify before this court. 354.After 2010, Section 12 of the Land Act governs the allocation of public land. Section 12(8) thereof provides that public land shall not be allocated unless it has been planned, surveyed, and reserved. Section 15 thereof relates to the reservation of land for the use set out by the National Land Commission. 355.Article 66(1) of the Constitution provides that the state may regulate the use of any land or interest in the public interest or for land use planning. 356.As rightly submitted by the plaintiff, it is a fact, as established in the Commission of Inquiry into the Illegal and Irregular Allocation of Public Land, popularly known as the Ndungu Report, and also in the Akiwumi Commission Report, that most public land in use by state organs and public bodies is not registered. Other than the Senate report, there is no evidence that the suit land featured in the referenced reports. 357.It is also trite that planning comes first, followed by surveying, as held in Dina Management Ltd -vs- County Government of Mombasa & Others (supra), citing with approval African Line Transport Co. Ltd -vs- Attorney General [2007] eKLR. It is also a fact that the principle of trust required the Commissioner of Lands not to use land for any purpose other than one that could benefit the public. In this suit, the plaintiff pleads that the suit premises, through a development plan, were planned as an open space in 1974 with the signature of the Commissioner of Lands, who became its trustee. 358.In Mugenyu -vs- County Government of Nyeri & Others [2025] KECA 593 [KLR], the court emphasised that as a trustee of the public, the Commissioner of Lands could not use the presidential powers delegated to him to alienate unalienated land for use other than for the public good. It is trite law that any action taken without authorisation is a nullity ab initio, as was held in Henry Muthee Kathurima -vs- Commissioner of Lands & Others [2015] eKLR. 359.In Republic -vs- Minister for Transport & Communication & Others Ex parte Waa Ship Garbage Collectors & Others [2006] 1KLR E&L 563, the court observed that the doctrine of public trust is recognised and provided for by the superior law of the land. Additionally, in Kenya Anti-Corruption Commission -vs- Lima Ltd & Others [2019] eKLR, the court held that public land should not be alienated in a manner that denies the public their right to use the same. 360.From the cited case law, impending access to or public use of reserved land therefore undermines the social contract between the state and the citizen, which is an essential service to good governance and the rule of law, under Articles 40 and 65 of the Constitution, as held in Republic -vs- Ministry of Lands & Others [2015] eKLR. 361.The plaintiff goes on to say that due to the reservation of the 1st, 2nd, and more so the 3rd defendant cannot invoke the doctrine of innocent purchaser for value without notice. In Sehmi & another -vs- Tarabana Company Ltd & 5 others [2025] KESC 21 (KLR), the element of innocence means that the purchaser acted in good faith, had no notice or knowledge as to the existence of a rival interest, paid consideration in money or money's worth, and there was a legal estate in the land. The court also emphasised that the doctrine of innocent purchaser for value without notice did not protect a purchaser of an illegally or irregularly allocated title to public land. 362.In Municipal Council of Kisumu -vs- Teleposta Pension Scheme Registered Trustees & Others [2025] KECA 619 [KLR], the court observed that a party laying claim to a right must table evidence against a defendant in support of their case that meets the required standard of proof on a balance of probabilities in civil matters, failure of which the case cannot stand. 363.In this suit, the plaintiff levels fraud, illegality, irrelevance, collusion, breach of trust, and abuse of office in the alienation process. Fraud consists of deceitful practice or willful device, resorted to with the intention to deprive another of his right or, in some manner, do him injury. 364.In Black’s Law Dictionary, 19th Edition, it is defined as consisting of a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. 365.In Fanikiwa Limited & 3 others -vs- Sirikwa Squatters Group & 17 others [2023] KESC 105 (KLR), Odhiambo -vs- Wanyanga & Another [2025] KECA 1621 [KLR], Eldoret Express Ltd -vs- Tawai Ltd & Another [2019] eKLR, Patel -vs- Lalji Makanji [1957] eKLR, and Kinyanjui Kamau -vs- George Kamau [2015] eKLR, the court held that fraud must be specifically pleaded and proved and the burden is on he who asserts to prove the existence of certain facts, on a burden higher to show the wickedness of the mind. 366.In this suit, the burden was on the plaintiff to show the wickedness of the mind of the 4th defendant, who knew or misrepresented the facts in connivance with the 1st and 2nd defendants that the suit property was available for alienation when, in fact and in law, it was not. The plaintiff had the duty to lay bare documentation to prove the fact that there was a surrender of 2.44 Ha for public use, the request for surrender as per P. Exhibit No. (1) was legally accepted, perfected, and established, both on paper and on the ground. 367.It was upon the plaintiff to call evidence from the Kitale School, the Land Surveyor, the Roads Engineer, the County Secretary, the Town Planner, and the Director of Urban and Physical Planning, who, it pleaded, had all the records to avail documentary evidence on any instruments of surrender and reservation. 368.As held in Kemboi -vs- Macharia (supra), a certificate of title cannot cure an unlawful process. It was upon the plaintiff to adduce evidence that Kitale School accepted the surrender request, approved, and perfected in law through an instrument of surrender, reservation, and acceptance, such that any other dealings with such surrendered and reserved land, in 1994, gave no right or interest to the 1st and 2nd defendants. 369.Further, it was upon the plaintiff to prove that since no right or interest can flow from nothing, the 1st and 2nd defendants could not pass a nullity to the deceased. Similarly, it was upon the plaintiff to lay bare before the court that there were red flags both on paper and on the ground, which, had the deceased conducted proper and due diligence, he could have noted the warnings that the buyer should beware of what he was purchasing, as a nullity. 370.There was no evidence tendered that after the reservation in 1974, the local authority, and this case the defunct Municipal Council of Kitale, and members of public as the end user of the open space were formally or informally notified and made use of the open space, by way of occupation or possession, such that the deceased could be said to have feigned ignorance or assumed the risk to be entitled to invoke the doctrine of innocence on allottee or purchaser or registered owner as held in Torino Enterprises Ltd -vs- Attorney General (supra) and in Sehmi & another -vs- Tarabana Company Ltd (supra). 371.In Ongera & Others -vs- Mwakwae [2025] KECA 535 [KLR], the court observed that as long as a transaction is not perceived by the court to have been carried out in good faith, there will always be considerable doubt that such a title deed can be protected, especially where the holder thereof does nothing to disabuse the court of the suspicion that it was illegally obtained. The court cited Lawrence -vs- Lord Norreys (1880) 15 App. Cas. 210 at 221, that general allegations, however strong the words may be in what is stated, are insufficient to constitute an averment of fraud of which any court ought to take notice. 372.The plaintiff has urged the court to find that its documentary evidence was produced without objection by the defendants and stands undisputed. In Mwige -vs- Kiguta & Others Civil Appeal No. 140 of 2008 [2015] KECA 334 [KLR], the court held that their admission of documents in evidence does not amount to their proof and that a document becomes proved, unproved or disproved, when the court applies its mind to determine the relevance and veracity of the contents, alongside all other facts and evidence on record. 373.The court said that a witness must produce the document and lay the foundation for its authenticity and relevance to the facts of the case. 374.As a trial court, both oral and documentary evidence from all the relevant public offices are key. Parties must also, in a trial, be diligent in calling for and examining evidence to help foster their claims. 375.In this suit, the plaintiff must answer what the legal status of the land was as of 1973 and where the documents that it pleaded were held by the Director. At what stage and through what legal process were the surrender and reservation done? When, if at all, and through which legal process was the excision of 2.44 Ha from the 55 Ha subdivided, surrendered to the government, or effected? 376.The plaintiff relies on P. Exhibit Nos. (1) and (2). P. Exhibit No. (1) is not certified. None of the addressees of the letter was called to testify. Even if the maker was not available to testify, at the very least, the plaintiff should have called the successor to the defunct municipal council of Kitale, the Headteacher, Kitale Primary School, and a representative of the Ministry of Education, Kitale, to shed light on the history of the 55 Ha of land and confirm whether or not 2.44 Ha was excised from the land in 1974. 377.Exhibit No. (2), according to PW3, was made and was governed by the applicable law at the time, the Development and Use of Land (Planning Regulations) 1961, made under the Land Planning Act, Cap 303 Laws of Kenya. 378.A Plan had to be prepared in accordance with Part III of the Regulations. It defined unalienated government land as government land in respect of which no title has been issued or a letter of allotment has been accepted. It was the Minister under Rules (6), (7), (8), and (9) of the Regulations who could approve the Plan. After the approval, the local authority had an obligation to take steps to notify the affected landowners of the Plan and its contents. Any surrender or subdivision of the land within the Plan had to be done through the prescribed procedure under Rules (10), (11), (12), (13), (14), (15), and (16) of the Regulations. 379.Any change of user or subdivision of agricultural land under Rule (14) of the Regulations had to be made to the Commissioner of Lands and to such other authorities, or the Minister, so that the recommendation of such authorities and the divisional board may be obtained. 380.Rule 24 of the Regulations gave powers to the Registrar under the repealed Government Land Act to act in relation to land to which Part II of the Land Titles Act applied. 381.Under the Physical Planning Act, Cap 286, Part IV, related to a Physical Development Plan and Local Physical Development Plan. The Second Schedule relates to long-term, short-term, renewal, and redevelopment plans. The purpose of a Development Plan was to improve the land and provide for the proper physical development as set out in Section 16 thereof. Its content is set out in Sections 17 and 18 thereof. Publication of the same through a Gazette Notice is provided for under Section 19. 382.Approval under Section 20 thereof is by the Minister. After approval, the Minister had to publish it for it to take effect. Amendments to the same were governed by Section 22 of the Act. Local Physical Development Plan for a municipality is governed by Sections 23, 24, 25, 26, 27, and 28 of the Act. It had to be approved and published by the Minister to take legal effect. 383.Section 53 of the Act repealed the Town Planning Act and the Land Planning Act. It is the plaintiff’s own witnesses who referred the court to this role. The decision of the Director of Physical Planning under Sections 24 to 27 of the Physical Planning Act had to be approved by the Minister. The office of the Director of Physical Planning was created by Section 4 of the Physical Planning Act. Its functions were set out in Section 5 of the Act. 384.The duties of the director of physical planning included advising the Commissioner of Lands and local authorities on the most appropriate use of land, including land management such as change of user, extension of user, extension of leases, subdivision, and amalgamation of land. 385.Under Section 24, the Director could prepare a Local Physical Development Plan, which may be long-term, short-term, or for a renewal or redevelopment plan of the land in issue. Section 69 of the Interpretation and General Provisions Act, Cap (2) speaks to the production of a copy of a Gazette Notice containing a written notice or law, as prima facie evidence in all courts. 386.The best evidence rule applies in this case. The plaintiff takes the view that the exhibits it has produced generally and in particular the P. Exhibits No. (1) and (2) were produced by consent and without the objection of the defendants. 387.Section 67 of the Evidence Act provides that documents must be provided by primary evidence except in cases set out in Section 68 of the Act, where secondary evidence may be given. 388.Primary evidence is defined by Section 65 of the Evidence Act as the document itself produced for the inspection of the court. Secondary evidence under Section 66 of the Act refers to certified copies and copies made from the original. A party relying on secondary evidence under Section 68 of the Evidence Act has to lay a basis that the exhibit is a public document under Section 79. 389.The custodian of a public document can certify copies of the public document under Section 81 thereof. The court, under Section 83 of the Evidence Act, can presume to be genuine every document purporting to be a certified copy, if it is declared by law to be admissible as evidence of a particular fact, substantially in the form, and purporting to be executed in the manner directed by law in that behalf and purporting to be duly certified by a public officer. 390.Section 85 of the Evidence Act provides that the production of a copy of the Gazette containing any notice purporting to be made in pursuance of a written law shall be prima facie evidence. 391.Regarding maps and plans, the court, under Section 89 of the Evidence Act, can presume that maps and plans purporting to be made or published by the authority of the government or any of the departments were so made or published and are accurate. Section 89(B), therefore, says that maps and plans specially made for any cause or other proceedings, civil or criminal, must be proved to be accurate. 392.Further, Section 39 thereof provides that statements and representations of such in issue or relevant facts made in published maps or charts generally offered in public sale, or in maps or plans made under the authority of any government of the Commonwealth as to matters usually stated or represented in such maps, charts, or plans are themselves admissible. 393.Admissibility of documents in evidence as to the facts in issue is governed by Section 35 of the Evidence Act. Statements made by a person in a document that lead to the establishment of that fact are made through the original document. The power of the court to draw inferences where the original document is not adduced or its maker is not called, and the weight to be attached to the statement as admissible and inferences to be drawn as to the accuracy or otherwise of the statement concerning the occurrence or existence of the facts stated, its corroboration, on regulating the manner in which uncorroborated evidence is to be treated is governed by Section 36 of the Evidence Act. See Joseph Mwangi Wahome -vs- Housing Finance Company of Kenya Limited & Another, Milimani H.C. Civil Suit No. 194 of 2007 394.In this suit, the plaintiff did not produce the original document as P. Exhibit Nos. (1) and (2). The makers of the two documents were not called to testify. P. Exhibit No. (1) is not certified by the issuing authority if, at all, the maker was unavailable to testify. The exhibit bears no receipt or acknowledgement date from the recipient. The letter was not addressed to the plaintiff. The annexure to the letter is ineligible. 395.Exhibit No. (2) is not certified by the offices of PW1, 2, 3, and 4. It is not clear when it was published, gazetted, and approved by the Minister. The plaintiff did not lay a basis on which the court should accept secondary evidence, and which documents are certified based on the exceptions in Sections 33 and 35 of the Evidence Act. None of the witnesses called by the plaintiff was privy to the addressees or makers of the two exhibits. 396.In Parkar & Another -vs- NQ & 2 Others Civil Appeal No. 139 of 2020 [2023] KECA 908 [KLR] (24th July 2023) (Judgment), the court cited with approval Arjun Panditrao Khotkar -vs- Kailash Kushanrao Gorantyal [(2020) 3 SCC 216], where the India Supreme Court observed that documentary evidence in contrast to oral evidence is required to pass through check posts such as admissibility, relevance, and proof before it is allowed entry into the sanctum. 397.The court said that the admissibility of a document is tested first, as held in the Supreme Court of India in Anvar P.V -vs- P.K. Basheer, AIR 2015 SC 180 [2014] 10 SCC 473, on genuineness, veracity, or reliability of the evidence as seen by the court, only after the stage of relevance and admissibility. 398.The court said that the Constitution of Kenya contemplates that where the evidence is hearsay, the right entails that the party is entitled to resist the admission and to scrutinise its probative value, including its reliability and credibility, and that where the interest of justice requires that such evidence be admitted, no constitutional right is infringed. 399.The court said that admission of a document in evidence is not to be confused with proof of a document. The court said that when a court is called upon to form a judicial opinion whether a document has been proved, disapproved, or not proved, the court does not look at the document alone or only at the statement of the witness standing in the box, but also takes into consideration the probabilities of the case as emerging from the whole record. 400.The court said that admission of a document is one thing, and its probative value is quite another. The court said that a document may be admissible and yet may not carry any conviction, and its weight or its probative value may be nil. The court cited the Supreme Court of India in Ramji Dayawala -vs- Invest Import, AIR 1981 SC 2085, that mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents, and that the documents execution and contents have to be proved by admissible evidence, that is the evidence of those persons who can vouchsafe for the truth of the facts in issue. 401.From the foregoing case law, I think the plaintiff’s witnesses were unable to speak in the absence of other direct evidence as to the veracity, reliability, and creditworthiness of the two key exhibits, their contents, legality, and probative value to prove surrender and reservation of 2.44 Ha as an open space. 402.The legal and evidential burden of establishing the facts and contention in support of a party’s case, as held in Raila Odinga & Another -vs- Independent Electoral and Boundaries Commission & Others [2017] eKLR, is determined by answering the question as to who would lose if no further evidence were adduced. 403.The plaintiff herein had the legal evidentiary burden to adduce factual evidence to prove the existence of surrender and reservation of the suit land through P. Exhibit Nos. (1) and (2), under Sections 108, 109, and 110 of the Evidence Act. Even if the two documents were to be assumed to have carried any weight in law, still, the applicable Regulations 1961 required the Commissioner of Lands, as demonstrated above, to be involved in the process. 404.From the testimony of all the plaintiff’s witnesses, there is no evidence that P. Exhibit No. (1) was approved and ratified by the Commissioner of Lands as per the cited law above. 405.Without a formal acceptance of the surrender, there could not have been any parcel of land capable of alienation by way of reservation. In Benja Properties Limited -vs- Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, the court held that an interest in land cannot be allotted, alienated, or transferred when the specific parcel of land allotted is nonexistent. The court held that allotment of an interest in land is a transaction in rem, attaching to and running with a specific parcel of land. The court held that the parties had engaged in a paper transaction without a parcel of land, upon which any interest in land would attach and vest. 406.In this suit, the plaintiff had the duty to go an extra mile and lead reliable, cogent, direct, and credible evidence of the existence in the first place of a surrender, its acceptance, and the acts of reservation to rebut the 1st and 2nd defendants and the 3rd defendant's defence that, the 4th defendant in conjunction with other relevant departments, had lawfully and legally allocated and registered the title to the suit property as unalienated vacant government land. 407.Coming to the allotment letter, Section 3 of the Physical Planning Act, Cap 286, repealed, defined a PDP as one that indicates the precise site for immediate implementation of a specific project or for alienation purposes. 408.A PDP must be drawn and approved by the Commissioner of Lands before any alienated government land can be allocated. In this suit, all the plaintiff’s witnesses agree that a sketch map accompanied the allotment letter, and later a survey plan was used to alienate the land. None of the witnesses addressed the court on the legal implications of a survey plan. 409.In Okoiti -vs- Ministry of Lands, Public Works, Housing & Urban Development & 30 others [2026] KEELC 3230, the court held that where land has acquired the status of public land, any attempt to alter, re-designate, or convert such land from one category to another must comply strictly with the constitutional and statutory safeguards governing public land administration. 410.In the Matter of the National Land Commission (Advisory Opinion Reference 2 of 2014) [2015] KESC 3 (KLR) (2 December 2015) (Advisory Opinion), the court held that the conversion of land from public to private land is allowed. From the foregoing, I find that the plaintiffs have been unable to prove illegality or irregularity as regards the PDP in view of the survey plan which is recognised under Part V11 of the Survey Act as an authentic legal document and which the court has not been told was ever cancelled or invalidated. 411.The next issue to determine is the liability of the 4th defendant in the allocation process. Personal liability holds a public officer in the discharge of their duties personally liable for their torts without making their employer liable for their misdeeds. 412.In Albert Venn Dicey [1885]: Introduction to the Study of the Law of the Constitution, 5th Edition, Macmillan, London, pg. 79, it is stated that every official from the Prime Minister down to the constable or collector of taxes is under the same responsibility for every act done. 413.The Government Proceedings Act, Cap 40, provides that the government is liable for torts of omission by its public officers in execution of duties, both statutory and at common law. It did not absolve public officers from personal liability for any torts that they commit. 414.The Government Contracts Act, Cap 25, governs the process of negotiation and signing of contracts on behalf of the government. It provides that no public officer shall be liable to be sued personally upon any contract which he makes in that capacity. Personal liability only attaches if they personally pledge personal credit or sign contracts other than as the agent of the government. 415.The Anti-Corruption & Economic Crimes Act governs situations where a public officer unjustly enriches himself using a public office. It deals with anything that constitutes corruption or economic crime. 416.Misuse or abuse of office arises from a lack of professionalism and ethics by public officers under the Public Officers Ethics Act. It requires a public officer to take all reasonable steps to ensure that the property entrusted to them. 417.In this suit, the burden was on the plaintiff to prove on a balance of probabilities that the 4th defendant travelled outside the remit of his office and his acts thereby inflicted loss of public property, such that he lost the personal protection and immunity accorded to him by virtue of his office as the Commissioner of Lands at the time. Evidence of such abuse of office by acting outside the laid-down procedures of alienation of public land, both under the retired Constitution and the applicable laws, is what the plaintiff ought to have tendered before the court. 418.There is no evidence that the 4th defendant was dismissed, removed from office, demoted in rank, investigated, or otherwise subjected to any disciplinary action or held liable for loss, negligence, or dereliction of duty on account of the allocation of subject matter of this suit before he left service as the commissioner of lands. 419.In Ashby -vs- White (1703) 92 ER 126, Chief Justice Holt held that a public officer infringes on men’s rights, and they can be liable for the loss and damage. 420.Further, in Watkins -vs- Home Office [2006] UKHL 17, Lord Bingham held that if a public body knowingly and deliberately acts in breach of its lawful duty, it should be liable, or amenable to civil action at the suit of anyone who suffers in its land. 421.From the evidence tendered by PW1, the anonymous report, allegedly from SPRO, confirming that the suit property had been set apart or reserved as an open space, only came up in 2022, and not before the 4th defendant signed the allotment letter or the certificate of lease. Evidence that the 4th defendant was personally privy to the reservation or setting apart of the suit property as an open space is lacking. 422.The burden was therefore on the plaintiff to discharge that the 4th defendant, while already privy or notified by the office of the Director of Physical Planning or the Directorate of Land Administration that the suit property was already alienated as public, ignored, overlooked, and or overruled their recommendations and procedures personally to authorize the transaction contrary to both the repealed Constitution and the relevant laws applicable in the circumstances as held in Kariku Kimani -vs- Commissioner of Lands and the Attorney General Nairobi HC Petition No. 758 of 2008. See also Harun Thungu Wakaba -vs- Attorney General [2004] eKLR, and Jimmy Mutuku Kiamba & Others -vs- Ethics and Anti-Corruption Commission & Others Civil Appeal No. 187 of 2018. 423.The next and last issue is whether the plaintiff is entitled to the prayers by way of declarations, rectification of the register, permanent injunctions, mesne profits, and general damages. Declaratory orders issue where there is an existence of a legal right. It has been termed a remedy sui generis. See Cluigh -vs- Ratcliffe [1847] 63 E.R 1016 and Dyson -vs- Attorney General [1911] 1KB 410. 424.A declaratory judgment serves the purpose of declaring the rights or legal position of the parties as they stand, without changing them in any way. In this suit, the plaintiff has been unable to discharge the burden as regards how the suit property existed in fact and in law pre-1994, when it was allegedly allocated as unalienated vacant government land. 425.Declaratory relief cannot issue without the establishment of operative facts creating the legal relationship, since they merely declare pre-existing relations of the litigant. See Solosky -vs- The Queen, [1980] 1 S.C.R. 821. 426.Mesne profits accrue where the litigant has wrongfully been deprived of his property. They refer to actual loss suffered as a result of the wrongful period of deprivation. 427.In Attorney General -vs- Halal Meat Products Ltd Civil Appeal No. 114 of 2009, the court held that as a general principle, everyone has a right not to be deprived of his or her property against his or her authority, unless expressly authorised by law or in the public interest, as held in Commissioner of Lands & Another -vs- Coastal Aquaculture [1997] KECA 409 (KLR). 428.In this suit, the plaintiff did not specifically plead the particulars of the actual loss in the body of the plaint, save for the prayer for mesne profits, which does not specify the amount as contained in the valuation report. The 3rd defendant has opposed the valuation report on the ground that it was undertaken unilaterally and during the pendency of this suit. 429.Order 21 Rule 13 of the Civil Procedure Rules provides that where a suit is for recovery of possession of immovable property and for rent for mesne profits, a court may pass the decree. Mesne profits are monies payable where the person wronged or deprived of the property holds a superior title to it. 430.In Kenya Hotels Properties Ltd -vs- Willsden Investment Ltd [2009] KLR 126, the court held that there has to be evidence that the plaintiff is the owner of the property upon which his claim is based. 431.The plaintiff did not tender evidence that the eventual beneficiary or the custodian of the open space was in exclusive possession of the suit property, immediately before the alleged trespass by the 1st and 2nd defendants, and later on, by the deceased in 1994 and 1995, respectively. See M'Ikiara M'Mukanya & Another -vs- Gilbert Kabeere M'Mbijiwe [1984] eKLR. 432.In David & 5 Others -vs- Muswii Civil Appeal No. 525 of 2019 [2026] KECA 375 [KLR] (27th February 2026) (Judgment), the court held that a District Land Registrar’s report on the disputed boundary ranks as one of the enduring mysteries of modern legal practice and is relevant to prove a case of trespass. 433.The court said that whether the appellant’s rights to natural justice were violated in the preparation of the report, whether they were afforded reasonable notice, whether the Land Registrar lacked impartiality, and whether the report was prepared in accordance with the Land Registration Act were matters of mixed facts and law. The court said that if the appellant had a problem with the report, they were at liberty to challenge its legality, admissibility, or probative value at the hearing of the suit. 434.Further, the court in Stephen Kinini Wangondu -vs- The Ark Ltd [2016] held that expert reports must be considered alongside other evidence. 435.PW5 produced an expert report, in which the 3rd defendant says that he was not consulted about the site visit or during the process of its preparation. The value of the land is not specifically pleaded, and the figure is indicated in the mesne profits prayer. The plaintiff has also not succeeded in proving entitlement to and denial of the right to use, possess, and own the land. 436.A permanent injunction, also known as a perpetual injunction, is granted after a hearing and fully determines the parties' rights. In Kenya Power & Lighting Co. Limited -vs- Sheriff Molana Habib [2018] eKLR, the court held that such an injunction is granted upon the merits of the case after evidence in support of or against the claim has been tendered. It perpetually restrains the commission of an act by the defendant to protect the rights of the plaintiff. See Bandari Investments & Co. Ltd -vs- Chiponda & 139 others [2023] KEELC 17954 (KLR). Further, as to mandatory injunctions, the test for granting the same was set in Kenya Breweries Limited & another -vs- Washington O. Okeyo [2002] KECA 284 (KLR). 437.Concerning rectification or cancellation of title, Section 80(1) of the Land Registration Act provides that a court may do so if there is evidence that it was procured through misrepresentation, mistake, fraud, or a corrupt scheme. 438.Going by the evidence tendered by the plaintiff against that of the 3rd defendant, I find that the plaintiff is not entitled to the reliefs sought. The upshot is that the suit is dismissed with no orders as to costs. 439.Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 30TH DAY OF JUNE 2026.In the presence of:Court Assistant - DennisMiss Githinji for the plaintiff- present1st and 2nd defendants- absentOdwa for the 3rd defendant4th defendant - absentHON. C.K. NZILIJUDGE, ELC KITALE.