https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4574

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC NO. 1 OF 2024** **GIDEON WAMEDI MWASINGO ………………………… PLAINTIFF** * **VERSUS -** **JAMILA SALIM MBWANA .............................. 1ST DEFENDANT** **MOHAMMED SULEIMAN MOHAMED .…..……..2ND DEFENDANT** **SAIDI MOHAMED MCHAMBI ........................ 3RD DEFENDANT MWALIMU SHEE FUMO ……….…………………. 4TH DEFENDANT** **KITANDULA KHATIB ………………………………5TH DEFENDANT** **MWALIMU SAULO ........................................6TH DEFENDANT MWAKOMBO MELE .......................................7TH DEFENDANT SWALEH ALI ADINI .......................................8TH DEFENDANT CHAPOKA MOHAMED …………………………….. 9TH DEFENDANT** **NASIR KIRUA ...........................................10TH DEFENDANT** **SIDI NYUNDO .............................................11TH DEFENDANT** **JUDGEMENT** 1. **Preliminaries** 2. The Judgement of this Honourable Court pertains to the Civil Suit instituted by the Plaintiff, *GEDION WAMEDI MWASINGO* vide a Plaint dated 27th September, 2023. It was against *JAMILA SALIM MBWANA, MOHAMMED SULEIMAN MOHAMED, SAIDI MOHAMED MCHAMBI, MWALIMU SHEE FUMO, KITANDULA KHATIB, MWALIMU SAULO, MWAKOMBO MELE, SWALEH ALI ADINI, CHAPOKA MOHAMED, NASIR KIRUA and SIDI NYUNDO, the* 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th Defendants herein. 3. Upon service of the Summons to Enter Appearance, the Defendants filed their Memorandum of Appearance dated 31st January, 2024 and Statement of Defence dated 27th May, 2024. 4. Ideally, the main substratum of this matter revolves on land ownership that is supposedly situated with a settlement scheme. There is also an assertion that the land ancestral in nature. Hence, for these reasons, the Honourable Court will therefore in the course of rendering its verdict on the issues arising from this suit, endeavour to critically expound on the process through which land is acquired and owned through Settlement Schemes pursuant to the provisions of Article 40 ( 1 ) & (2) and 63 ( 1 ) & ( 2 ) ( d ) ( ii ) of the Constitution of Kenya 2010 which guarantees that every Kenyan the right to own property in any part of Kenya and the provisions of the Land Act No. 6 of 2012 and Community Land Act, No. 27 of 2016 , 5. **The description of the parties.** 6. The Plaintiff was a male adult of sound mind and understanding. He resided and worked for gain as a farmer and retired Civil Servant in Wundanyi, the County of Taita Tavetta within the Republic of Kenya. 7. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 12th Defendants were adults of sound mind and understanding. doing. They all resided and worked for gain as farmers at Shimoni within the County of Kwale. 8. **Court directions before the hearing** 9. On 16th September, 2024, after confirming that the Plaintiffs had complied with the provision of Order 11 of the Civil Procedure Rules 2010, the Honourable Court set the hearing date on 17th March, 2024. However, it eventually commenced hearing on 16th July, 2025. The matter proceeded on by parties adducing ***“Viva Voce”*** evidence through physical means. 10. The Plaintiff called its witness and closed his case on the sated date - 16th July, 2025. Thereafter, on 1st October, 2025 and 3rd November, 2025 respectively, the Defendants called their witnesses and closed their case as well. 11. **The Plaintiff’s case** 12. From the pleadings before court, the facts were that at all times material to this suit, the Plaintiff was, and still is, the absolute registered and beneficial proprietor of all that parcel of land known as Land Reference Numbers KWALE/SHIMONI/175 (Hereinafter referred to as “The Suit Land”). It was alleged that the Defendants were trespassers to the said land. 13. Sometime in the month of January, 2023 or thereabouts, the Defendants by themselves, their agents, servants and/or employees in blatant disregard of the law and the Constitution trespassed and entered on the suit property without the Plaintiffs consent, approval or permission and started constructing thereon structures. They were also undertaking farming activities on it. 14. According to the Plaintiff, even after the demand made to the Defendants to stop and refrain from continuing with the illegal activities on the said parcel of land, they still never stopped. 15. The Plaintiff claimed against the Defendants for permanent injunction and Eviction Orders to issue. 16. Despite demand from the Plaintiff having been issued against the Defendants they had failed refused and/or neglected to vacate the suit property and continued with their illegal actions, thus making it necessary for the Plaintiff to institute these proceedings. 17. The current Value of the suit land was a approximately a sum of Kenya Shillings Eighteen Million (Kshs, 18, 000, 000/=) 18. The Plaintiff prayed for Judgment to be entered against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 12th Defendants jointly and severally for: - 19. ***A declaration that the Plaintiff is the owner of the suit property KWALE/SHIMONI/175 while the Defendants are trespassers therein.*** 20. ***A permanent order of injunction do issue against the Defendants, their servants, employees agents and/or any other person claiming under the Defendants to stop, cease, refrain from trespassing, erecting structures, alienating and/or otherwise dealing the parcel of KWALE/SHIMONI/175*** 21. ***Eviction order be issued against the Defendants to demolish their structures erected thereon and give vacant possession of the suit property to the Plaintiff*** 22. ***Such or further orders the hon court may deem fit to grant in the interest of justice*** 23. ***The costs of the suit*** 24. **The Opening remarks by Mr. Mwazighe Advocate for the Plaintiff.** 25. On 16th July, 2025, prior to the actual hearing of the Plaintiff’s case, the Learned Counsel provided the Court with a brief opening remark on the substratum of the case. The Counsel informed the Court that the case involved the suit land that was situated at Shimoni, within the County of Kwale. The Plaintiff was the legal and absolute registered owner to it. He had exclusive rights. 26. However, the Counsel further informed Court that despite of this, the Defendants without any colour of shame or authority from the Plaintiff got into it developed some structures and occupied it. The Plaintiff also had a structure on the land. 27. The Counsel asserted that the Plaintiff would be demonstrating that the occupation of the land by the Defendants was illegal and hence urge that they be evicted by the orders of this Court. 28. Thereafter, as already indicated, the hearing of the Plaintiff’s case took place whereby he summoned one ( 1 ) witness (PW – 1) to support his case. 29. **Examination in Chief of PW - 1 by Mr. Mwazighe Advocate** 30. PW – 1 was sworn and testified in English language. He was called Gedion Wamedi Mwasingo, a ctizen of Kenya and holding the national identity card with all the details as shown to Court during the hearing of the case. He was 81 years old and the Plaintiff in this suit. Currently, he was retired. He resided at Wundayi of Taita Tavetta but occasionally visited Shimoni. He informed the Court that he recorded a first witness statement (undated) and a second one dated on 16th March, 2025. He wished to adopt them as part of his evidence in chief. Further to this, he filed a List of Documents dated 27th September, 2023. They were 8 documents. They were produced as Plaintiff Exhibit 1 to 8 in that order. 31. The Plaintiff informed the Court that he was the absolute and registered owner of the suit property, KWALE/SHIMONI/175, measuring approximately 1.7HA. He was allotted the land in the year 1991 from the land adjudication as a settlement scheme after it was advertised. He paid all the prerequisite charges. PW - and he received a title to the suit property in 1994. He constructed a Caretaker’s site house on it. 32. He further stated that sometimes in January, 2023 he received the report on encroachment of his land from his caretaker. He visited the suit property and noted that the Defendants had trespassed and erected some structures and were doing some farming activities on the land. He further averred that he reported the issue police, who told him to seek legal recourse in court. He also conducted official search on 24th January, 2023, which indeed ascertained that he was the registered owner. 33. PW – 1 testified that he had made all efforts to have the Defendants vacate the suit land but in vain. They still continued to illegally occupy it and carry out their illegal farming activities on his land. He advised them to institute a suit to prove their claim of it being an ancestral land by their forefathers but they never did so. They never showed him documents to support their claim. 34. On being referred to a letter dated 11th July, 2023 supposed authored by Messers. Mongare & Company Advocates and allegedly addressed to him. It was a demand to him alleging that he had acquired his title fraudulently. Thus, it demanded that he ceased interfering with the activities on the land. He refuted having received it. His testimony was that had he done so, he would have acknowledged receipt and responded to it. 35. PW – 1 was also shown a letter dated 10th August, 2023 addressed to one Jurrecco – CBO by the County Co - ordinator, Kwale for the National Land Commission supposedly inviting the said CBO and the Plaintiff for a meeting to resolve the land dispute. PW – 1 informed the Court that he declined to attend the meeting as the subject natter was still pending litigation in Court. 36. The Plaintiff stated that he informed the Defendants that the land is his. He never got it by fraudulent means as alleged. It was advertised for allocation to the public through the Settlement Scheme by the Government of Kenya. He applied and was allotted accordingly. He had the necessary documents, and if they have any reason and evidence to believe that the suit property was theirs, they should report to the police and proceed to court. He wondered they had to come claiming it after all these years. 37. He urged the Court to grant him the prayers sought from the Plaint accordingly. 38. The Plaintiff, in support of his claim, produced the following documents Evidence: 39. The National Identity card for the Plaintiff – Plaintiff Exhibit No. 1. 40. A copy of the Certificate of Title Deed for Land No. Kwale/Shimoni/175 - Plaintiff Exhibit No. 2. 41. A copy of Certificate of Official Search dated 24th February, 2023 - Plaintiff Exhibit No. 3. 42. A letter of Offer dated 1st February, 1991 - Plaintiff Exhibit No. 4. 43. A copy of Official receipt for Survey and legal fees dated 3rd August, 1994 - Plaintiff Exhibit No. 5. 44. A copy of receipt to Lands Office to obtain Title Deed dated 3rd August, 1994 - Plaintiff Exhibit No. 6. 45. Bundle of Photographs - Plaintiff Exhibit No. 7. 46. A Certificate of Photographic prints - Plaintiff Exhibit No. 8. 47. **Cross – Examination of the PW – 1 by Mr, Asige Advocate** 48. PW1 testified that he was 81 years old and retired Civil servant. Therefore, he would abide by the truth. He informed the Court that prior to his retirement, he had been a Civil Servant in the Provincial Administration as a Locational Chief at Wundanyi for over 10 years. In total, he had served as a civil servant for a period of 34 years. 49. PW – 1 got the Certificate of Title on 3rd August, 1994. He recalled the then Minister for Lands & Settlement Ho, Darius Mbela. He was his Member of Parliament of Wundanyi constituency. Both of them were serving the Government of Kenya by then. He had a letter of Offer dated 1st February, 1991 – Plaintiff Exhibit No. 4. That the said Letter of Offer to the suit property was given to him by one Mr Mbela who was the then Minister of Lands. It was the basis for the ownership of land. It never indicated the parcel number, He never questioned why it was blank at the reference part but at paragraph 1 of the letter the suit property number was indicated. 50. PW - 1 stated that Mr. Mbela had verbally informed them at Wundanyi that there was a settlement scheme in Kwale that was open for allocation and that interested parties were asked to apply for the said parcels. By then he was Clerical Officer attached with the Ministry of Agriculture. He did apply - his application was verbal and was successful by being issued with a Letter of Offer. 51. By that time, he had not known exactly where the land was situated physically. He went the Land registry for assistance, he was assigned a Land Surveyor, Kwale and with the help of the village elder Mr. Ngonga, he was shown the land and which was cleared and beacons. With a guide of an area map, the Land Surveyor was able to plant the beacons and prepared a sketch with the actual acreage and location of the land. The land was bushy which I got people to clear it. 52. That the offer letter had conditions which included that the land was to be paid for within 90 days which he complied with. The payment of Kenya Shillings One Seventy (Kshs. 170/=) was made on 3rd August, 1994 whereby he was issued with receipts – Plaintiff Exhibit No. 5. 53. The Plaintiff stated that while the Letter of Offer read “***Shimoni Settlement Scheme***” and not ***“Kwale Shimoni Settlement Scheme”*** which he acknowledged there was some slight discrepancies there. It was during the hearing that he noted these differences. That he had developed an iron sheet structure thereon and employed a Caretaker – Mr. Allan Mwashikedi - on the suit property for past 31 years. That the Defendants had in the last three ( 3 ) years (2021 to 2022) invaded the suit property and constructed semi-permanent structures thereon but the said parties did not live on the suit property. He did not know them facially but got their names from his caretaker. He reported the matter to the police who advised him to seek legal action from Court this being a civil case. 54. He stated that he was not aware of any graves on the suit property and that he had not confused the suit property with another property. PW – 1 admitted being from Taita Tavetta but he was entitled to acquire land anywhere within the Republic of Kenya. 55. **Re - Examination of PW - 1 by Mr. Mwazighe Advocate.** 56. According to him, Kwale Shimoni and Kwale Shimoni Settlement Scheme were one and the same. 57. The Plaintiff’s case was marked as closed. 58. **The case by the Defendants** 59. As already indicated The Defendants filed a Statement of Defence dated 27th May, 2024. The Defendants stated as follows:- 60. Save as otherwise expressly and admitted herein, they denied each and every allegation of fact contained in the Plaint as if the same were herein specifically set out and traversed seriatim. 61. On Paragraphs 1 & 2 of the Plaint were denied save for the descriptive parts on the parties. 62. On Paragraphs 3 of the Plaint. They stated that:- 63. they were residence of Shimoni Kwale County and that they were in occupation of the suit land. 64. The suit land was ancestral land which they had occupied and used with their families from time immemorial. 65. They were not aware and never had it been brought to their attention that the said land had been adjudicated and declared a settlement scheme and title deeds issued. 66. The Plaintiff was not a resident nor a native of Shimoni and had never occupied, used nor developed the suit land. He was not the legal, absolute and beneficial proprietor to the suit land. 67. The Title Deed apparently appearing in the name of the Plaintiff had been illegally and unlawfully obtained to dispossess them from their land which they occupied peacefully without interruption todate. 68. On Paragraphs 4 & 5 of the Plaint. They denied being trespassers to the suit land as alleged and put the Plaintiff to strict prove thereof. 69. On Paragraphs 6, 7 & 8 of the Plaint. They averments made thereof were all denied. They had never received any demand notice to vacate the land. 70. They admitted that there was no 4suit pending and no previous proceedings in any Court between the parties herein over the same subject matter. 71. Jurisdiction of this Court was admitted. 72. **The Opening remarks by the Advocate for the Defendants** 73. Prior to commencing of the Defence case, Mr. Asige Advocate commenced by providing the Court with a brief opening remark on the substratum of the Defendants case. He stated that the Defendants deny and shall be showing the Court that the Certificate of Title Deed held by the Plaintiff was fraudulently and illegally obtained. They would be pursuing the Court to issue orders causing the cancellation of the said title. 74. The Counsel further stressed that the Defendants while challenging the validity of the title would be demonstrating that it violated the tenets of the Constitution of Kenya, 2010 and statures. Thus, it should not be protected. They would hold that this was ancestral land belonging to them and their forefathers from time immemorial. It was a representative suit. 75. Thereafter, the matter proceeded on for a defence hearing with two ( 2 ) witnesses (DW – 1 & DW – 2) tendering their testimony whatsoever. 76. **Examination in Chief of DW - 1 by Mr. Asige Advocate.** 77. DW – 1 testified under oath in Kiswahili language. He was called Nassir Kirua Mgala, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing of the case. He was the 11th Defendant. He recorded his witness statement dated 22nd May, 2024 and which he adopted as part of his evidence in chief. 78. DW – 1 informed the court that he had the authority to plead and act on behalf of the other Defendants. However, he stated that the 5th Defendant – Mr. Kibibi Salim was now deceased while the 6th Defendant – Mr. Kitandula Khatib was the husband of the 5th Defendant who substituted his wife. He further stated that the other Defendants and himself were residents of Shimoni, Kwale County and have always had the parcel of land known as KWALE/SHIMONI/175, as it was part of their ancestral land and have been in occupation of the same piece of land. 79. They did not know the Plaintiff. 80. He said that he was not aware that the aforementioned property was already surveyed and adjudicated. He informed the court that the Plaintiff was not a resident of the Shimoni area and that he had acquired the title through fraudulent means. Further, they denied they were trespassers. That he had never seen the Plaintiff apart from when they first appeared before court. 81. DW - I testified that the Defendants had owned the land pre independence. It was the land owned by their fore fathers from time immemorial. That he was born on the land in the year 1979. He was married and had 8 children all born thereon. He further stated that he had lost his father 5 years ago and who was buried on the suit property. They were undertaking subsistence farming on the land. These included cultivation of such crops as bananas, coconut, mangoes, cashnuts and so forth. They had several burial sites there and hence if evicted they would be destitute. 82. DW – 1 indicated having heard that the Plaintiff was infact from Taita. He was not born in Shimoni and was therefore not entitled to owning the suit property. 83. He saw the title deed produced by the Plaintiff. He saw it for the first time when it was brought to them by Mr. Mwashikedi, the Plaintiff’s Caretaker. PW – 1 confirmed that the Plaintiff in the year 2024 brought a Land Surveyor to delineate the boundaries and planted. The Surveyor used the GPRS to identify the beacons. The Defendants were present when this took place. 84. It was later on that they discovered that the Plaintiff had gotten a title deed. They wondered how this happened. It must have been illegally, fraudulently and irregularly as the land was under the land adjudication and settlement scheme. 85. The witness produced the Defendants list of documents dated 26th November, 2024 as Defendant Exhibits Numbers 1, 2, 3,4 & 5 save for the land survey report which was marked as Defendant Marked For Identification (DMFI – 1) after the Plaintiff’s Counsel protested its production by DW - 1 who was not the maker of the said document. Thus, the documents produced thus included:- 86. A copy of a letter to the chairman of the National Land Commission dated 9th January, 2023 from Social Justice Centre Working Group – Defendant Exhibit No. 1. 87. A copy of a letter from Mong’are & Company Advocates dated 11th July 2023, Defendant Exhibit No. 2. 88. A copy of a letter from National Land Commission to JUREECO-CBO dated 10th August, 2023, Defendant Exhibit No. 3. 89. A copy of a letter from the National Land Commission to Mr Gedion Wawedi Mwasinga dated 1st August, 2023 – Defendant Exhibit No. 4 90. A copy of a letter from the National Land Commission to Land Adjudication and Settlement dated 18th February, 2015 – Defendant Exhibit No. 5. 91. Survey report from Geopima Company Limited dated 9th June, 2023 – Defendant Exhibit No. 1. 92. DW - 1 further testified that the Defendants had seen the title deed for the first time when it was brought to them by the caretaker to the suit property. That they were surprised to see the title since to their knowledge the suit property was yet to be adjudicated upon. That they did not know the method used to obtain the title deed without involving them. 93. **Cross examination of DW – 1 by Mr. Mwazighe Advocate.** 94. The witness testified that the suit land belonged to them since the Plaintiff was not from the area. The Plaintiff had no right over it. He admitted to knowing Mr. Allan Mwashikedi as the Plaintiff’s Caretaker of the suit property. And that there was a small structure constructed on the property. The construction ws supervised by the location Chief and a CID officer called Noor. The witness maintained that the suit property had never undergone adjudication as surveyors had never been seen on the property. He admitted not being a Land Surveyor himself. 95. He was referred to Defendant Exhibit No. 1 being a letter dated 9th January, 2023 from an organisation known as ***“Social Justice Centre – Working Group, Justice Restoration & Child Care Organisation”*** being a complaint addressed to the National Land Commission over the registration of the suit land to the Plaintiff. He acknowledged knowing its contents. The land in question was the suit land. Additionally, he was referred to the reply to this letter by the NLC vide their letter dated 10th August, 2023 (Shown Defendant Exhibit Number 3). In all these correspondences, they were advised to seek for legal action from Court. DW – 1 was referred to the Defendant Exhibit Number 5. It was a letter dated 18th February, 2015 by the NLC signed by the Chairman, Prof. Mohammed A. Swazuri to the Land Adjudication and Settlement Officer (DLASO). It made reference to a complaint by a CBO called Mbuyutundu Group/Kopa Hamisi alleging that the suit land was ancestral land and had been registered to alien people and hece advised to investigate. DW – 1 admitted not knowing about the said letter. 96. The witness stated that he wished for the suit to be dismissed. DW – 1 stated that the Plaintiff acquired the suit property through fraudulent means . He had proved fraud. He stated that people had died and been buried on the property though there were neither Certificates of death nor photographic evidence of the burial sites to confirm these assertions. that he was aware property could be acquired anywhere in the Republic by any citizen but the acquisition had to be done legally. The Caretaker of the Plaintiff had showed them the title. They disputed it by lodging complaints at the NLC. He refused to honour the summons by the NLC. The Defendants never filed a case against him in Court. 97. He informed Court not knowing the Plaintiff. He only saw him in court for the first time. The witness further stated that the Plaintiff was a former chief at Wundayi and had therefore never been in occupation of the property or in the area and thus the fraud was obvious. He stated that the Defendants had never lodged a suit before court over the suit property. 98. The Plaintiff instituted this suit in year 2023. They only defended themselves. The matter came up for further defence hearing on 3rd November, 2025. 99. **Re – Examination of DW – 2 by Mr. Asige Advocate.** 100. DW – 1 was referred to the Defendant Exhibit Number 5 being a letter dated 18th February, 2015 by the NLC. He admitted not knowing it nor its contents. 101. **Examination in Chief of DW – 2 by Mr. Asige Advocate** 102. DW - 2 was sworn and testified in English language. He was called Mr. David Nyawa Nyale. He lived in Diani within the County of Kwale. He was a qualified Land Surveyor. He held a Bachelor of Science degree in Geoformatics from Taita Taveta University. He also had a Diploma in Land Survey from Kenya Institute of Surveying & mapping from Ruaraka, Nairobi. He had been practising Land Surveying for 2 years. 103. He was instructed by the Defendants to carry out a Land Surveying exercise and confirm ground ownership related to existing Maps. He carried it out on 6th June, 2023 and prepared a report dated 9th June, 2023. DW – 2 state d that he used the methodology of the existing general boundaries using GPS coordinates to know the locality and the acreage of the land. He also checked whether the unsurveyed land as claimed had any papers. 104. These were the observations made by the Land Surveyor. * Several houses were in existence. * Existing borehole but not in use. * Crops and old planted trees were found on the land. * They picked the boundaries which fell and overlayed onto four ( 4 ) Plots bearing numbers Kwale/Shimoni/159, 164, 175 & 587 respectively. * The acreage for Plot no 175 was approximately 1.84 HA (4.56 acres). 1. He recommended that there be undertaken official searches for the four ( 4 ) parcels of land as per the official map. Thereafter the identification to be done and hence legal action taken for any claim made accordingly. He acknowledged the exercise was successful and that the report was signed. 2. **On cross examination of DW – 2 by Mr. Mwazighe Advocate.** 3. DW – 2 testified that he was the one who did the survey exercise. He was able to pick the parcels and the boundaries. He admitted that the area was surveyed. Plot No. 175 was surveyed and had a title. To draw the Sketch Map, they overlaid their map on the existing map for the Shimoni area. He noted that most of the parcels within this area – Shimoni were unsurveyed. 4. He informed Court that an unsurveyed area may not have an official map but it may be prepared by a Land Surveyor. That the area they went had title deeds. 5. **Re – Examination of DW – 2 by Mr. Asige Advocate** 6. Upon the conclusion of the Land Surveying exercise, a report was prepared. He also prepared a Ground Picking Imagery. He recommended that an official search be conducted in order to establish the registered owners for the four ( 4 ) parcels and hence if there were any claims against them legal action to ensue. 7. The defence case was marked as closed. 8. **Submissions** 9. On 3rd November, 2025 upon the closure of both the cases for the Plaintiff and the Defendants herein the Honourable Court directed that the parties herein to file their written submissions in support of their respective cases. The Honourable Court expressed its gratitude to Mr. Asige and Mr. Mwazighe Advocates in the manner in which they conducted the case with great resilience, devotion, dedication and diligence befitting the legal profession. 10. Pursuant to that, all parties fully complied. The Honourable Court the delivery of Judgement on notice accordingly. Eventually, the Judgement was delivered on 6th July, 2026 accordingly. 11. **The Written Submissions by the Plaintiff.** 12. The Law firm of Messrs. Mwazighe & Co Advocates filed submissions dated 6th November 2025 on behalf of the Plaintiff. Mr. Mwazighe Advocate commenced the submissions by providing the Court with the brief background of the matter. He identified the following issues for determination:- 13. Whether the Plaintiff is the owner of the suit property Land Parcel No. KWALE/SHIMONI/175 measuring 1.7 Hectares and is entitled to exclusive and unimpeded right of possession and occupation of the suit property. 14. Whether the Plaintiff is entitled to Mesne Profits. 15. Whether the Plaintiff is entitled to General damages for trespass. 16. Whether Permanent Injunctive orders should be issued against the Defendants 17. Whether an order for demolition and eviction should be granted against the Defendants. 18. Who should bear the costs of the suit. 19. On whether the Plaintiff was the owner of the suit property. The Learned Counsel was submitted that the actions by the Defendants infringed onto the Plaintiff’s constitutional right to own land as envisaged under the provision of Article 40(1) of the Constitution, subject to Article 65, which provides that every person has the right either individually or in association with others to acquire land and own property. 20. The Learned Counsel averred that the Plaintiff had a duty to call sufficient evidence and prove his claim on the required standard of balance or probabilities as was held in the case of: “***Samson S. Maitai & Another – Versus - African Safari Club Limited & Another [2010] eKLR”.*** Reference was also made to the provisions of Sections 107, 109 & 112 of the Evidence Act, Cap. 80 on where the burden of proof lies in civil matters an issue discussed at length by the Supreme Court of Kenya in the case of:- *“****Gitaru Peter Munya – Versus - Dickson Mwenda Kithinji & 3 Others (2014) eKLR”****,* and in *“****Mbuthi – Versus - Osman & Another (Environment & Land Case E004 OF 2022) [2024] KEELC 387 (KLR)”*** which discussed documentary evidence being reliable evidence when it came to proof of ownership of land. 21. In addition, the Counsel for the Plaintiff referred Court to the Court of Appeal in the case of:- “***Munyu Maina – Versus - Hiram Gathiha Maina (2013) eKLR”*** on proof of ownership of land going beyond showing a title deed to proving how the land was acquired and thus its root. It was submitted that the Plaintiff had given proper history on his acquisition of the suit property through its history as was evident in his testimony before the court. 22. On the claim by the Defendants that the suit property belonged to them by virtue of being an ancestral land. The Counsel argued that they failed to tender proof for the said claim. They had no clue that the suit property was an adjudication section which was a clear indication they have never been on the suit property by virtue of the land being ancestral land. 23. The Learned Counsel submitted that in this case, the Certificate of Title annexed as evidence by the Plaintiff was to be taken as “***prima facie”*** evidence as he has proved how he got the title. It was his submission that the Defendants had failed to prove ownership of the suit property. They had not annexed any evidence regarding ownership to the suit land. Therefore, it would be just to declare the Plaintiff as the owner of the suit property. To buttress on this legal preposition, reliance was placed on the decision by Justice Munyao Sila in the case of:- “***Penmain Company Limited – Versus - Likoni Community Development & 6 Others [2021] eKLR”****.* 24. On whether the Plaintiff is entitled to general damages for trespass on the suit property. The Learned Counsel averred that the Plaintiff had informed Court that the Defendants without his permission, encroached his land and erected some structures and are doing some farming on the land. That the Plaintiff having raised the claim of trespass against the Defendants therefore begs the question; What amounts to trespass? Reference was made to the provisions of Section 3 (1) of the Trespass Act, Cap. 294 on the definition of **“Trespass”** and in Halsbury’s Laws of England 4th Edition Volume 45 Paragraph 26 1503 on assessment of damages for trespass. Further reference was made in the case of:- ***“Philip Ayaya Aluchio – Versus - Crispinus Ngayo Civil Case No. 74 Of 2010”,*** where the court held that the measure of damages for trespass was the difference in the value of the Plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less. The Learned Counsel referred to the cases of:- ***“Park Towers Limited – Versus - John Mithamo Njika & 7 others 2014 eKLR”*** and in ***“Eunice Nkirote Ringera – Versus - The Kenya Power and Lighting Company, ELC Case No. 869 OF 2017”*** in agitating his claim. 25. On whether the Plaintiff is entitled to mesne profits. The Learned Counsel proposed a figure of a sum of Kenya Shillings One Million (Kshs. 1,000,000/-) as mesne profit would be reasonable in this case. It was submitted that the Plaintiff was therefore entitled to recover mesne profits from the illegal occupation and cultivation of the suit property by the Defendants. 26. As to whether permanent injunctive orders should be issued against the Defendants. It was submitted that the Plaintiff’s evidence that the Defendants had trespassed onto his land and erected structures on the suit property having been uncontroverted meant that a permanent injunction be issued against the Defendants and their agents against staying on the suit property. It was also submitted that an order of demolition be issued against the Defendants. Reliance was placed in the case of:- “***Igainya Co. Limited - Versus - Johnstone Mukuse Elc Case E002 of 2023”***, where the Court granted a mandatory order of eviction and demolition of structures erected by the Defendant after the Plaintiff successfully proved that they were the owners of the suit property and that the Defendant was trespasser. 27. On the issue of eviction. The the court was urged to take a cue from the holding in the case of:- “***Teresia Wanjiku Koigi – Versus - Lincoln Wariua Ngonyo & 16 Others, Elc Case 183 of 2017”***, where the Court issued an order of eviction against the Defendants for encroaching and illegally erecting structures on the Plaintiff’s land. That it would therefore be in the interest of justice that this Honorable Court does the same. 28. On who should bear the costs of the suit. The Learned Counsel opined that the Plaintiff incurred costs while prosecuting this suit and the same should be awarded to him as the rule of the thumb was that costs follow events. 29. **The Written Submissions by the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 9th, 10th & 11th Defendants.** 30. The Defendants through the Law firm of Messrs. Asige, Keverenge & Anyanzwa Company Advocates filed their written submissions dated 8th June, 2026. Mr. Asige Advocate commenced his submissions by providing a brief background of the case herein. He informed court that this suit arose from a Land Dispute involving all that parcel of land known as Land Reference numbers Kwale/Shimoni/175 - the suit property. 31. According to the Learned Counsel, the Plaintiff brought this suit through a Plaint dated 27th September, 2023 and sought the above stated orders. The Plaintiff adopted his witness statement and additional witness statement dated 16th March, 2025. The Plaintiff has also produced before this Honourable Court a list of documents dated 27th September, 2023, containing, inter alia, a copy of the title deed, a certificate of search and a letter of offer dated 1st February, 1991. 32. **The case by the Defendants** The Defendants opposed the Plaint via a Statement of Defence dated 27th May, 2024. The Defendants contended that the suit property was their ancestral land and had been in their family for generations. That they had been in uninterrupted occupation, possession and use of the suit land. Further, the Defendants argued that the Plaintiff acquired the title deed illegally and fraudulently and were not aware that the property had been adjudicated and declared a settlement scheme. 1. The 11th Defendant swore a witness statement dated 27th May, 2024 on behalf of the other Defendants and admitted the same as his testimony before this Honourable Court. In support of their case, the Learned Counsel relied on the following two ( 2 ) issues for determination: - Firstly, whether the Plaintiff was the owner of the suit property. The Learned Counsel submitted that it was trite law and legal position on the sanctity and indefeasibility of land titles in Kenya was authoritatively settled by the Supreme Courtin the case of:- “***Dina Management Limited – Versus - County Government of Mombasa & 5 Others (Petition No. 8 (E010) of 2021) [2023]* KESC30(KLR)”.**Inadefinitive pronouncement, the apex Court underscored that a title deed is merely the end product of a process, stating in clearest terms that: ***"The title or lease was an end product of a process. If the process that was*** ***followed prior to the issuance of the title did not comply with the law, then*** ***such a title could not be held as indefeasible. The first allocation having*** ***been irregularly obtained, the former President had no valid legal interest*** ***which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to*** ***the appellant... The court could not, based on the indefeasibility of title, sanction irregularities and illegalities in the allocation of public land. It was*** ***not enough for a parly to state that they had a lease or title to the property."*** 1. The Learned Counsel averred that, stemming from “***the Dina*** ***Management” (Supra)*** principle, the Supreme Court established that proof of ownership does not begin and end with the mere production of a title or an allotment letter. Rather, it hinges on the legitimacy of the entire chain of documentation tracing back to the root of the title. Where the root of the title is tainted, or where the chain of lawful allocation is broken, the resultant title is fundamentally defective, incurable, and deemed void ab initio. 2. Applying this strict legal standard to the present case, the Learned Counsel averred that Plaintiff's claim of ownership completely collapses. The Plaintiff had merely produced the first pageofatitledeed ***(Document No. 2 in the Plaintiff's List of Documents).*** This fragmented presentation. It did not match the requirements of the provision of Section 26 (1) of the Land Registration Act, No. 3 of 2012, which mandates that prima facie statutory ownership can only be proved by a complete Certificate of Title or a Certificate of Lease. It was this full certification that serves as prima facie evidence of absolute and indefeasible ownership. Absent the requisite statutory certificate, the Plaintiff's claim was legally defective, and incapable of dispossessing the Respondents of their ancestral land rights. 3. Additionally, the Learned Counsel asserted that the Plaintiff had produced a Letter of Offer dated 1st February, 1991 and payment receipts dated 3rd August, 1994 (Over3yearsaftertheLetterof Offer was issued) to support their case. Furthermore, a look at the Plaintiff's own documents revealed a glaring procedural impossibility. The Plaintiff's payment receipt was dated 3rd August, 1994, and their alleged Title Deed was also dated 3rd August, 1994. Thus, the Learned Counsel submitted that this timeline was a glaring anomaly. A statutory Title Deed was the end product of a long process. The Land Registry could not verify a payment, update the official register, and execute a title deed on the exact same day a receipt was printed. This combined with the fact that the Plaintiff left their Letter of Offer of 1991 dormant for over three years, showed that the proper legal procedures were completely bypassed. 4. A Letter of Allotment being a conditional offer requires the Plaintiff to meet and discharge terms and conditions set out in the letter including payment of the requisite fees within 90 days as therein prescribed. The Plaintiff failed to demonstrate compliance with the term of payment. Further, a letter of offer posses no legal interest in law. The Constitution of Kenya (2010) recognizes ancestral land as a subset of community land in Article 63(2)(d), (3), (4) and (5). It provides as follows:- **(2)(d) Community land consists of land that is *ancestral* *lands* and *lands* traditionally occupied by hunter-gatherer communities.** **(3) Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held.** **(4) Community land shall not be disposed of or otherwise *used* except *in* terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.** **(5) Parliament shall enact legislation to give effect to this Article.** 42. According to the Learned Counsel, the Plaintiff herein had not shown compliance with the provision of Section 8 of the Community Land Act which provides for the procedure for recognition and adjudication of community land. Hence, they humbly submitted that a single page of the alleged title deed, the letter of offer dated 1st February, 1991 and the receipt dated 3rd August, 1994 were insufficient to discharge the burden of proving a clean root of title. As established by the Apex Court in *“****the Dina******Management******Case”,*** a claimant must demonstrate a flawless procedural history leading to the issuance of title.By presenting disjointed receipts and a Letter of Offer, the Plaintiff had failed to demonstrate a seamless, lawful acquisition process, rendering their claim structurally defective. 43. The Counsel averred that during the trial, the following key facts were established. First, the Plaintiff testified under oath that he was not a native of Shimoni area where the plot is situated and he never applied for the allocation of the disputed land. Instead, he was merely notified of its availability by Darius Mbela, the then Minister for Lands and Settlement, following which the Plaintiff provided his national identity card for allocation to an area chief in Taita Taveta County without making a formal application for allocation. 44. Secondly, the Plaintiff admitted in his testimony that he had neither visited the property nor identified its physical location. Notably, the Plaintiff was a resident of the County of Taita Taveta County and had not applied for the allocation of Title Number Kwale/Shimoni/175 oratall. Thirdly, whereas the allocation was a settlement scheme, the Plaintiff got a completely different property not issued in respect of a settlement scheme. On the same breath, it was noted that the payments were also made over 3 years after the impugned allocation letter was issued. Forthly, the impugned allocation letter never provided any particulars/details of the allocated property being Kwale/Shimoni/175. 45. He went on further to state that he had only provided Identification Card and was issued with a letter of allotment by a chief in Windanyi in Taita Taveta County. The land the subject matter herein is situated in Shimoni, Kwale County. In conclusion, the claim of ownership by the Plaintiff was backed with a single page of the alleged title. This could not stand and never met the threshold providedunder the provision of Section26 (1) of the Land Registration Act, 2012. The Counsel reiterated the fact that under the strict rules set by the Supreme Court, a party could not rely on an incomplete title deed, an offer letter, and incoherent receipts to prove absolute ownership. The Counsel contended that the Plaintiff had a clear duty to show a legal and unbroken chain of ownership tracing back to a clean root. They had failed to do so. Without a complete Certificate of Title or proof that they followed the proper legal process, their claim was deeply flawed. Therefore, the Plaintiff had no valid legal right to this land. 47. On whether the Defendant had justification of Claim for Ancestral Land. It was the Defendants' uncontroverted position that this property was ancestral land which had belonged to, and been occupied by, their family for generations. The Counsel asserted that the purported adjudication and allocation of the suit property to the Plaintiff without their involvement and the involvement of the community violated their property rights guaranteed under the provision of Articles 40 and 63 (3) & (4) of Constitution of Kenya 2010 and the African Charter on Human and Peoples' Rights. 48. The prayer for their expulsion from their ancestral land against their would and without prior consultation, also go against the provision of Section 28(b) of the Land Registration Act, 2012 as customary trust holds an overriding interest over the suit property. This Position was affirmed by the Supreme Court in the case of:- *“****Isack******M'inanga Kiebia – Versus - Isaaya Theuri M'Lintari [2018]”*** wheretheCourtheld:- “***It is now clear that customary trusts, as well as all other trusts, are overriding*** ***interests. These trusts, being overriding interests, are not required to be*** ***noted in the register. However, by retaining the proviso to Section* 28 *of the*** ***Registered Land Act (now repealed), in Section 25 of the Land Registration*** ***Act, it can be logically assumed that certain trusts can still be noted*** *in**the* ***register.*** 49. The Plaintiff under the contents of Paragraph 3 of his Statement admited to being a resident of Taita Taveta and not Kwale, Shimoni, where the suit property was located. Land Title No KWALE/SHIMONI/175 was in a settlement scheme where land was allegedly allocated to the Plaintiff. The Defendants had shown, through their defence and testimony in the witness statement of 11th Defendant dated 27th May, 2024 that they were natives of Shimoni. Further, that they had been in occupation and use of the suit property since time immemorial. Their occupation and use of the suit property had been uninterrupted and without any dispute or conflict until the Plaintiff filed this suit. 50. The Defendants successfully proved that the disputed property serves as ancestral land occupied by multiple generations of their family. They continued to actively farm the land, cultivating coconut trees, and the property served as a family burial ground containing historical grave sites. According to the Counsel, likewise this position was firmly upheld by the Supreme Court of Kenya in the case of “***Isack******M'Inanga Kiebia (Supra).*** Theapex Court ruled that a registered owner holds land subject to the customary trusts of the family or clan that originally occupied it. The Court made it clear that formal registration cannot be used as a tool to dispossess a family of their ancestral inheritance. 51. For these reasons, therefore, the Defendants firmly urged this Honourable Court to find that the suit property is ancestral land, and that the alleged allocation of the property to the Plaintiff was both illegal and void ab initio. 52. On prayers by the Plaintiff in the Submissions dated 6th November 2025 to wit:- being entitled to mesne profits and general damages for trespass. These prayers should be struck out. It is a trite principle of law that parties were strictly bound by their pleadings. The Plaintiff failed to pray for these specific remedies in his Plaint and could not seek to claim them at this late stage. This position was firmly reaffirmed by the Court of Appeal in the case of:- “***David*** ***Sironga*** ***Ole*** ***Tukai* *– Versus -* *Francis* *Arap* *Muge* *&* *2* *Others* [2014] eKLR,** wheretheCourtheldthat:- ***“The law is well settled that parties are bound by their pleadings and that the*** ***court has no business to decree a relief which has not been prayed for”.*** 53. In summing up the submissions, the Learned Counsel urged the Court to find that:- 1. the Plaintiff's title wasfull of glaring irregularities. 2. The late payments, the conflicting dates, and the fact that the Plaintiff received an allocation for a property they never applied for, all led to one conclusion that the title had been acquired illegally, unprocedurally and/or through a corrupt scheme. 3. the Plaintiff had failed to prove a clean acquisition of title. 54. In conclusion, the Learned Counsel urged Court to dismiss Plaintiff's case with costs and grant the following reliefs: * 1. A declaration that the Plaintiff's suit against the Respondents was entirely unmeritorious and it be dismissed with costs to the Respondents. 2. A declaration that the suit property constituted ancestral land held under a Customary Trust for the benefit of the Respondents. 3. An order directing the Land Registrar to cancel or revoke any title deed, Letter of Allotment letter, or registration entry standing in the name of the Plaintiff regarding the suit property. **VIII. Analysis & Determination** * + 1. I have keenly assessed the filed pleadings filed by the Plaintiff and the Defendants herein, the comprehensive written submissions, the myriad of authorities cited by Parties herein, the relevant provisions of the Constitution of Kenya, 2010 and the statures. 2. For the Honourable Court to reach an informed, Equitable and fair decision, it has condensed the subject matter into the following three (3) salient issues for its determination. These are namely: - 1. ***Whether the suit instituted by the Plaintiff against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th 10th and 11th Defendants has any merit whatsoever? IF the Plaintiff the legal and absolute registered owner to the suit property or he had acquired it through illegalities, irregualarities and /or fraudulent scheme?*** 2. ***Whether the Plaintiff is entitled to the orders sought?*** 3. ***Who bears the costs of suit?*** ***ISSUE No. a). Whether the suit instituted by the Plaintiff against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th 10th and 11th Defendants has any merit whatsoever?*** 1. Under this Sub – title, the Honourable Court will endeavour to assess whether the Plaintiff has been able to establish his case based on all the required legal standards. Primarily, the main substratum of this case is on the legal ownership of the suit land by the parties herein. 2. From the very onset, in order to critically and justifiably tackle this dispute effectively and efficiently, the Court is guided by the doctrine of “**the Burden of Proof"** which is founded under the provision of Sections 107, 108 and 109 of the Evidence Act, Cap. 80 of the Laws of Kenya whereby it the Plaintiff to prove its case. They provide as follows: - “**Section (107); Burden of proof.** **(1); Whoever desires any court to give Judgement as to any legal right or liability dependent on existence of facts which he asserts must prove those facts exists.** **(2); When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.** **Section (108); Incidence of burden.** **The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.** **Section (109); proof of particular fact.** **The burden of proof as to any particular fact lies in the person who wishes the court to believe in its existence. Unless it is provided by any law that the proof of fact shall lie on any particular person.”** 1. Undoubtedly, the ownership of the suit property is the bone of contention in the suit before this Court. The Plaintiff has produced before court a copy of the title deed to the suit property herein demonstrating that he is the legal and absolute registered proprietor of the suit land with indefeasible right, interest and title vested in law. The law provides for protection of rights over ownership of titled land. These protection is anchored under the provision of Article 40 ( 1 ) & (2) of the Constitution of Kenya, 2010, Sections 24, 25 and 26 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012. 2. The provision of Article 40 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010 provides:- **40.(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-** **(a) of any description; and** **(b) in any part of Kenya.** **(2) Parliament shall not enact a law that permits the State or any person-** **(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or.......** **(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired”.** 1. The provision of **Section 24(a) of the Land Registration Act, No. 3 of 2012** provides for the interest conferred by registration. It provides: - **“Subject to this act the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all the rights and privileges belonging or apparent thereto.”** 1. **The provision of Section 26 (1) of the Land Registration Act, No. 3**provides as follows: **“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer shall be taken by all the courts as prima facie evidence that the person named as the proprietor of the land is absolute and indefeasible owner 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. While the provision of Section 26 (2) provides that: - **“certified copy of only registered instrument signed by the registrar, shall be received in evidence in the same manner as the original”.** 1. It is evident that the law is extremely protective of title and provides only two instances for the challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. The import of the provision of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, un-procedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. See the case of:- “***Chemey Investments Limited -Versus - Attorney General & 2 Others, CA No. 349 of 2012”****,* the Court of Appeal held that sanctity of title to land registered under the repealed Act was guaranteed and could not be defeated except on the specific grounds set out therein. 2. The purpose of Section 26 (1) (b) is to protect the real title holders from being deprived of their titles by subsequent transactions. That is to say, this is where the Certificate of Title is doubtful, suspect or obtained by fraud or forgery unprocedurally, illegally or corrupt means or by mistake or omission as envisaged under the above provision of Section 26 (1) of Land Registration Act, No. 3 of 2012. See the cases of: ***“Joseph Komen Somek - Versus - Patrick Kennedy Suter ELC Eldoret Appeal No. 2 of 2016 (2018) eKLR”.*** 3. Also, the court in the case of:- ***“Alice Chemutai Too – Versus - Nickson Kipkurui Korir & 2 Others [2015] eKLR”****,* held that: - ***“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme*** ***I do not see how a person with a perfectly good title should be deprived of his title by activities of fraudsters. It is in fact time to put down our feet and affirm that no fraudster, nor any beneficiary of fraudulent activities, stands to gain for his fraud, and no title holder will ever be deprived of his good title by the tricks of con artists.”*** 1. Still on the fundamental issue of legal ownership of land, the New Zealand Court in the case of:- “***Allan Fredrick Frazer – Versus - Douslss Hamillon Walker and Another (1967) AC 569”*** held that a Certificate of title is conclusive evidence and proof of ownership unless there is cvidcncc to the contrary. That under the concept of indefeasibility, the registered proprietor is immune from attack by adverse claims 1o the land or interest in respect of which he is registered. 2. The Supreme Court in Uganda in the case of:- ***“Fredrick J.K Zaabwe – Versus - Orient Bank Limited & Ors SCCA No. 4 of 2006”*** stated that a title deed is indefeasible, indestructible or cannot be made invalid save for specific reasons listed under Sections 64, 76 and 174 of the Registration of Titles Act which relate to fraud. That in absence of fraud on the part of the transferee or some other statutory ground, a registered owner holds an indefeasible title. 3. The Ugandan High court in the case of:- “***Sebuliba – Versus – Co - operative Bank Limited [1987] HCB 130”***and *“****M. Kibalya – Versus - Kibalya [1994 - 95] HCB 80”*** contended that the burden of pleading and proving fraud lies on the person alleging it and that the standard of proof is beyond mere balance of probabilities. 4. Therefore, the fundamental question in this case is whether the Defendants have pleaded and proved fraud to the required standard. This being such a weighty allegations, the Honourable Court takes the liberty to summarise the said assertions herein whereby the Defendants have challenged the title to the suit property by stating as follows that:- 5. From the filed Defence and the evidence of DW - 1 acting on behalf of all the other Defendants, the suit land was ancestral/community land belonging to them and their fore fathers from time immemorial. It was not available for allocation to anyone including the Plaintiff. 6. The land was yet to be adjudicated and that the title deed was not for the suit property as the area did not have any titled parcels. 7. the Plaintiff was not a local resident of the area taking that he hailed from Wundanyi which was in the County of Taita Tavetta and hence was not entitled to be allocated land at Shimoni and hence by extension the Certificate of Title Deed which he held was obtained unlawfully and illegally. 8. The particulars on title deed bore numerous and glaring inconsistencies and errors. 9. The late payments, the conflicting dates, and the fact that the Plaintiff received an allocation for a property they never applied for, all led to one conclusion that the title had been acquired illegally, unprocedurally and/or through a corrupt scheme. 10. the Plaintiff having been a former and retired Location Chief of Wundayi and having been awarded it land by the former Minister of lands and Settlement, Hon Darius Mbela who was his Member of Parliament the title was subject to challenge and hence a candidate for cancellation under the provision of the Law. 11. This evidence was however contradicted by DW – 2, a Land Surveyor vide his report dated 9th June, 2023 who stated that using the area Map and coordinates for Shimoni area had surveyed the suit property as instructed by the Defendants. In his elaborate observation and conclusion, the area was an adjudicated one and survey had been undertaken and title deeds inclusing the one for the suit land issued. He recommended that there be an official serach conducted to establish the actual legal registered owners and if they would any claim against them legal action to follow. Amazingly, none of the Defendants heeded to this sound and professional advise which they themselves had sought. Perhaps they found it not favourable to them and instead decided to abandon that approach. 12. Be that as it may, when a person’s ownership to a property is called into question and the validity of title is challenged, it is trite that the said proprietor has to show the root of his ownership. On this particular issue, the Honorable Court has had to be informed by the legal ration found in the Court of Appeal case of: - ***“Munyu Maina –Versus - Hiram Gathitha Maina (Supra)”*** at Paragraph 17 held as follows: -***“We state that when a registered proprietor root of title is under challenges, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legally of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including and all interest which need not to be noted on the register”.*** 13. I also relied on good authority from the dictum in the case of: “***Arthi* Highway Developers Limited – Versus - West End Butchery Limited & 6 others *(2015) eKLR”****, t*he Court of Appeal established that a title derived from a fraudulent, broken root is invalid, even if the subsequent purchaser is a bona fide purchaser for value without notice. It held that if the initial transfer of land is rooted in fraud or forged documents, the entire chain of title is broken, voiding subsequent transfers. 14. Additionally, the issues of fraudulent act by the Plaintiff in obtaining his title, which forms a major part of the allegation by the Defendants, are extremely vital and legitimate concerns that need to be critically examined. Where a party has properly pleaded fraud, he or she is required in addition to prove it beyond a mere balance of probabilities. 15. According to the **Black’s Law Dictionary it defined “Fraud” as follows:-** *“****Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”.*** 1. The High Court has expended considerable judicial resources deliberating on this legal concept. This Court therefore will not want to re – invent the wheel whatsoever. I will cite but a few of these precedents. They are the case of:- “***Central Kenya Limited – Versus - Trust Bank Limited & 4 Others, Civil Appeal No. 215 of 1996; [1996] eKLR”***the appellate court determined: ***“The appellant has made vague and very general allegations of fraud against the respondents. Fraud and conspiracy to defraud are very serious allegations. The onus of prima face proof was much heavier on the appellant in this case than in an ordinary civil case.”*** 1. Similarly, in the case of: “***Koinange & 13 others – Versus - Koinange [1968] KLR 23”*** the Court of Appeal held that allegations of fraud must be specifically pleaded and strictly proved on a standard below beyond reasonable doubt but above the usual standard in civil proceedings, that is on the balance of probabilities. 2. Further, in the case of:- “***Vivo Energy Kenya Limited – Versus - Maloba Petrol Station Limited & 3 Others, Civil Appeal No. 21 of 2014; [2015] eKLR”****,* the appellate court delivered itself thus: ***“Where fraud is alleged, it must be specially pleaded and particulars thereof given. That is what is required by Order 2 rule 10 of the Civil Procedure Rules, 2010. Way back in the 19th Century, Lord Penzance stated the principle thus, in MARRINER – VERSUS - BISHOP OF BATH AND WELLS [1893) P. 146: ‘The court will require of him who makes the charge that he shall state that charge with as much definiteness and particularity as may be done, both as regards time and place.’*** 1. Also, in the case of:- “***R. G. PATEL – Versus - LALJI MAKANJI [1957] EA 314, at page 317”*** the former Court of Appeal for Eastern Africa stated that: ***‘Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.’*** 1. It is noted that on cross examination of DW-1, he averred that the mere fact that the Plaintiff was a former locational Chief in Wundayi within the County of taita Tavetta and not a resident nor native of Shimoni of the County of Kwale, and had been favoured by the former Minister of Lands and Settlement Hon. Darus Mbela who apparently was his Member of Parliament for Wundayi Constituency meant that he had obtained the suit property illegally. Certainly, with all due respect to the Defendants thee arguments are not only superfluous, unfounded but baseless in law on such a serious allegation of fraud. They ought to have done a better assignment than this pedestrian one. 2. Ideally, the Defendants failed to provide any empirical documentary evidence showing ownership of the property or the illegality in registration of the suit property in the Plaintiff’s name. In a nutshell, the precision with which fraud ought to be outlined to warrant the cancellation of the title allocated to the Plaintiff with all its indefeasible rights, title and interest vested in him by law has clearly not been met. The Plaintiff on the other hand gave history on how he came about to be registered as the owner of the property. The court has perused the documents presented and which include the offer letter to the suit property whose conditions were met as evidenced by the receipts on record. 3. What sticks out a mile is that the Defendants are clearly incognisant of the process for acquisition of land through either the Land Adjudication or the Settlement Schemes (under the Settlement Scheme Fund Trustees (SSFT) as spelt out under the provision of Section 7 of the Land Act, No. 6 of 2012. For these reason, therefore, the Honourable Court will undertake to extrapolate in in the simplest of terms possible in the interest of justice and in a bid to foster public confidence in the judicial system based on whichever outcome will be made at the end. 4. However, prior to that, the court wishes to under score that it is tasked with determining who between the parties herein is the rightful owner of land parcel no KWALE/SHIMONI/175 with both parties laying claim to ownership of the said land. What was evident at the hearing of this case was the antagonism towards persons considered “outsiders” in the context of persons not born within the coast region and from a different tribe from the local communities owning land in the coastal region. This is perhaps informed by the lack of knowledge and information on how to acquire and register land especially for parcels secured through settlement schemes. 5. There has been no clear legislation governing this concept in Kenya. Settlement schemes are either a government – sponsored program designed to acquire and sub – divide large tracts of agricultural or government – owned land. The said parcels are for distribution or an official immigration framework allowing people from other regions to secure residency status. The people targeted for re – settlement are marginalised groups, landless citizens and squatters in order to increase agricultural productivity and alleviate rural poverty. Initially, the SFT were established under the Agriculture Act, Cap. Under the Land Settlement Schemes (Agricultural & Development). Clear examples are Mwea or Banita schemes. 6. Currently, the Settlement schemes are established and administered by the National Land Commission under the provision of Section 134 of the Land Act No. 6 of 2012. Identification and verification of beneficiaries to the scheme is conducted by a Sub-county settlement committee comprising of several stakeholders that include the sub-county administrator, representatives of County Government, National Land Commission, National Government and the marginalised and vulnerable members of the community who may include persons with disability and women. 7. Once an individual receives an offer letter which indicates the plot number and acreage, they are then expected to accept the offer together with the terms and conditions stated therein and which include payment as required within 90 days. Upon completion, the information is relayed to the director of settlement in Nairobi by the local settlement office. After verification, a discharge of charge is made and a transfer from the Settlement Fund Trustee to the owner who has complied with the conditions. 8. The documents are forwarded to the Land Registrar within the locality of the suit property. The owner will then pay stamp duty, registration and titling fees and the title is processed and issued to them. It is important to note that land in settlement schemes are allocated in accordance with national values and principles of governance provided in the provision of Article 10 and the principles of land policy provided in Article 60(1) of the Constitution. The notion that the Plaintiff was not entitled to the suit property for reasons that he was not from the Shimoni area but from Wundayi, the County of Taita Tavetta are therefore misplaced, unfounded, crude and need I say archaic. 9. Bearing the above in mind, the Defendants have clearly failed to prove the aspect of fraud and unlawful registration of the suit property in the Plaintiff’s name. On the other hand, the Plaintiff was able to give a proper account on the history of the registration of the suit property in his name. The Honourable Court discerns that he is the legal and absolute registered proprietor to the suit land with all the indefeasible right, title and interest vested in him by law. It is further noted that the Defendants have not availed any documentary evidence cementing their claim over the suit property. DW - 1 in his testimony confirmed that the suit property had one Allan Mwashikedi a Caretaker of the Plaintiff in occupation of the said suit land. The assertion to the effect that there were grave and/or burial sites within the suit land and continued occupation of the suit property by the Defendants were not backed up either by any form of empirical evidence such as photographs. 10. From this evidence it is clear that the disputed land belongs to the Plaintiff as was explained by the documents and testimony above herein. ***ISSUE No. b). Whether the Plaintiff is entitled to the relief sought*** 1. The Plaintiff sought for a declaration that he is the lawful registered owner of the suit property, together with a permanent injunction and eviction orders against the Defendants herein. This Honourable Court has held that the title by the Plaintiff has not been challenged. Further, the Plaintiff has proved that the Defendants trespassed into the Plaintiff’s land, the next issue is whether as a result of the same; the Defendants should be permanently restrained. 2. To respond to this, the Principles on Injunction were established in the celebrated cases of:- “***Giella – Versus - Cassman Brown & Co. Limited (1973) EA 358, East African Industries – Versus - Trufoods [1972] EA 420”***and in *“****Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR”*** where the Court restated the law as follows: “In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. 3. What constitutes a permanent injunction was aptly articulated in the case of:- “***Kenya Power & Lighting Co. Limited – Versus - Sheriff Molana Habib [2018] eKLR”****,* in which the Court stated as follows:- ***“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the Court and is thus a decree of the Court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected.”*** 1. In the present case, the conditions for the grant of a permanent injunction are clearly met. The Plaintiff has demonstrated lawful ownership of the suit property, and the Defendants have no legal basis to occupy or interfere with that property. I reiterate that the Plaintiff having produced a title document, I hold that the Plaintiff has indeed established a prima facie case and proved his case to the required threshold to warrant the grant of permanent injunctive orders sought. Consequently, I will proceed to find that in these circumstances, a permanent injunction is not only appropriate but necessary to protect the Plaintiff’s rights and to prevent ongoing or future infringement. The relief serves the dual purpose of vindicating ownership and ensuring that the Plaintiff’s entitlement to exclusive possession is respected in law. 2. The court further takes cognizance of the eviction prayers by the Plaintiff. The evidence adduced fully supports the Plaintiff’s claim, while the Defendant offers no lawful justification for the occupation and alleged development on the suit property. In my view, an order of eviction is similarly warranted. The Defendants continued presence on the suit property constitutes a direct and unlawful interference with the Plaintiff’s proprietary rights. 3. While the provision of Sections 152E and 152F of the [Land Act](https://new.kenyalaw.org/akn/ke/act/2012/6), No. 6 of 2012, provides for statutory eviction notices under the Court is satisfied that such a notice is not a prerequisite in this case. The Plaintiff has instituted a substantive suit, the Defendant has been duly served with the pleadings and hearing notices, and has had ample opportunity to present any lawful claim to the property. The Defendants were properly notified to vacate the suit property See case of:- “***Kilimo – Versus - Malenya [2023] KEELC 19331 (KLR)”*.** 4. The court finds the need to emphasize that the eviction is not punitive but remedial. It is designed to protect the Plaintiff’s lawful rights, enforce exclusive possession, and ensure that the Defendants cannot continue to occupy property to which they have no entitlement. ***ISSUE No. c). Who will bear the costs of the suit?*** 1. **It is well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of the legal action or proceeding in any litigation.** The Black Law Dictionary defines cost to means: - ***“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”***. 1. **The proviso of Section 27 [1] of the Civil Procedure Act, Cap. 21 provides that costs follow the event. It as** follows: - **“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or Judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order.”** 1. Furthermore, Rtd. Justice Richard Kuloba in his book **Judicial Hints on Civil Procedure, 2nd Edition, 2005**at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under Section 27 remains at the discretion of the court. 2. The award of costs is therefore not cast in stone but courts have ultimate discretion. In the case of:- “***Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya and Another (2016) eKLR”***, cited by the Respondent, the court cited the factors to be considered when determining the question of costs. The court held that: - ***“To my mind, in determining the issue of costs, the court is entitled to look at inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination,(v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of Constitution. In other wards the court may not only consider the conduct of the party in the actual litigation, but the matters which led to the litigation, the eventual termination thereof and the likely consequences of the order for costs.”*** 1. **In the instant case, the Plaintiff herein has successfully managed to establish his case against the Defendants. Thus, he is entitled to the costs of the suit to be borne by the** 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th Defendants thereof. 2. **Conclusion & Disposition** 3. Consequently, upon causing intensive analysis of the framed issues herein, the Honourable Court based on the principles of Preponderance of Probabilities and the balance of convenience, holds that the Plaintiff has been able to effectively establish and prove his case. For avoidance of doubt, the Honourable Court proceeds to make the following decisions and issues these orders:- 4. **THAT Judgment be and is hereby entered in favour of the Plaintiff against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th Defendants respectively as prayed in the filed Plaint dated 29th September 2023.** 5. **THAT a declaration that the Plaintiff is the absolute and legal registered owner of all that parcel of land known as Land Reference Numbers KWALE/SHIMONI/175 with all indefeasible rights, title and interest vested in him by Law – Article 40 ( ) & ( 2 ) of the Constitution of Kenya and Sections 24, 25 & 26 of the Land Registration Act. No. 3 of 2012.** 6. **THAT an order made that the Defendants were trespassers onto the land and hence should be evicted therein legally pursuant to the provision of Sections 152E of the Land Act, No. 6 of 2012.** 7. **THAT a permanent order of injunction be and is hereby issued against the Defendants, their servants, employees agents and/or any other person claiming under the Defendants to stop, cease, refrain from trespassing, erecting structures, alienating and/or otherwise dealing all that parcel of land known as Land Reference Number KWALE/SHIMONI/175.** 8. **THAT pursuant to the provision of Sections 152E of the Land Act, No. 6 of 2012 the Defendants shall give vacant possession of the suit land WITHIN THE NEXT NINETY (90) DAYS from the date hereof failure to which eviction shall issue.** 9. **THAT the costs of the suit be awarded to the Plaintiff to be borne by the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th Defendants jointly and severally.** **IT IS ORDERED ACCORDINGLY.** **JUDGEMENT DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……6TH …. DAY OF ………...JULY ………….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT AT KWALE.** **Judgement delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mwazighe Advocate for the Plaintiff. 3. Mr. Asige Advocate for the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th Defendants.