https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4770

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE NO. 338 OF 2014** **(FORMERLY HIGH COURT CIVIL SUIT NO. 205 OF 1990)** **JEREMIAH ISIGI alias LUGADIRU MUSABILI** **(SUBSTITUTED BY HUDSON DEMESI ISIGI)........ PLAINTIFF** **VERSUS** **THE ATTORNEY GENERAL** **ELAM CHOGO ………. DEFENDANTS** **JOSEPH OKOLO BUSHURU** **HESBORN KANJI IMBUDIRA** **JUDGMENT** **Background** 1. The Good Book, in Ecclesiastes 7:8 says that the end of a matter is better than its beginning. This suit was filed on 28th June 1990, and for numerous reasons, has been pending for over 36 years. It has been handled by fifteen Judges and a Commissioner of Assize. It was instituted by way of a plaint dated 27th June 1990. The plaint was amended severally resting with a further amended plaint dated 25th June 2018. The plaintiff pleaded that in 1966, he settled on land parcels known as Kakamega/Lugari/177 and Kakamega/Lugari/178, which he occupied and owned. That the 2nd defendant, Elam Chogo, was his neighbor and occupied land parcel No. Kakamega/Lugari/179, which shared a common boundary with the plaintiff’s land. 2. He further averred that on or about 20th June 1990, the 2nd defendant approached him with a land certificate for Kakamega/Lugari/179, purporting to show that the said parcel encompassed part of land parcel No. Kakamega/Lugari/178, which the plaintiff claimed belonged to him. It was the plaintiff’s case that during the survey and registration process, an error was made by alienating part of the former parcel No. Kakamega/Lugari/178 and adding it to the 2nd defendant’s parcel No. Kakamega/Lugari/179. That the subsequent mutation surveys and amendments to the Registry Index Maps did not reflect the true position on the ground. 3. The plaintiff also pleaded, in the alternative, that he had been in occupation and use of the disputed land for over twenty-six (26) years, farming the same, and had thereby acquired it by prescription. He accused the 2nd defendant of secretly and fraudulently annexing approximately seven (7) acres from parcel No. Kakamega/Lugari/178 and joining the same to parcel No. Kakamega/Lugari/179, thereby depriving him of his rightful ownership. 4. The plaintiff further pleaded that during the pendency of the suit, the 2nd defendant unlawfully subdivided Kakamega/Lugari/179 into Kakamega/Lugari/858, 859, 860 and 861. That Kakamega/ Lugari/859 was later subdivided, resulting in Kakamega/Lugari/1185 and Kakamega/Lugari/1186, with Kakamega/Lugari/1186 being transferred to the 3rd defendant, Joseph Okolo Bushiri. Further, that Kakamega/Lugari/861 was subdivided into Kakamega/Lugari/2566 and Kakamega/Lugari/2567, with Kakamega/Lugari/2567 being transferred to the 4th defendant, Hesborn Kanji Imbudira. 5. The plaintiff sought the following orders: 6. **The Director of Surveys be ordered to amend the registry index maps and preliminary index diagrams to reflect the true position as it is on the ground.** 7. **That in the alternative, the plaintiff be declared to have become the proprietor in fee simple of the whole of that piece of land formerly designated as Kakamega/Lugari/178 but now known as Kakamega/Lugari/177 as it existed in the original survey.** 8. **Costs and interest at court rates** 9. **A declaration that the survey plan “per se” is not conclusive on the precise position of any boundary unless fixed in accordance with Section 22 of the R.L.A Cap 300 and that the same should accordingly be rectified.** 10. **Any other relief the Honourable court deems just to grant.** 11. The 2nd defendant filed an amended defence dated 23rd July 2018 in opposition to the further amended plaint. He admitted that he owned land parcel No. Kakamega/Lugari/179 and stated that the plaintiff owned land parcel No. Kakamega/Lugari/177, which bordered his parcel. He however denied knowledge of the existence of land parcel No. Kakamega/Lugari/178, and further denied that the plaintiff owned such parcel of land. 12. He denied the proposition that parcel No. Kakamega/Lugari/179 encompassed any part of parcel No. Kakamega/ Lugari/178 as alleged by the plaintiff. That parcel No. Kakamega/Lugari/179 was an amalgamation of land parcel Nos. Kakamega/Lugari/181, 180 and 179, and therefore did not contain any portion of parcel No. Kakamega/Lugari/178. He also denied the allegations of fraud and put the plaintiff to strict proof thereof. 13. Further, that the Director of Surveys had conducted a proper survey and fixed the boundaries correctly and that it was the plaintiff who was seeking to interfere with the survey records for his own advantage. He also denied allegations that the plaintiff had ever occupied any part of parcel No. Kakamega/Lugari/179, stating that the disputed portion had remained fallow pending the hearing and determination of the suit. 14. Regarding the subdivisions complained of by the plaintiff, the 2nd defendant stated that he had subdivided his land into parcel Nos. Kakamega/Lugari/858, 859, 860 and 861 before the filing of the suit. The 2nd defendant further pleaded that the plaintiff’s claim was vexatious, frivolous and that the plaintiff was not entitled to the orders sought, since no mandatory statutory notice had been issued to the Attorney General before the suit was filed. He prayed that the plaintiff’s suit be dismissed with costs. 15. The 3rd and 4th defendants also filed a joint statement of defence dated 23rd July 2018, denying the plaintiff’s claim and the allegations of fraud and unlawful acquisition. They stated that they purchased their respective parcels, namely Kakamega/Lugari/1186 and Kakamega/Lugari/2567, after conducting due diligence and following the lawful process for acquisition of title. That they bought their portions from the 2nd defendant after the survey complained of by the plaintiff had already been carried out. They denied that their parcels formed part of parcel No. Kakamega/Lugari/178 and put the plaintiff to strict proof of the contrary. 16. They also denied the particulars of fraud pleaded against them and maintained that their titles were lawfully obtained. Further, that their parcels were not near the common boundary between the plaintiff and the 2nd defendant and thus, the plaintiff had no reasonable cause of action against them and prayed that the suit be dismissed with costs. 17. The 1st defendant did not file any response nor participate in the suit proceedings. 18. The suit proceeded to hearing through *viva voce* evidence. The plaintiff called three witnesses in support of his case whereas the defence called one witness. **Plaintiff’s evidence** 1. PW1 was Hudson Demesi Isigi, son of the deceased plaintiff, Jeremiah Isigi. He testified that he had been substituted in place of his late father and adopted the deceased plaintiff’s statement dated 31st March 2015 as his evidence in chief. He testified that the deceased plaintiff was allotted land parcels Kakamega/Lugari/177 and Kakamega/Lugari/178, while the 2nd defendant’s father, one Chogo Onyisa, was allotted parcels Kakamega/Lugari/179, 180 and 181. He stated that he settled on Kakamega/Lugari/177 in 1962 and had been in actual occupation and use of the land since then. That parcels Kakamega/Lugari/177 and 178 were amalgamated to become Kakamega/Lugari/177, while parcels Kakamega/Lugari/179, 180 and 181 were amalgamated to become Kakamega/Lugari/179. That parcels 177 and 179 shared a common boundary. 2. It was his evidence that in 1990, the 2nd defendant, in the company of surveyors, entered the plaintiff’s land and caused demarcations to be made, thereby alienating part of the plaintiff’s land and placing it under parcel No. Kakamega/Lugari/179. That the survey records and Registry Index Maps did not reflect the true position on the ground, as part of parcel No. 178, which had been amalgamated with parcel No. 177, was wrongly reflected as forming part of parcel No. 179. He relied on the maps and the report prepared pursuant to a court order for the Land Registrar and Surveyor to visit the site, which to him, confirmed that parcel No. 178 had been alienated and placed under parcel No. 179. 3. PW1 also testified that the 2nd defendant had caused parcel No. Kakamega/Lugari/179 to be subdivided during the pendency of the suit, resulting in several parcels, including parcel Nos. Kakamega/Lugari/858, 860, 861, 2566, 1185 and 1186. He produced the grant of representation, two maps, and reports from the Land Registrar and surveyor. 4. Upon cross-examination, PW1 stated that he had sued the Attorney General as the representative of the government departments involved, since the Land Registrar was the custodian of the maps. He maintained that the plaintiff had title and occupation on the ground, but part of parcel No. 178 had been given to the 2nd defendant on the map. He stated that the allotment letters were issued in 1962, titles issued later by the Lands office, and that the plaintiff discovered in 1990 that the 2nd defendant wanted to take part of their land. 5. PW2 was David Masila Kimaulo, the Deputy Land Registrar, Kakamega County. He produced records relating to Kakamega/Lugari/177, 178 and 179. He stated that the said parcels were previously registered under the Settlement Fund Trustees. He testified that parcel 177 was registered in the name of Jeremiah Lugadiru Musambili on 17th October 2017 and measured 10.5 hectares, while parcel No. 179 was registered in the name of Elam Chogo Libabu and measured 27.0 hectares before it was closed upon subdivision into parcels 858, 859, 860 and 861. That parcel 178 measured 0.90 hectares and was still registered under the Settlement Fund Trustees. That they had discharge for parcel 177 in the parcel file, but it was not registered in the green card. PW2 produced a certified copy of the Registry Index Map for parcels 178, 179, 180 and 181, and that from the original map, parcel 178 had not been interfered with. However, that the mutation relating to parcel 179 showed some slight difference when compared with the registry index map, and that there appeared to have been changes which were not recorded in their office. He produced the Registry Index Map; and green cards for parcel Nos. 177, 178 and 179. 6. On cross-examination, PW2 stated that he had no record showing amalgamation of the parcels. He confirmed that parcel 179 directly neighbored parcel 178, and that there was a point at which parcel 177 abutted parcel 179. He also stated that he had not visited the ground and had not prepared any report on alleged encroachment. On re-examination, he stated that parcel 177 was registered in favor of Jeremiah after the necessary documents were received, and that save for the non-registration of the discharge, the registration was otherwise proper. 7. PW3 was Eliab Kamaru, the Deputy Director, Land Adjudication and Settlement in Nairobi. He testified that according to the records, parcel 177 was originally allocated to Jeremiah Isigi, parcel 178 to Silingi Kegome, parcel 179 to Kilave Kebeya, and parcel 180 to Chogo Onyisa. That during the planning and survey of the settlement scheme, some parcels were found unsuitable for agriculture, leading to amalgamation and movement of some parcel numbers. That parcels 177 and 178 were amalgamated and given to Jeremiah Isigi as parcel 177, while parcels 179, 180 and 181 were merged to form parcel 179. He stated that after the final survey, parcel 177 measured 10.5 hectares, while parcel 178 was moved elsewhere and measured 0.9 hectares. 8. He also informed court that after the final survey was completed and published in 1982, the final area list, allocation list and map reflected the changes made. He stated that the boundary between parcels 177 and 179 changed after the final survey, and that the common boundary between the two parcels was not a straight line. On cross-examination, PW3 stated that parcel 179 did not contain any part of parcel 178. That parcel 179 was transferred from Chogo Onyisi to Elamu Chogo, although the allocation list showed parcel 179 as having been allocated to Kilave Ebeywa. On re-examination, he stated that it was not clear how the property moved from Kilave Ebeywa to Chogo, and thereafter to Elamu Chogo. That marked the close of the plaintiff’s case. **Defence evidence** 1. DW1 was Elam Chogo Libabu, the 2nd defendant. He adopted his statement dated 23rd July 2018 as his evidence in chief and produced the documents in his list of documents of even date as exhibits. He also produced the statements of Joseph Okolo Bushiri and Hesborn Kanji Imbudira as part of the defence evidence. It was his evidence that he was allocated parcel Kakamega/Lugari/179 by the Settlement Fund Trustees, and that the said parcel was an amalgamation of parcels 179, 180 and 181, measuring approximately 27 hectares. He denied that parcel 179 contained any portion of parcel 178, and stated that parcel 178 was contained in map sheet No. 4 within the Lugari Settlement Scheme. He maintained that the amalgamation process was undertaken by the Director of Surveys and not by himself. Further that the 3rd and 4th defendants’ parcels don not form part of the disputed parcel. He produced allotment letter; map dated April 1982 and search for parcel 178 2. Upon cross-examination, DW1 stated that the allotment letter referred to parcels 179, 180 and 181, which were later consolidated into parcel 179. He stated that he knew the plaintiff owned parcels 177 and 178, which were also consolidated to form parcel 177, but stated that he did not know the location of parcel 178 on the ground. He further stated that he did not claim parcel 178 and had no objection to the court awarding parcel 178 to the plaintiff. DW1 further testified that parcel 179 was subdivided into parcels 858, 859, 860 and 861 on 18th July 1990. He stated that parcel 859 was later subdivided into parcels 1185 and 1186, with parcel 1186 being transferred to the 3rd defendant, while parcel 1185 remained in his name. He also testified that parcel 861 was subdivided and that the portions sold to the 3rd and 4th defendants but that the same did not border the disputed portion. He denied subdividing the land to defeat the plaintiff’s claim and maintained that the disputed portion formed part of parcel 179. That marked the close of the defence case. 3. The court directed parties to file and serve submissions. On record are submissions dated 25th August 2025, filed by the plaintiff and joint submissions, filed by the 2nd, 3rd and 4th defendants dated 31st October 2025, both of which the court had dully considered. **Plaintiff’s submissions.** 1. The plaintiff submitted that the plaintiff’s claim concerned the original land parcel Kakamega/Lugari/178, which was merged with Kakamega/Lugari/177 to form the larger parcel Kakamega/Lugari/177 registered in the plaintiff’s name. He submitted that, similarly, the 2nd defendant’s parcels Kakamega/Lugari/179, 180 and 181 were merged to form the larger parcel Kakamega/Lugari/179. According to the plaintiff, the dispute arose in 1990 when the 2nd defendant laid claim to a portion of land which, though forming part of Kakamega/Lugari/177 on the ground, had erroneously been reflected on the map as part of Kakamega/Lugari/179. 2. He maintained that the disputed portion was clearly identifiable on the ground and had always been occupied by the plaintiff, who planted mature gum trees thereon. That the anomaly on the map was caused by the 1st and 2nd defendants, resulting in part of the land formerly known as Kakamega/Lugari/178 being swallowed by Kakamega/Lugari/179 on the registry map, despite the same forming part of Kakamega/Lugari/177 on the ground; and prayed for the court to order rectification of the survey records so that the map corresponds with the actual position on the ground. 3. It was his contention that the 2nd defendant acted in bad faith by subdividing Kakamega/Lugari/179 during the pendency of the suit into Kakamega/Lugari/858, 859, 860 and 861, and later caused further subdivisions resulting in parcels Kakamega/Lugari/1185 and 1186, as well as Kakamega/Lugari/2566 and 2567. He submitted that parcels 1186 and 2567 were transferred to the 3rd and 4th defendants respectively, with the intention of changing the character of the suit property and defeating the cause of justice. 4. The plaintiff further submitted that the 2nd defendant’s reliance on the official search for Kakamega/Lugari/178 measuring 0.90 hectares and registered in the name of the Settlement Fund Trustees was misleading. According to the plaintiff, that parcel was not the original Kakamega/Lugari/178 which had been merged with Kakamega/Lugari/177. He relied on the evidence of PW3, who clarified that after the original parcel 178 was amalgamated with parcel 177, another parcel bearing the No. 178 was created elsewhere and remained registered in the name of the Settlement Fund Trustees. 5. The plaintiff placed reliance on the report prepared by the District Land Registrar following a site visit ordered by the court. He submitted that the report confirmed that the disputed portion formed part of the original Kakamega/Lugari/178, and that subsequent subdivisions caused Kakamega/Lugari/179 to encroach onto that portion. It was his submission that he had proved his case on a balance of probabilities and prayed for the court to enter judgment in his favor with costs. **2nd, 3rd and 4th defendants’ submissions.** 1. The 2nd, 3rd and 4th defendants submitted that the plaintiff had failed to establish his claim on a balance of probabilities. They contended that the plaintiff did not adduce any boundary dispute report confirming that the 2nd, 3rd or 4th defendants had encroached onto his land. It was their submission that the evidence on record did not show that land parcel No. Kakamega/Lugari/179 contained any portion of Kakamega/Lugari/177 as alleged by the plaintiff. 2. The defendants further submitted that the evidence from the Director of Survey confirmed that the boundaries between Kakamega/Lugari/177 and Kakamega/Lugari/179 were as reflected in the original index map. They argued that the plaintiff’s own evidence did not support the allegation of interference with the registry index map, and that the amalgamation of parcels did not result in any overlap. According to them, Kakamega/Lugari/177 was an amalgamation of parcels 177 and 178, while Kakamega/Lugari/179 was an amalgamation of parcels 179, 180 and 181. 3. They submitted that the plaintiff’s claim was, in substance, a boundary dispute, and that in the absence of a report from the County Land Registrar and County Surveyor confirming encroachment, the plaintiff had laid no legal basis for the orders sought. Further, that the plaintiff failed to disclose that by the time the suit was filed, Kakamega/Lugari/179 had already been subdivided into Kakamega/Lugari/858, 859, 860 and 861 in the year 1990. 4. With regard to the 3rd and 4th defendants, it was submitted that the plaintiff had not laid any basis for joining them to the proceedings, and had not adduced any evidence linking them to the alleged encroachment or fraud. The defendants maintained that the 2nd defendant lawfully occupied Kakamega/Lugari/179, which did not contain any portion of the plaintiff’s land, and that the subdivisions were not done to defeat the plaintiff’s claim. They prayed for the court to dismiss the plaintiff’s suit with costs. **Analysis and determination** 1. The court has considered the pleadings filed, evidence tendered by each party and rival submissions made. The issues that arise for the court’s determination are; 2. **Whether the Registry Index Map *per se* in respect to parcel Nos. Kakamega/Lugari/177 and Kakamega/Lugari/179 is not conclusive authority on the position and boundaries regarding the two properties, unless fixed.** 3. **Whether the Registry Index Map prepared by the Director of surveys upon consolidation of parcel Nos. Kakamega/Lugari/179, 180 and 181 unlawfully annexed part of parcel No. Kakamega/Lugari/178 to create the new parcel No. Kakamega/Lugari/179.** 4. **Whether the Director of surveys made an error in the creation of Registry Index Maps regarding parcel Nos. Kakamega/Lugari/177 and Kakamega/Lugari/179 by annexing part of parcel No. Kakamega/Lugari/178 to parcel No. Kakamega/Lugari/179.** 5. **Whether the 2nd defendant by fraud annexed part of parcel No. Kakamega/Lugari/178 to parcel No. Kakamega/Lugari/179.** 6. **Whether the said error if any, by the Director of surveys should be corrected by amending the Registry Index Maps in respect of parcel Nos. Kakamega/Lugari/177 and Kakamega/Lugari/179 to reflect the ground as occupied by the plaintiff.** 7. **Whether the plaintiff has acquired parcel formerly known as No. Kakamega/Lugari/178 by prescription.** 8. **Whether the plaintiff is entitled to the orders sought.** 9. It is not disputed that the suit properties herein being parcel Nos. Kakamega/Lugari/177 and Kakamega/Lugari/179 were part of property owned by the Settlement Fund Trustees having been part of Lugari Scheme and which was allocated in the 1970s. The letter of allotment produced by the 2nd defendant allocating him parcel Nos. 179, 180 and 181 is dated 7th January 1974. 10. The Agriculture Act Cap 318 (repealed) provided for the establishment and management of Settlement Schemes in Kenya. Under section 167 of the Act, the administration of Land Settlement programs was carried out by the Settlement Fund Trustees (SFT), which was a corporate body mandated to purchase land and settle landless Kenyans on unalienated Government land or private land. Currently, the establishment and administration of Government settlement schemes are guided by part IX (Sections 134 and 135) of the Land Act 2012, which mandate the National Land Commission and National or County Government boards to facilitate the settlement programs. 11. Although before the enactment of the Land Act 2012, there was no clear legal framework providing the procedure for allocation of land in settlement schemes under the Agriculture Act, generally, the process began with identification and purchase of land, then a ground status survey report by the District Land Adjudication and Settlement officer was prepared and sent to the Director Land Adjudication and Settlement. The land would then be planned, surveyed and the resultant survey used to guide the allocation to the identified beneficiaries. 12. The evidence in this matter as per the letter dated 7th January 1974 from the Settlement Fund Trustee addressed to the 2nd defendant, confirmed the allotment of parcel Nos. 179, 180 and 181 to the 2nd defendant and undertook to transfer the freehold interest therein to the defendant as and when the Director of Surveys completes the survey and deed plans in respect thereof, specifying the exact area and boundaries. 13. It is therefore apparent that the intention of the Settlement Fund Trustees was that allotment preceded survey and issuance of deed plans, which would state the precise boundaries of the land allocated to the beneficiaries of the Scheme. 14. From the documents presented by the parties herein, none presented deed plans. They both presented Registry Index Maps (RIMs) which means that what they got were general boundaries and not fixed boundaries which was contrary to what was communicated in the allotment letters as no deed plans were ever prepared. 15. It is not disputed that the parties herein, like every other beneficiaries of the Lugari Scheme upon issuance of their respective letters of allotment, took possession of their respective parcels. It was not disputed and was confirmed by PW3 the Director Land Adjudication and Settlement, that parcel No. 177 was amalgamated with parcel No. 178 to create a new parcel was No. 177 allocated to Jeremiah Isigi the plaintiff. On the other hand, parcel Nos. 179, 180 and 181 were amalgamated to create parcel No. 179 allocated to the 2nd defendant. The people who had previously been assigned the ground where parcel Nos. 178, 179 and 181 were relocated and their parcel numbers shifted to a new ground. These were Silingi Kegome, and Tilave Kebeya. PW3 confirmed that the final survey was done in 1982. That the amalgamation was done when the owners were already in occupation. He produced the final area list for Lugari as well as the Registry Index Map made in 1982. 16. I have considered the two maps produced by the plaintiff. The first map PEXB 2 shows parcel Nos. 177, 178, 179, 180 and 181. This was before the amalgamation. The second map shows parcel Nos. 177 and 179 after the amalgamation. From the first map, parcel No. 178 abutted four linear boundaries of parcel No. 179, and also abutted the main road separating parcel Nos. 129 and 178. Thus, topographically, an “arm” of parcel No. 179 projected into and or towards parcel No. 178. However, on the second map, produced by the Director Land Adjudication and Settlement, which reflects the final survey upon amalgamation done in 1982, it is clear that part of what was previously known as parcel No. 178 was annexed to parcel No. 179 thus distorting what originally appeared to be an “arm” projection. The plaintiff testified that the annexation in the map excised 7 acres from his parcel No. 178. 17. This court ordered the district Land Registrar and surveyor to visit the two suit properties and ascertain the position. The District surveyor visited the properties on 6th November 2013 in the presence of the parties. The findings were that the disputed portion marked “a, b, c d” as shown in the sketch attached to her report dated 13th February 2014, belongs to parcel No. 178 being 1.5 Ha, but that the same was made part of parcel No. 179 after amendment of the new subdivision. She recommended cancellation of the new Nos. 858 – 861. The District surveyor found that the disputed portion was not in use by any of the parties herein. 18. Besides the report of the District Surveyor, the Land Registrar one Monicah J. Boor also visited the two properties and heard the parties over the dispute. Her findings were that the occupation on the ground by the parties reflected the Original Map Sheet 2, that essentially, the disputed portion marked “a b c d” on the sketch map was part of parcel No. 178, but that during subdivision of parcel No. 179, that parcel encroached onto the disputed portion of parcel No. 178. 19. The Land Registrar recommended that the original boundary be restored and proper map amendments be done and the resultant numbers following the subdivision of parcel No. 179 be cancelled and title deeds issued be nullified. 20. From the evidence of the defendant and more specifically the map produced by the defendant as well as the register for parcel No. 179, the same was subdivided into four portions being 858, 859, 860 and 861 and subsequently subdivided creating title Nos. 1186 and 2567 registered in the names of the 3rd and 4th defendants among other titles. That subdivision was predicated on the map created after amalgamation in 1982. 21. Article 40 (6) of the Constitution of Kenya protects the right to acquire and own property only in respect of lawfully acquired property. In this case, the addition of part of formerly parcel No. 178 to parcel No. 179 was unlawful, and without any legal justification. Left unaddressed, it amounts to unjust enrichment on the part of the defendants. 22. It is not in dispute that the defendants are the registered proprietors of the parcels arising from the subdivision of parcel No. 179. The map in respect of the said parcel consists of land unlawfully hived from parcel No. 178, thus depriving the owner of parcel No. 177 of his land. 23. 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. It therefore follows that registration of land vests in the owner, absolute and indefeasible rights unless it is proved that such registration was acquired through fraud, misrepresentation, want of proper procedure, illegality or corruption. 2. In the instant case, the title which was registered in the 2nd defendant’s name being parcel No.179 is associated with a Registry Index Map that unlawfully excised a portion of land measuring 1.5 Ha from parcel No. 177 belonging to the plaintiff. The two maps produced herein clearly show that the position before amalgamation is different from the position after amalgamation of parcel Nos. 177 and 178 on one hand and parcel Nos. 179, 180 and 181 on the other hand, which ought not to have been the case. 3. Therefore, the Registry Index Map created in 1982 in respect to parcel Nos. 177 and 179 did not reflect the intention of the amalgamation which was to combine on one hand only the 2nd defendant’s land as a separate entity from the plaintiff’s land. This map distorted the true position by annexing a portion measuring about 1.5 Ha from the parcel previously known as No. 178 to parcel No. 179. For those reasons, title for parcel No. 179 was not lawfully and procedurally obtained. The ground also confirms the unlawful annexation. I take the view that the position on the ground and that on the original map before amalgamation in respect of the two parcels being parcel No. 177 and 179 take precedent over the Registry Index Map created in 1982 after the amalgamation. Therefore, what needs to be corrected is the Registry Index Map and not the ground. 4. For the above reasons, and the fact that the defendants’ titles having arisen from a title which was created through unlawfully deprivation of the plaintiff of part of his land, I find and hold that all the defendants’ titles were unlawfully acquired, and ought to be nullified. On that basis also, the Registry Index Map ought to be corrected to show that parcel No. 179 was an amalgamation of parcel Nos. 179, 180 and 181 only and did not include part of parcel No. 178. 5. Regarding fraud, it is trite that fraud should not only be pleaded but ought to be strictly proved. While there is evidence that the map made in 1982 in respect to boundaries between parcel 177 and 179 was unlawfully done, as it failed to reflect the amalgamation of the 2nd defendant’s land only, but unjustly excised part of parcel No. 177 to the 2nd defendant, the same was done by the Director of surveys. No evidence of fraud was demonstrated as against the defendants. The argument that the annexation of the plaintiff’s land was done during subdivision is not correct as subdivision was done in 1990 while the amalgamation Registry Index Maps were created in 1982. I therefore find and hold that fraud was not proved against the defendants. 6. Regarding whether the plaintiff had acquired the disputed portion by prescription, I understand the plaintiff to be making a claim under adverse possession. 7. Adverse possession claim is predicated on provisions of the Limitation of Actions Act. Section 7 of the Limitation of Actions Act bars a person from bringing a suit for claim of land after twelve years, and provides as follows; **“An action may not be brought by any person to recover land after the end of 12 years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person.”** 1. Section 13 provides as follows; 2. **A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, whereunder Section 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.** 3. **Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.** 4. **For the purposes of this Section, receipt of rent under a lease by a person wrongfully claiming, in accordance with Section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land.”** Section 17 states as follows; **“Subject to Section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.”** Section 38 (1) and (2) provides as follows; **“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37 of the Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”** 1. Therefore, where a registered owner of land fails to assert their rights, when they have been dispossessed of their land by a trespasser who came on the land without force, secrecy or the owner’s permission, who has occupied the same openly and without interruption for 12 years, the former’s rights in the land becomes extinguished under the doctrine of adverse possession. Therefore, in such circumstances, an adverse possessor may move this court for such land to be registered in their name under the doctrine of adverse possession. 2. The rationale for adverse possession was stated in the case of **Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR** where the Court of Appeal cited with approval the case of **Adnam v Earl of Sandwich (1877) 2 QB 485** where it was held as follows; **“The legitimate object of all statutes of limitation is in no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principles that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for a long time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties.”** 1. Therefore, on the expiry of 12 years, a person who has disposed the true owner of their land may apply to this court for an order that he be registered as owner thereof. 2. The principles of establishing adverse possession are now well settled. In the case of **Mbira vs. Gachuhi [2002] IEALR 137,**the court held as follows; **“……..a person who seeks to acquire title to land by the method of Adverse Possession for the applicable Statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and Adverse use by him or those under whom he claims for the statutory prescribed period without interruption.”** 1. Similarly, in ***Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR,*** the court described adverse possession in the following terms; **“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the Adverse Possession is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms;** **“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”** 1. It therefore follows that to claim land under the doctrine of adverse possession, a claimant ought to prove that they have been in exclusive possession of the land peacefully, openly, continuously, without force, publicly and without the owner’s permission for a period of 12 years. 2. A claim for adverse possession is made by a trespasser against the true owner. A claim anchored on adverse possession and allegations of fraud cannot coexist. In the instant case, the plaintiff maintained that he was the true owner of the disputed portion and even went further to accuse the defendants of fraud. A true owner of land cannot sustain a claim for adverse possession. In any event, the amalgamation was done in 1982, while this suit was filed in 1990, which is a period of 8 years and therefore the statutory period of 12 years had not lapsed. For those reasons, the plaintiff did not prove having acquired the disputed portion of land through prescription. 3. In the premises, I am satisfied that the plaintiff has proved his case on the required standard and the same is hereby allowed as follows; 4. **A declaration is hereby made that the Registry Index Map created upon amalgamation in respect of parcel Nos. Kakamega/Lugari/177 and Kakamega/Lugari/179 *per se* is not conclusive on the precise position of the boundary thereon unless fixed in accordance with Section 19 of the Land Registration Act.** 5. **The subdivision of parcel No. Kakamega/Lugari/179 having been predicated on an unlawful amalgamation as captured in the Registry Index Map of the said parcel, is hereby cancelled and all titles arising therefrom being Nos. Kakamega/ Lugari/858, 859, 860, together with all resultant titles therefrom, including title Nos. Kakamega/Lugari/ 1186, 1185, 2666 and 2667 are hereby cancelled.** 6. **The Director of Surveys is hereby ordered to amend the Registry Index Maps and Preliminary Index Diagrams regarding parcel No.s Kakamega/Lugari/177 and Kakamega/Lugari/179 to reflect the true position as it is on the ground and as captured in the Kakamega Land Registrar’s report dated 2nd May 2014 and the Kakamega County Surveyor’s report dated 13th February 2014.** 7. **The costs of this suit are awarded to the plaintiff and shall be borne by the 2nd defendant.** 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 15TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Shilisia holding brief for Mr. Manyoni for the 2nd to 4th defendants Mr. Mukavale J. for the plaintiff No appearance for the 1st defendant Court Assistant- Delphine