https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2917

Kooro v Ogola (Environment and Land Case E002 of 2022) [2026] KEELC 2917 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELC 2917 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Environment and Land Case E002 of 2022 AE Dena, J May 15, 2026 Between John Awalla Kooro Plaintiff and Washington Odhiambo Ogola Defendant Judgment 1.John Awalla Kooro (The Plaintiff) vide an amended plaint dated 25/9/2023 seeks the following reliefs against Washington Odhiambo Ogolla (the Defendant); -a.A declaration that the plaintiffs are the rightful owners of the land parcel known as Siaya/Nyangoma/4601 also known as Bondo/Nyangoma/4601, Nyangoma adjudication section.b.An order to issue to evict the Defendant from land parcel known as Siaya/Nyangoma/4601 also known as Bondo/Nyangoma/4601, Nyangoma adjudication section and demolition of all houses and structures thereon.c.A permanent injunction restraining the Defendants their agents, servants, assigns, relatives or whomsoever claiming title or acting on their behalf from remaining in occupying continuing to occupy constructing a structure on the same selling trespassing and or encroaching and in other manner interfering with the land parcel no. Siaya/Nyangoma/4601 also known as Bondo/Nyangoma/4601, Nyangoma adjudication section. Siaya/Nyangoma/4601 adjudication sectiond.Cost of this suite.Any other relief this court may deem fit to grant. 2.The Plaintiffs case is that he is the legal owner of the parcel 4601 above that he inherited from his late father Zadok Ooro Okiri. The defendant is his neighbour in parcel Bondo/Nyangoma/3534 Nyangoma adjudication section. The parcels have a common boundary. The defendant without permission trespassed into the plaintiff’s land and constructed a permanent structure claiming that it was part of the defendant’s father’s land. The plaintiff lodged a complaint with Land Adjudication Office Bondo who visited the site to determine the boundary dispute and it was found that the defendant had encroached into parcel 4601(herein suit parcel) and was ordered to vacate therefrom. The defendant has to date not vacated denying the plaintiff his right to develop and quiet enjoyment of the land. 3.The Defendant in his Amended Statement of Defence & Counterclaim dated 1/3/2024 confirms that he indeed occupies Bondo/Nyangoma/3534 having inherited the same from his father James Ogola Nyawal. That the plaintiffs were immigrants through their grandfather Zadock Ooro who settled in the suit land at the pleasure of the defendant’s grandfather. That during adjudication the plaintiff’s father was only left with their homestead which did not extend to parcel 4601. 4.The Defendant further avers that the Land Adjudication & Settlement Officer Siaya one Mr. J.M. Ndubi noted that the defendant’s clan (Wawaye People) had exercised their rights of over the suit parcel for 16 years from 1974 without the plaintiff’s clan (Kachuje people) taking any steps to evict the Wawaye people. He then ruled that the land be demarcated and recorded to Wawaye people and the Kachuje people were at liberty to lodge committee cases. That subsequently the Magistrate who heard the appeal in L.C. No. 21/65 Bondo Court case testified confirming that he had given Nyakakwa Onyango only the homestead as sketched by Bondo Court in L.C. No. 21/65. The Defendant avers that any attempt by the Plaintiff to claim more than the homestead is illegal. 5.It is further averred that Nyakwaka Onyango is the plaintiff’s grandfather and it is the same land (homestead)that the plaintiff ought to have inherited. 6.According to the Defendant if indeed the Plaintiff’s grandfather has been the owner of the suit parcel, then this was done fraudulently. The particulars of fraud are listed in paragraph 10 of the Amended Defence herein. That the Plaintiffs actions have caused the Defendant loss and damage. The Defendant therefore seeks by counterclaim the following prayers against the Plaintiff; -a.A declaration the plaintiffs title is fraudulent and should be revoked and cancelledb.An order directing the Registrar Lands Bondo to correct the fraudulent and illegal extension and alienation by the plaintiff.c.A declaration that the plaintiffs land only covers the area in which the Homestead is built on as was sketched out by Bondo Court in L.C No. 21 of 1965.d.A permanent injunction against the Plaintiff his agents and or servants from trespassing and or interfering in any other way upon the defendant’s propertye.Damagesf.Costs of the suitg.Any other relief deemed just and expedient. Hearing and Evidence 7.The case proceeded for hearing on 26th March 2025; 7th July 2025; 6/11/2025 and 12/11/2025 8.The Plaintiff, John Awaka Kooro testified as PW1, adopted his witness statement dated 25/9/2023 as his evidence in chief and produced the documents filed vide two lists of documents dated 27/10/2016 and 25/9/24 as PEX 1-17. 9.Cross examined PW1 stated that he was 50 years when adjudication took place in 1991. That before he moved to Ndiwa in 1996 he lived in the suit parcel. Though he was from the Kachuje clan he lives within the Wawaye clan. That Nyakwaka Onyango was from the Kachuje clan and they were cousins. 10.PW1 testified that he did not know if the Kachuje clan appealed the decision by J.M. Ndubi. He emphasized his land did not originate from parcels 1895 and 1898. 11.PW1 confirmed his father died on 25/12/90 and was recorded on 19/12/92 (Zadok Ooro Okwiri) which was two 2 years after his death. On being shown the letter dated 15/4/2016 (page 13 plaintiffs’ bundle) he pointed the letter refers to a Boundary dispute and not encroachment. That the letter dated 19/5/2016 was submitting a report on boundary verification which he lodged on his father’s behalf. He conceded the letter signed by Winfred J. Ngutu (page 53 of plaintiff bundle) confirms there was encroachment by the defendant and also mentioned about the existence of a road between the two parcels. The witness conceded he did not have documents on how his father’s title came into being. 12.PW1 indicated in re-examination that his land was not mentioned in the case between the Kachuje and Wawaye neither were any of his ancestors. 13.PW2 was Floyce Ochieng Director Land Adjudication Settlement. She confirmed PEX 2,3,4,5 and 12 originated from their office. That during demarcation and survey parcel 3534 came first and 4601 followed later. That from her work experience land committee members comprised 25 elders who usually oversee the exercise of demarcation and survey. That upon demarcation and survey of a parcel of land identified by the presumed land owners the owners of 3534 and 4601 were given a chance to complain on the spot. The identified land is then drawn and issued with a number which informed the parcel numbers in the letters 24.05.2016 (see page 15 & 16) and which confirms that there were no pending cases or encumbrances, at the point of writing. 14.The witness added that the owners of the land are given a period where they can file objections if they feel their land was not adjudicated well. She stated the boundary dispute between 3534 and 4601 was lodged by Zadock (deceased). The department planned a site visit summoned the affected people through the assistant chief Uyawi which was served upon all parties. A visit was done by one of the surveyors who prepared a report which was forwarded to the various parties summoned. 15.She testified the report confirms encroachment and confirms there’s a road and that the Defendant had built a house within the land. To her the owner of 3534 seems to claim a portion of 4601 which in her view is not a boundary dispute but a claim for land ownership. She presumed the defendant father signed the land adjudication record. There were no recorded cases lodged at their office by the defendant to date. That since there is no brace the two parcels are independent parcels on the map. 16.Cross examined PW2 confirmed from the documentation presented demarcation process was undertaken in 1990 though she was employed in 2006. That the time difference of two years between registration of the parcels 3534 and 4601 was normal as it depends on how the surveyors plan their work and the readiness of the people on the ground. That adjudication cannot be done on the same day for everyone. Further during recording the names are recorded as given regardless of who was dead. That the map sheet currently in use was No.37 and both plots 3541 and 4601 were reflected therein. 17.PW2 told the court that when a parcel is on the edge of a map during demarcation recording and survey it can be shown to be appearing on two maps and which is not an alteration. She however clarified that the road in the sketch was not reflecting in the map sheet. She further testified with regard to Nyalwals parcel an easement “a 5-meter road passes through the parcel and which corresponds with the sketch map. She confirmed the titles were prepared in Nairobi and mistakes could have occurred. She however did not think the disparity moved a portion of the defendants land into the plaintiff’s land. 18.PW2 further noted that Zadock Ooro Okwiri title does not show any easement and its map sheet is given as no. 36.37 meaning the parcel appears at the edge and therefore it will appear on more than one sheet in the preliminary index diagram and when merged it would appear as one parcel. 19.PW3 was Emily adhiambo the Sub County Surveyor in charge of Bondo, Rarieda and Usigu. According to their maps parcel 3534 is located in Nyangoma Adjudication diagram sheet No. 37 which is the current map, a road passes through it at the edge of the parcel but within the parcel. It also passes through plot 3532. It was her testimony that parcel 3534 and 4601 are separated by a road. That where a title indicates that a road passes through then it means the same divides it (3524) into two. However, where there is a road between two parcels that is never defined – it separates two different titles. 20.The witness explained that according to the map parcel 3534 does not cross into 4601. On the sketches on the adjudication record (page 24 defendants’ bundle) the same did not indicate any road on parcel 4601. However, 3534 has a road that is passing through and brace which means a road was meant to pass through. She noted that the road is still there in the map though it has been pushed to the edge. In explaining the move/shift PW3 stated she compared the adjudication record for adjacent plot 3533,3532 and 3531 which showed they had braces of the same road passing through them. 21.The court was told that during adjudication there was proposed to be a road passing through 3534, 3533,3532 and 3531 and the same would be dividing them into two and were braced accordingly. PW3 added however that the road above was never effected though she was not aware of the reason except that for 3534 it was pushed to the edge. That where a proprietor wants to move a road so that it doesn’t cut through the parcel, she/he must apply to realign the same. The office must first determine if the road was published or not. That there has been no such application from the proprietor of 3534. She stated if the road was never published there would be no need for an application. 22.PW3 testified further that where one has a title indicating a road passing through but which does not appear on the map it is upon them to apply requesting for the survey office to go and define for them the position of the road. Upon visit the emerging report is used to put the record straight. That no such application was received from the owner of 3534. However, the parcel is still in its original state as at adjudication and has not been subdivided. 23.Upon cross examination the witness confirmed according to the sketches there were proposed roads but from the map the same were not implemented. She had no document to show that the sketch for parcel 3534 was altered or realigned. The road on 3534 was a 5Meter road the smallest there can be. On the title deed of the same issued in 2017 (page 30 defendants’ bundle) vis a vis the easement shown overleaf the witness stated it’s the same road reflected in the sketch done in 1990 and therefore confirms the details of the sketch map. The witness could not confirm if there was a problem as neither the sketch map nor the title have been changed. She stated that the road cutting through 3534 is not the same road running on the map sheet between 3534 and 4601 neither was it the one in the easement. 24.On being referred to the sketch for 4601 the witness conceded it is not neighbored by 3534. She noted that the entries for the sketch 3534 were done in 1990 and 4601 in 1992 a difference of two years. Though she could not tell the acreages from the sketch she conceded the same is usually given during adjudication. 25.The witness indicated in cross examination that the office can only do a correction on application and visiting the ground to confirm whether the road cutting through the parcel and the one running along 4610 are different. 26.PW4 was Diana Nasimiyu Wanyama an advocate of this court and Land Registrar at Bondo Land Registry. She confirmed she was familiar with the parcels as they fell within her jurisdiction. She indicated she was not aware of any fraudulent activities as averred in the counterclaim in relation to parcels 3534 and 4601 as there was no complaint in their records. Responding to the allegation that the boundary for 4601 was extended unprocedurally she stated there is no complaint in this regard. That she would not know if there was such extension as she was not the custodian of the map. Her records show the acreages are intact. The consent from the defendants’ grandfathers as stated in paragraph 10(b) of the defence was not a requirement. That where succession involved 4601 the proprietor does not require the consent of the owner of 3534. 27.On being shown Map sheet 37 PW4 stated that parcel 3534 does not share a boundary with 4601 and there was a road separating the parcels. According to her records the parcels were in their original since there was no record indicating the boundaries were changed. In response to Paragraph 10 (e) of the defence she stated the first registered owner is Zadock and no objection/appeal is registered against the title which was a requirement in the event there was any. Since 2017 there is no application by the Defendant for rectification of the record. She confirmed she had no training on survey. 28.The witness was cross examined. She testified that she was aware there was no limitation on fraud. That adjudication process is different from the process of registration of title. Ascertainment of whether the adjudication process was proper is done by the Chief Land Registrar and her role was to issue title deed upon such ascertainment and instructions of the Chief Land Registrar. On being referred to the report on the dispute between Wawaye and Kachuje (page 10-20 of the defendant’s bundle) and reference to the decision in favor of Wawaye clan, letter dated 22/2/1990 and the option given for appeal thereof, the witness stated there was no appeal or restriction in the records. 29.PW4 indicated Mr. Ndubis letter did not make reference to a specific parcel number. She found nothing wrong with the title being in the deceased name because this would await succession. She stated that adjudication records do not include a demarcation map. That she found no issue with the registration under Zadock (deceased) since the title must be registered as such until succession is done. The witness could not confirm if there was an error on the map sheet 37 failing to show a road on parcel 3534 but conceded this would create confusion. 30.PW4 testified that it was normal for the titles to be signed and dated on the same date the register is opened as they were issued under the National Titling Program. On the bar codes in the titles, she indicated the numbers were random. She clarified in reexamination that in the absence of succession documents being furnished to her office she would not know if the proprietor is deceased. That the land registry uses the serial numbers and not bar code. 31.PW5 was Patrick Opiyo Adero a licensed surveyor practicing in Kisumu and of over 40 years’ experience. The witness testified on his report (PEX11) dated 30/9/2023. 32.Cross examined he stated he prepared the report using mapsheet No. 38 which he later clarified in reexamination was sheet 37. He noted the report does not indicate the acreage since what was in issue was the structures vis a vis the physical boundary. He agreed the map sheet on title 3534 is No. 37. On the google map he noted that ZO house was a small portion of 4601. He conceded there was a vacant portion which he did not assign a name though numbered 4601. He disagreed that there was a road both on the lower and upper side of plot 3534 though he agreed the map had a road and a title. 33.The witness stated that the fact that the road was missing on the map sheet was a mistake on the Director of Survey. He conceded he did not assign WO plot a number but the same was under 4601. He reiterated that he had indicated all plots as 4601 because the same are all homesteads under the said plot. He denied that his report was shallow and of little insignificant assistance to the court. He clarified in reexamination that A, B, C, D, E define an existing road and which separates the defendants and plaintiff’s land. 34.The Plaintiffs case was marked as closed. Defence Case 35.DW1 was Washington Odhiambo Ogolla. He adopted his witness statement dated 1/3/2024 and produced documents in the list of documents of even date as DExh 1-5. He testified that he was from the Wawaye clan while the Plaintiff was from Kachoje clan. The witness stated that he has built his house in parcel 3534 which belongs to his father’s James Ogolla Nyalwal. That his house is on the Northern side of the road seen in the sketch for plot 3534 and the road cut across the same and there was a continuation of the same. He noted however that from map sheet 37 plot 3534 is below the road and the northern portion is non-existent. He asked the court to allow the map to be relooked as it did not depict the truth and that he wanted to have what his parents left for him. 36.Upon cross examination the witness told the court he had not done succession for his father’s estate. That he built the house in 2016. He could not confirm that Wawaye gave land to the neighbors. That plot 3534 measures 0.98Ha about 2 acres. That it was not possible for someone to own 30 acres of land and then give it away and remain with only 2 acres. He reiterated the Plaintiffs took away the Defendants land and must return it. That he has never written to the NLC of their desire to have the land returned to him. 37.DW1 confirmed he did not lodge any complaint during adjudication but wrote to the land registrar Siaya on the issue. While he insisted the land was stolen from his family, he never reported the issue to the police neither did he make a report against the land officials Bondo for helping the Ooro’s to steel the land. He acknowledged the surveyors report shows he never built within Ooros land. That he had no survey report to confirm he lives in parcel 3534. 38.He added that the plots 3534 and 4601 are not mentioned in the cases but denied that the same was because the cases dealt with different parcels namely 1895 & 1898. He agreed he had no evidence to show the present suit property derived from 1895 & 1898 though he has a witness to confirm the issue. He conceded he was Luo but could not confirm if under the luo culture one could inherit a cousin’s property. 39.He testified that it was not possible that the road was to give access to plot 3522. That all his neighbors have a road entry in the parcels. He denied that plot 3522 was given another road and which was the reason why the road to his parcel was never opened. 40.DW 2 was RICHARD OKWEMBA AMOLLO, a retired civil servant living in Nyangoma. He adopted the witness statement dated 1/3/2024. On the proceedings between Wawaye and Kachoje clan he confirmed he knew the plaintiff and defendants therein who were respectively from Kachoje and Wawaye clans. That Martin Amolo (the defendant’s grandfather) represented the Wawaye clan while Nyakwaka Onyango who was related to the Plaintiff represented the Kachoje clan. He told the court the Plaintiff never appealed the decision. That he himself participated in the adjudication exercise and was 42 years at the time. The Defendant did not participate as he was young then. 41.DW2 further testified that Washingtones home not in the plaintiff’s land. Commenting on the road on the sketch and title deed for James Nyalwal (25/4/2017) and the easement in part A thereof the witness confirmed that what is in the title (road passing through) is what is on the ground as he hailed from the same area. He stated that the parcel 1895 and 1898 had nothing to do with the proceedings presided by Mr. Ndubi as they were given before the adjudication process started in the area. That as at 22/2/1990 only Nyakwaka Onyango had lodged appeal. He reiterated on being shown map sheet 37 that it does not depict the position on the ground since the road was not crossing through parcel 3534 but was outside the same. 42.Cross examined the witness stated that he did not participate in any of the cases between the two clans. The proceedings do not mention any parcel numbers though his evidence that Washingtone was allocated 3534 was derived from the title. He confirmed that plots 1895 and 1898 were not subject of the case between the two clans. He stated pursuant to the decision in the case pitting the two clans his clan occupies the entire land. Though Achola now deceased was occupying part of the land his beneficiaries are not parties to the present suit. He confirmed the Plaintiff is occupying part of the land as well and denied that Ooro occupied the land in 1940 before he was born. To him Ooro occupied the same in 1990 and for this period (35 years) the clan has not taken him to court. He stated the clan has never reported to the NLC historical injustices. With regard to the road, he stated he was not a land surveyor. 43.The witness told the court that the Kachujes clan never underwent adjudication and the Defendant was wrong to state they did since he was just a child then. He conceded titles cannot issue in the absence of survey. 44.With the above the defence case was marked as closed. Submissions 45.Parties filed and exchanged final submissions. The plaintiffs’ submissions are dated 20/11/2025 and the Defendants 4/2/2026. Plaintiffs Submissions 46.The plaintiff identified 4 issues summarized as follows; -Whether there was any fraud/illegality on part of the Plaintiff. It is submitted that the defendant never complained about the issues of fraud and never undertook any survey implying he was afraid the same would not be in his favor. On the other hand, the Plaintiff submits that they have produced a survey report indicating that the Defendant is living in the land. Therefore, the Plaintiff’s survey report is uncontroverted. 47.Whether the defendant challenged the plaintiff’s occupation – it is submitted that the Plaintiff has occupied the land for more than 80 years without the Defendant making an attempt to evict them. No complaints filed with NLC though they see the matter as a historical land injustice. Further that the Defendant has never lodged any objection with land case committee and appeal thereafter to the District Land Adjudication Officer. That PW3 confirmed the defendants father signed the record. That the Defendant's father knew the boundary of his land parcel that's why he never built or farm the land. It is only after his father’s death that the Defendant rushed and built in the Plaintiff's land. 48.Whether the road in question passes through the Defendant's land; or does it pass in between the Plaintiff and Defendant's land. Explaining the roles and positions held by the departments it is submitted that five experts PW2, PW3, PW4 and PW5 have testified that the road passes in between the Defendant's and the plaintiff’s land. That the said experts explained that although there was an initial idea to create a road to pass through the Defendant's land; that was only for purpose of creating an access road for neighboring parcel number Siaya/Nyangoma/ 3532 and when an alternative was created the initial plan was not implemented. 49.It is urged that the Defendant never called an expert witness to corroborate his wild allegations about a road passing through his land. A lot of judicial time and resources would have been saved if only the Defendant would have hired a surveyor before constructing his home and also brought a surveyor and the survey report. 50.Whether the counter claim and the Defendant's pleadings are properly before the court – it is submitted that the defendants’ pleadings are not commissioned, Defendant filed a case without adlitem. He produced his father's title deed as exhibit and yet he is not the owner of the land. The court is invited to dismiss the counter claim since he has no locus to file the counter claim. 51.Whether the dispute is a boundary dispute – it is contended that this cannot be a boundary dispute because the District Land Surveyor visited the land on 28th April 2016 and confirmed that the two land parcels do not share a boundary. That is a case of encroachment since the defendant left his land an encroached onto the road. 52.To buttress the foregoing arguments counsel for the Plaintiff cited the cases of James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR; Hawo Shanko Versus Mohamed Uta Shanko (2018) eKLR; Julian Adoyo Ongunga V Francis Kiberenge Abano Migori Civil Appeal No.119 of 2015 and George Kamau Macharia Vs. Deska Ltd (2019) eKLR Defendants Submissions 53.Counsel on record for the defendant identified two issues (i)Whether the Plaintiff has proven his case and (ii)Whether the Defendant's homestead is built on LR. No. Siaya/Nyangoma/3534. 54.It is submitted that the Plaintiffs has failed to prove that the Defendant has encroached and built on their property Land LR NO. Siaya/Nyangoma 4601. That evidence adduced and the document relied on are contradictory and unsafe to rely on to evict the Defendant. 55.That the Plaintiff averment in his pleadings is that he inherited the land from his late father, Zadock Ooro. The plaintiffs ground report dated 30th September 2023 on the google map sections shows Zadock Ooro's land is only limited to where Zadock Ooro's homestead is built which is smaller in appearance thus confirms and tally with the finding of the court in Bondo Court in L.C NO. 21 OF 1965 where the court allowed Zadock Ooro to only retain the land where his homestead was built on as shown on the sketch map in the said case. Therefore, the Plaintiff can only inherit land which Zadock Ooro's homestead is built. 56.It is submitted that the Plaintiff failed to prove to this court how he acquired portion marked as "A" 'B" "C" being referred to as 4601 which portions are not part of land in which Zadock Ooro's homestead is built on as shown in the said google map. Further, Plaintiff failed to produce congent and believable evidence to court on how Richard Ooro and Charles Ooro as shown in the said google map, acquired the land referred as 4601 bearing in mind that Plaintiff, Richard Ooro and Charles Ooro inherited their land from Zadock Ooro as was pleaded. 57.That the Plaintiff was to prove its case and the burden of proof would never shift to the Defendant. By the mere fact that the Plaintiff failed to adduce congent and believable evidence to prove the root of title and the process followed to acquire the title, he has failed to discharge the legal burden of proof placed on him under section 107(1) of the Evidence Act and as such, his allegations in the Amended Plaint dated 25th September 2023 is not evidence and remains allegations. 58.Further, Article 40(6) of the Constitution of Kenya (2010) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. The Plaintiff cannot be protected under Article 40 of the Constitution. 59.On capacity it is submitted that it is the Plaintiff who sued the Defendant in his capacity as defendant and not as an Administrator of the Defendant's father's Estate and therefore the issue of capacity does not arise. 60.Whether the Defendant's homestead is built on LR NO. Siaya/Nyangoma/3534 it is submitted that the Defendant house is built on LR No. Siaya/Nyangoma/3534 which is not the Plaintiff's land. A keen look at the report dated 30th September 2023 shows that the Defendant's homestead is built on LR. No. Siaya/Nyangoma/3534 and not LR. No. Siaya/Nyangoma/4601. 61.It is urged that the court do order that the Plaintiff, one Richard Ooro ("R. O"), Charlse Ooro ("C. O") who have built their homesteads on LR. No. Siaya/Nyangoma/3534 be removed. Amended Plaint dated 25th September 2023 be dismissed with costs. Analysis and Determination 62.The court has perused and considered the pleadings, the oral testimonies of the witnesses who testified and the evidence adduced herein. I have equally perused and considered the written submissions and authorities filed herein by the Learned Advocates for the parties. 63.I have identified the following issues for determination1.Whether the Defendant had capacity to defend the suit and raise a counterclaim2.Whether the Plaintiff has proved their case against the Defendant. This issue will be adequately by answered by the questions whether the Defendant has built into parcel 4601 and if the Defendant's homestead is built on LR. No. Siaya/Nyangoma/3534.3.Whether the plaintiffs title was obtained fraudulently or illegally4.Whether the counterclaim is merited5.Whether the orders sought in the plaint and counterclaim should issue6.Who bears the Costs of this suit and the Counterclaim? Whether the Defendant had capacity to defend the suit 64.Before the court gets into the analysis of the substantive issues above, I must resolve a preliminary issue that has been raised by counsel for the plaintiff. It has been contended that the Defendant lacks the requisite capacity to defend this suit. This suit is commenced by the Plaintiff who according to paragraph 5 of the amended plaint herein sued the Defendant as a neighbor and who resides in his late father’s land (parcel 3534 herein). 65.Moreover at paragraph 10 of the amended plaint trespass is pleaded as against the Defendants’ actions of allegedly building his house in the Plaintiff’s land and not his later fathers’ actions. The Plaintiffs have not sued the Defendant in his capacity as the legal representative of the estate of the Defendants father. The Defendant therefore has a right to Defend the suit in his personal capacity. Whether the Plaintiff has proved their case against the Defendant 66.The Plaintiffs case based on the amended plaint dated 25/9/2023 is that he is the legal owner of the land parcel Siaya Nyangoma/4601 by inheritance from his late father Zadock Ooro Okiri (herein Mzee Zadock) which parcel has a common boundary with the deceased Defendants fathers land Siaya Nyangoma 3534 wherein lives the Defendant. His main issue against the Defendant is that he has trespassed into Siaya Nyangoma/4601 and built a house/homestead claiming it was his father’s land and not the Plaintiffs father’s land. 67.The Plaintiffs’ case is that following the Defendants action above the Plaintiff lodged a complaint with the land adjudication office Bondo who visited the site to resolve the boundary issue between the two parcels and which found that indeed the Defendant had encroached as claimed and was ordered to vacate. The Defendant has willfully refused to vacate to date denying the Plaintiff his right of use to the same. He wants to be declared the rightful owner of the parcel 4601 and the Defendant be evicted therefrom. 68.At this point the legal burden of proof was on the Plaintiff to prove as required under Sections 107, 109 and 112 of the Evidence Act Chapter 80 of the Laws of Kenya that the allegations raised against the Defendant. 69Section 107 provides as follows:(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(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.” 70.Sections 109 states as follows:109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 71.Section 112 states as follows; -112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 72.The Plaintiffs first hurdle was to prove that indeed the parcel 4601 belonged to his father Mzee Zadok and which he inherited. The Plaintiff testified as PW1. He produced a copy of title deed dated 25/4/2017 for Siaya Nyangoma/4601 measuring approximately 10.95 Ha registered in the name of Zadok Ooro Okwiri; Grant of Letters of administration intestate dated 2/9/2016 issued to the plaintiff and Richard Otieno Ooro in Succession Cause No. HC/RM/PM 109 of 2016 together with certificate of Confirmation of Grant dated 18/10/2017 showing parcel 4601 was distributed to both the administrators. A title dated 18/6/2018 was then issued in the names of John Awalla Kooro and Richard Otieno Ooro. 73.With the above this court is satisfied with the Plaintiffs interest as one of the registered proprietors in the suit property. Moreover, it has been the law, and it still is the law, that the Certificate of Title issued to a person is prima facie evidence, that the said person holds title to the land noted therein though the same could be impeached on grounds of fraud and or misrepresentation. 74.It is important to note the claim by the Defendant is that he has all the rights to be where he has built because that is his father’s land having been awarded to Wawaye clan and that the Plaintiffs father was only an invitee from the Kachuje clan who lived therein at the pleasure of the Wawaye clan. The Defendant produced a report on Nyangoma Adjudication Section and the dispute pitting the Wawaye Clan Vs Kachuje Clan it is not dated but it is signed by J.M. Ndubi – Land Adjudication & Settlement Officer which concludes that Mr. Ndubi ‘ruled that the disputed shamba be demarcated and recorded to Wawaye People and the Kachuje Clansmen to be allowed to lodge committee cases where the Committee will peruse and verify the authenticity of the previous court cases proceedings to determine the proper owners of the disputed land.’ 75.It is important to note that there are no particulars of which this shamba is and its extent except that it refers to Nyangoma adjudication section and refers to various cases which the Mr. Ndubi did not verify their authenticity but was hoping that the same would be done by the committee to determine the proper owners of the land in dispute. And therefore, to me the proper ownership was never determined to conclusion. This court did also did not have the benefit of seeing the various proceedings mentioned therein. 76.For me I would not consider this as a clan dispute at all. I say so because even after the said report the Ministry of Lands Department of Adjudication & Settlement undertook an exercise of land adjudication under Nyangoma adjudication section and the adjudication register for which copies of the same were produced in Court. Thereafter survey was undertaken and as per the adjudication Sheet 37 that was produced in evidence and which is a public document. PW1 reiterated that his land was not mentioned in the case between the Kachuje and Wawaye neither were any of his ancestors. 77.Additionally PW3 confirmed in evidence that the parcel numbers 3534 and 4601 were informed by the adjudication process. In fact, I found it difficult to link the adjudication process to the dispute between the two clans herein and its outcome thereof. The land adjudication process was confirmed to have been undertaken from the year 1990 onwards by PW2. 78.The process of land adjudication is robust and provided for under the Land Adjudication Act. The preamble to the Land Adjudication Act states that it is; -An Act of Parliament to provide for the ascertainment and recording of rights and interests in community land... and for purposes connected therewith and purposes incidental thereto.” 79.The provisions of Sections 13 through 29 of the Act lay out the procedural roadmap. During adjudication, claimants present their interests to the Recording Officer, who records and maps them. If a dispute arises, the Recording Officer refers it to the Adjudication Committee as provided under Section 19(2) and (3). Thereafter, dissatisfied parties may escalate the matter to the Arbitration Board pursuant to Section 21(3). Upon conclusion, the adjudication register is compiled and published. Section 26 then grants any aggrieved person sixty days to file an objection with the Adjudication Officer, stating how and why the register is incorrect. The final stage, under Section 29(3), is the closure and certification of the adjudication register and appeals to the Minister thereafter. 80.The above procedure was also reflected by PW2 who told the court that upon demarcation and survey of a parcel of land identified by the presumed land owners the owners of 3534 and 4601 were given a chance to complain on the spot, then it is drawn and issued with a number. That the owners of the land are given a period where they can file objections if they feel their land was not adjudicated properly. 81.I want to believe that the above process is what was followed to record the interests and the numbers allocated as per occupation on the ground and parties were given an opportunity to make objections. This court has not been led to any evidence of objections arising out of the adjudication process as against mzee Zadock the Plaintiff’s father. PW2 confirmed the letter dated 24/5/2016 confirms that there were no pending cases or encumbrances, meaning at the point of writing there was no pending case. This is buttressed by PW2 testimony in cross examination that she believed the Defendants father signed the register. The letter also is a confirmation that parcel number 4601 Nyangoma Adjudication section was recorded under the name of the Plaintiffs father. 82.I think I will agree with the submission that if the Defendants saw the allocation as a historical land injustice, then they should have approached the National Land Commission to deal with their grievances under the relevant framework and not turn the present dispute into a clan dispute after the process of adjudication when they did not raise any objection to it. PW4 confirmed in response to Paragraph 10 (e) of the defence she stated the first registered owner is Zadock and no objection/appeal is registered against the title which was a requirement in the event there was any. 83.The process of adjudication culminated into the issuance of title to both Mzee Zadock and the Defendants father and which were produced in court by both parties. Therefore, both titles found root in the adjudication process for the Nyangoma adjudication area. 84.In respect to the above I will also draw guidance from the case of Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] KECA 27 (KLR) where the Court of Appeal rendered itself thus; -86.‘We note that the 1st to 4th respondents contend that the surrender was unlawful. There is a presumption that all acts done by a public official has lawfully been done and that all procedures have been duly followed. The onus is on the 1st and 4th respondents to prove otherwise. They have failed to do this. A bare allegation that a lawful procedure was not followed is not proof of the allegation’. 85.This then becomes the appropriate moment to discuss the allegations of fraud against the Plaintiff. Whether the Plaintiffs title was obtained fraudulently or illegally 86.The legal implications as to the registration of a title was aptly summarized in the case of Rosemary Wanjiru Njiraini v Officer in Charge of Station, Molo Police Station & another [2017] eKLR by Justice Sila Munyao (now JA) thus; -17.It has been the law, and it still is the law, that the Certificate of Title issued to a person is prima facie evidence, that the said person holds title to the land noted therein. In the pre-2012 land regime, this was provided for in Section 28 of the Registered Land Act and Section 23 of the Registration of Titles Act which were drawn as follows: -RLA S.27. Subject to this Act -(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.RTA S.23(1)The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.(2)A certified copy of any registered instrument, signed by the registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original.18.The current law is in Section 26 of the Land Registration Act, 2012, which provides as follows: -26. (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.(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original. 87.From the foregoing provisions a title can be interalia impeached on the grounds of fraud and misrepresentation. The Defendants therefore seek to impeach the Plaintiffs title on the grounds of fraud which are particularized under paragraph 10 of the of Amended Defence & Counterclaim dated 1/03/2024. Their case is that if the Plaintiffs father have had been the owners of the parcel 4601 then the same was done fraudulently by the Plaintiff as follows; -a.Alienating and or extending the Boundary of parcel 4601 without his father’s consentb.Effecting the said transfer and or change of the said extended boundary for Siaya/Nyangoma without involvement, participation and consent of the Defendants grandfather and or defendantc.Illegally changing the boundary and parcel number without any supporting documentsd.Failing to disclose to the defendant these transactionse.Fraudulently and illegally having the Defendants land registered in their names. 88.The Plaintiffs title having been challenged as aforementioned it was incumbent upon the Plaintiff to defend the root of his title – See the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR, where the Court of Appeal held that once the root of a title is challenged, the registered proprietor must go beyond the instrument of title and demonstrate the legality of its acquisition. 89.I think my analysis afore-going speaks to the acquisition of the plaintiff’s title starting with his father’s title following land adjudication process and thereafter transfer to the plaintiff following succession proceedings and distribution as per the grant. The grant of letters of administration and confirmation thereof were produced. I will not belabor the point. 90.The burden then shifted to the Defendant to prove to the required standard the allegations of fraud and illegalities attributed to the plaintiff and by association the land registry. It is trite that the standard of proof is slightly higher than that of a balance of probabilities – see Shah v Barclays Bank International Ltd & Another [1979] KLR 76; Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR,where the Court held that allegations of fraud must be strictly proved and require a standard of proof higher than the ordinary balance of probabilities and Ndolo v Ndolo [2008] 1 KLR (G & F) 742, where the Court reiterated that where serious allegations such as fraud or forgery are made, the party alleging them bears a heavier evidentiary burden. 91.The court notes that while DW1 insisted in cross examination that the Plaintiffs took away the Defendants land which must be returned he conceded he has never written to the NLC of their desire to have the land returned to him. He also confirmed he did not lodge any complaint during adjudication, he never reported the matter to the police neither did he make a report against the land officials Bondo for helping the Plaintiffs to steal the land. DW2 his own witness stated that DW1 did not participate in the adjudication process as he was young at the time. DW1 placed weight on the Kachuje Vs Wawaye Case which his own witness DW2 conceded he never participated in the said proceedings. 92.PW4 the land registrar Bondo confirmed to the court that they have never received any complaint from the Defendant about the road and or request to have the same ascertained. She also asserted that the parcel 3534 is intact including the acreage according to their record. PW2 confirmed there was nothing wrong with the adjudication happening at different times and recording in a deceased person name because what is reflected is the initial person as recorded. 93.Moreover PW3 the Sub County Surveyor in charge of Bondo, Rarieda and Usigu told the court where one has a title indicating a road passing through but which does not appear on the map it is upon them to apply requesting for the survey office to go and define for them the position of the road. The survey visits the parcel to go and ascertain the correctness of the information in the title and the emerging report is used to put the record straight. That no such application was received from the owner of 3534. 94.Based on the foregoing there is no evidence upon which the Defendants allegations could be verified from. The Defendant did not avail any survey report to confirm his allegations either against the Plaintiff or the land registry. Fraud cannot be inferred. 95.It is the finding of this court that the Defendant did not discharge the burden of proof. He did not prove the allegations of fraud to the required standard. 96.Having arrived at the aforesaid conclusion then the Counterclaim must therefore fail. Whether the Plaintiff has proved that the defendant has built into parcel 4601. 97.PW1 evidence in chief is that when the Defendant entered the parcel, he reported the matter to the land adjudication office who visited the site and indeed confirmed that the defendant had encroached into the land. The defendant was required to vacate. PW1 produced copies of Letters dated 15/4/2016; 19/5/2016; 24/5/2016 all from the Land Adjudication/Settlement Department, Ministry of Land Housing & Urban Development Bondo. All the letters are signed by Floice Ochieng and refer to ‘Boundary Dispute between P/Nos 3534 and 4601 Nyangoma Adjudication Section.’ 98.Floice testified as PW2 and confirmed that the documents produced by the Plaintiff emanated from their office/department. Indeed, all the letters confirm that the defendants house is in parcel 4601. It was her evidence that she had been in service since the year 2006. It is therefore my view the witness could authoritatively speak to the events that happened in the year 2016 which is also confirmed by her colleague one Mr. Winfred J. Ngutu. 99.Again PW2 was very clear that when a parcel is on the edge of a map during demarcation recording and survey it can be shown to be appearing on two maps and which is not an alteration. In her view she did not think the disparity moved a portion of the Defendants land into the plaintiff’s land. This therefore means the defendant deliberately went into the Plaintiff land and constructed his home which is supported by the position he holds that the entire land belonged to his clan. 100.The above findings were further corroborated by the Ground Report dated 30/9/2023 prepared by Patrick Opiyo Adero on behalf of the Plaintiff. A surveyor with experience spanning at least 40 years. Moreover, the Defendant did not produce his own independent report to prove that his house is not in parcel 4601 and that it is in parcel 3534. 101.It has been urged that the burden of proof never shifts to the Defendant. I’m inclined to respectfully disagree. In this regard the court is guided by the majority decision of the Supreme Court in Presidential Election Petition No. 1 of 2017 - Raila Amolo Odinga & Another vs IEBC & 2 Others (2017) eKLR where the Apex Judges had the following to say on the evidential burden of proof;"Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.” 102.Based on the foregoing it is the finding of this court that the plaintiff has proved that that the Defendant has built into parcel 4601 103.Is the plaintiff entitled to the orders sought in the amended plaint dated 25/9/2023. The Plaintiff has established that their title is legitimate. He is therefore entitled to a declaration in that respect as well as vacant possession of the suit property to the extent occupied by the Defendant and his people including the orders of permanent injunction sought. 104.For the foregoing reasons, the Court finds that the Plaintiff has established his case on a balance of probabilities and proceeds to enter judgement for the Plaintiff against the Defendant in the following terms; -i.The Defendants’ Counterclaim be and is hereby dismissed with no orders as to costs.ii.A declaration that the Plaintiff are the rightful owners of the land parcel known as Siaya/Nyangoma/4601 also known as Bondo/Nyangoma/4601, Nyangoma adjudication section.iii.An order to issue to evict the Defendant from land parcel known as Siaya/Nyangoma/4601 also known as Bondo/Nyangoma/4601, Nyangoma adjudication section and demolition of all houses and structures thereon.iv.The orders in iii) above shall be enforced after 90 days of this judgement.v.A permanent injunction restraining the Defendants their agents, servants, assigns, relatives or whomsoever claiming title or acting on their behalf from remaining in occupying continuing to occupy constructing a structure on the same selling trespassing and or encroaching and in other manner interfering with the land parcel no. Siaya/Nyangoma/4601 also known as Bondo/Nyangoma/4601, Nyangoma adjudication section. Siaya/Nyangoma/4601 adjudication section.vi.Costs of the Plaintiffs suit shall be borne by the Defendant DELIVERED AND DATED AT SIAYA THIS 15TH DAY OF MAY 2026HON. LADY JUSTICE A.E. DENAJUDGE15/5/2026Judgment delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Sala for the PlaintiffMr. Ochanda for DefendantCourt Assistant: Abiud Wekesa