https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3260

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE NO. 76 OF 2017** **EVANS SABARI AKWIDAYA…….……….…….... PLAINTIFF** **VERSUS** **PAUL ISIAHO.………………………………………..1ST DEFENDANT** **ALEXANDER SERU LUMITI……………………2ND DEFENDANT** **MERCELINE ANJELI ISIAHO…………………..3RD DEFENDANT** **JUDGMENT** **Introduction** 1. Vide a plaint dated 8th March 2017, the plaintiff herein averred that he was the registered proprietor of land parcel No. Idakho/Shiseso/815 measuring 0.8 hectares (suit property) and that in February 2017, the defendants unlawfully entered the suit property, and ploughed it with intention of planting on the same. 2. The plaintiff sought a permanent injunction to restrain the defendants by themselves or through their agents, assigns and representatives from entering, clearing and or cultivating parcel No. Idakho/Shiseso/815. He also sought costs. 3. The suit was opposed. The 1st and 3rd defendants filed a statement of defence and counterclaim dated 1st October 2018. They denied the plaintiff’s claim and maintained that the plaintiff’s registration of the suit property was obtained through fraud. 4. In regard to particulars of fraud, they stated that the agreement relied upon by the plaintiff was not signed by the late Akala Shilindwa, the purported seller; that the plaintiff did not settle the purchase price; that no land control board consent was sought or obtained and that no transfer instrument was lodged at the lands office. 5. They maintained that they have always used and or cultivated the suit property even during the lifetime of Akala Shilindwa, the previous registered proprietor, with his consent. They also stated that they were the legal representatives of the estate of Akala Shilindwa (deceased) and are entitled to inherit the suit property. 6. In their counterclaim, they sought orders that as the registration of the suit property in the plaintiff’s name was irregular and that the same be cancelled and the suit property registered in the name of the 3rd defendant. 7. The 2nd defendant also filed defence and counterclaim dated 17th November 2023. He denied the plaintiff’s claim and stated that he entered into a land sale agreement with the late Akala Shilindwa on 25th October 2009, whereof he purchased half acre of land to be excised from the suit property at a consideration of Kshs. 80, 000/=, and has been in occupation thereof since 2009. 8. He further stated that the plaintiff’s registration was irregular and fraudulent. He maintained that the plaintiff purported to purchase the suit property well aware that the 2nd defendant had purchased the same and that he obtained title without lodging the requisite transfer documents at the lands office. He counterclaimed for orders that a portion measuring half acre out of parcel NO. Idakho/Shiseso/815 be registered in his name. 9. The plaintiff filed reply to defence. Upon close of pleadings, the suit proceeded by way of *viva voce* evidence. The plaintiff presented one witness while the defendants presented two witnesses. **Plaintiff’s case** 1. PW1 was Evans Sabari Akwidaya, the plaintiff. He adopted the contents of his witness statement dated 8th March 2017 as his evidence in chief and produced documents attached to the list of documents of even date. His testimony was that he purchased the suit property from the former registered owner one Akala Shirindwa Mpeshi on 27th September 2013 and paid the entire consideration whereof the seller executed transfer documents in his favour. That he is the registered proprietor of the suit property. 2. It was his further testimony that the defendants were the seller’s relatives and had without his consent, trespassed on the suit property. That being the registered owner, he is entitled to use his land without interference. He produced a sale agreement, demand notice, title deed and search certificate 3. On cross examination, he stated that he paid the consideration in 2013 and it took him 2 years to obtain the title deed. That he has not put up anything on the land. That at the time of purchase, there was a house, kitchen, toilet, banana crop together with trees on the land. 4. He also stated that he was informed that the said items were owned by the seller’s brother, called Paul Isiaho, the father of the 3rd defendant. That the 2nd defendant claimed to have purchased a portion of the suit property. That at the time of purchase, there were people in occupation of the suit property and he did not ask them their interest in the suit property, and that he was not aware there was a caution on the property at the time of purchase. That marked the close of the plaintiff’s case. **Defendants’ case.** 1. DW1 was Alexander Seru Lumiti, the 2nd defendant. He adopted his witness statement dated 17th November 2023 as his evidence in chief. According to him, sometime in 2009, he purchased half acre of land out of parcel No. Idakho/Shiseso/815 from Akala Shilindwa at a sum of Kshs. 80, 000/= which he paid in full and took possession of the land in 2009 which he had been using to date. He stated that the plaintiff was registered as proprietor of the suit property by fraud because he was in occupation then. That when Akala Shilindwa died, because he had no wife or child, he buried his body in his portion of land. 2. In cross examination, he stated that he had no document to show that he purchased the suit property. That he purchased the land in 2013 from one Paul Isiaho. That he obtained an official search certificate which showed that the land he was purchasing was registered in the name of Paul Isiaho and that he could not remember the registration number of the land he purchased. That he paid consideration to Paul Isiaho. That he purchased land belonging to Paul Isiaho and not the one belonging to Akala Shilindwa. 3. DW2 was Silvanus Lumuri Isiaho, a son of Paul Isiaho and a sister to the original 3rd defendant Merceline Isiaho who passed on. He testified that he substituted his late sister the 3rd defendant. He adopted his witness statement dated 1st October 2018 as his evidence in chief and produced documents attached to the list of documents of even date. His testimony was that because his father Paul Isiaho took care of Akala Shilindwa, in turn, his father always used the suit property and even buried Akala Shilindwa thereon. 4. Further that Merceline Isiaho and Paul Isiaho filed succession proceedings for the estate of Akala Shilindwa only to learn that the suit property was registered in the plaintiff’s name. That Merceline confirmed that the plaintiff did not lodge transfer documents and land control board consent at the lands office and that therefore, the transfer to the plaintiff was fraudulent. That the plaintiff would not have entered an agreement with Akala Shilindwa without Merceline Isiaho and her father being involved. He produced application for correction of names to the Land Control Board, consent for change of names and a letter by Akala Shilindwa. 5. On cross examination, he stated that his father Paul Isiaho purchased the suit property from Akala Shilindwa, but that he had no evidence to show purchase. That the suit property is theirs because the same was jointly owned by his father and Akala Shilindwa and was yet to be shared. That he did not know if the plaintiff purchased the suit property. 6. Parties consented to have the witness statement of one Ernest Cheywa adopted as defence evidence, which consent was endorsed by the court. In the said statement, the witness stated that he witnessed the sale agreement between Akala Shilindwa and the 2nd defendant. That marked the close of defendants’ case. 7. Parties filed submissions in support of their respective cases. On record are submissions filed by the plaintiff dated 30th October 2025 and those filed by the defendants dated 3rd November 2025. **Plaintiff’s submissions** 1. Counsel for the plaintiff submitted that the defendants had come to court with unclean hands for their failure to comply with the orders of this court of 3rd May 2017. Counsel argued that the plaintiff had produced a land sale agreement to demonstrate purchase together with a title and an official search certificate to show registration as proprietor and therefore he had shown that he was the absolute proprietor of the suit property. 2. It was further contended for the plaintiff that the 2nd defendant moved into the suit properties when injunctive orders were subsisting and that he stated that he did not buy land from Akala Shilindwa, the previous owner and therefore he ought to vacate the same. Counsel maintained that the defendants’ evidence did not challenge the plaintiff’s title hence their counterclaims should be dismissed and the plaintiff’s title upheld. **Defendants’ submissions** 1. Counsel for the defendants submitted that the 2nd defendant had demonstrated that he purchased half acre of the suit property from one Akala Shilindwa and that the 3rd defendant was entitled to the remainder of that property. 2. It was further submitted for the defendants that the plaintiff failed to conduct due diligence as at the time of purchase of the suit property, the defendants were in occupation and the plaintiff did not care to establish the basis of the defendants’ occupation. Counsel maintained that as the plaintiff did not exhibit a consent to transfer the suit property, the transfer was fraudulent. **Analysis and determination.** 1. The court has carefully considered this matter and more specifically, the pleadings, evidence and rival submissions. The only issue that arise for determination is who between the plaintiff on one hand and the defendants on the other hand is the lawful owner of the suit property. 2. The suit property is registered in the plaintiff’s name. The plaintiff stated that he acquired the same by way of purchase. It is not disputed that before the suit property was registered in the plaintiff’s name, it was lawfully registered in the name of one Akala Shilindwa. The plaintiff produced a sale agreement dated 27th September 2013 and title deed for the suit property, a demand letter and a search certificate. 3. Section 26 of the Land Registration Act provide for indefeasibility of title as follows; **“Certificate of title to be held as conclusive evidence of proprietorship** **(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—** **(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or** **(b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”** 1. In view of the above provision, registration of land, vests in a proprietor, absolute and indefeasible ownership rights, unless it is proved that the acquisition of title was through fraud, misrepresentation, want of procedure, illegality or corruption. 2. In **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, [2013] e KLR**, the court maintained that a title founded on fraud or illegality cannot be shielded by the doctrine of indefeasibility of title, even where the acquisition was by an innocent purchaser. 3. Similarly, in the case of **Munyu Maina v Hiram Gathiha Maina** **Civil Appeal No.239 of 2009, [2013] e KLR,** the Court of Appeal held that:- **“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”** 1. In the present case, the suit property is counter claimed by the 2nd defendant who alleged to have purchased half an acre thereof and the 3rd defendant who argues that he is entitled to the remaining portion after removing the half acre. 2. Although the 2nd defendant alleged to have purchased the suit property from the late Akala Shilindwa, he had no sale agreement to that effect. Besides, on cross examination, he stated that he purchased land from Paul Isiaho who received the consideration, after obtaining a search certificate showing that the land he was purchasing was registered in the name of Paul Isiaho. 3. That being the case, it is clear that there was no transaction between Akala Shilindwa and the 2nd defendant in respect of the suit property, and therefore his presence thereon is unjustified. On that basis, his counterclaim fails. 4. Regarding the 1st and 3rd defendant’s counterclaim, the 1st defendant did not testify in this matter. Therefore, the basis of his presence on the suit property was not explained and therefore he has no legal or equitable basis to continue in the occupation thereof, which is unlawful. 5. Regarding the 3rd defendant, he testified that the suit property is theirs because his father Paul Isiaho took care of Akala Shilindwa who had no wife or child. There was no evidence of such care and no evidence was presented to show that the suit property was to be held by Isiaho’s family on that basis. 6. The 1st and 3rd defendants confirmed in their defence that their use of the suit property was by the consent of Akala Shilindwa. It is clear to me that upon sale of the suit property by Akala Shilindwa the said consent ceased. Nothing in the defendants’ pleadings and evidence pointed to any legal or equitable right as having arisen or created from their use and or occupation of the suit property. 7. The 3rd defendant produced application for consent signed by Akala Shilindwa, the consent for change of names and a letter dated 20th August 2014. In that letter, the said Akala Shilindwa confirmed selling the suit property to the plaintiff and authorizing the transfer of the same to him. 8. It is therefore clear that the 1st, 2nd and 3rd defendants have not demonstrated lawful ownership of the suit property and therefore, their counter claims fail. 9. On whether they proved fraud against the plaintiff, it is trite that the standard of proof of fraud is higher than the standard required in proving ordinary civil cases of the balance of probabilities, although lower than the standard required for proof in criminal cases of beyond reasonable doubt. 10. The defendants alleged that Akala Shilindwa did not sign the sale agreement presented by the plaintiff. The court has considered the sale agreement. The same was drafted by and signed before an advocate and witnessed by four witnesses. The signature of the Akala Shilindwa the seller, is on the agreement, and a cursory look at the seller’s signature, with his signature on the application for change of names suggests that it was signed by the same person. 11. In their evidence, the defendants produced application for consent for change of names by Akala Shilindwa and confirmed that Akala Shilindwa signed the said application. They did not plead or provide evidence of forgery regarding the seller’s signature on the sale agreement produced by the plaintiff. In the premises, I am satisfied that the agreement produced by the plaintiff was signed by Akala Shilindwa and hence the plaintiff lawfully purchased the suit property from Akala Shilindwa. 12. The plaintiff’s title was registered on 3rd February 2016. Akala Shilindwa never contested the sale or transfer of the suit property to the plaintiff and most importantly, there was no evidence that the estate of Akala Shilindwa was succeeded by the 1st and 3rd defendants or any other person. Thus, they have no capacity to question the transaction between Akala Shilindwa and the plaintiff. The 1st and 3rd defendants argued that Akala Shilindwa could not sell the suit property without consulting them. 13. The suit property was before sale to the plaintiff, the sole property of Akala Shilindwa and there was no basis for him to consult the 1st and 3rd defendants before selling the suit property to the plaintiff. The fact that no such consultation happened does not invalidate the transaction between Akala Shilindwa and the plaintiff. Having lawfully purchased the suit property from Akala Shilindwa, the plaintiff is the lawful owner thereof. 14. In the premises, I find and hold that no evidence of fraud was proved as against the plaintiff. I therefore dismiss the defendants’ counterclaim with costs to the plaintiff and allow the plaintiff’s claim against the defendants as follows; 15. **A permanent injunction is hereby issued restraining the defendants by themselves or through their agents, assigns and representatives from entering, clearing and or cultivating parcel No. Idakho/Shiseso/815.** 16. **The costs of the plaintiff’s claim and those in respect of the defendants’ counterclaims are hereby awarded to the plaintiff and shall be borne by the defendants.** 17. It is so ordered **DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 14TH DAY OF MAY, 2026** **A. NYUKURI** **JUDGE** **In the presence of;** The plaintiff in person Mr. Mukavale J. for the defendant Court Assistant- Delphine