https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3632

Kiilu & another (Suing as the Registered Trustees of the Royal Agricultural Society of Kenya) v Masinde Muliro University of Science and Technology & 11 others; County Government Of Kakamega (Interested Party) (Environment and Land Case 257 of 2015) [2026] KEELC 3632 (KLR) (10 June 2026) (Judgment) Neutral citation: [2026] KEELC 3632 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case 257 of 2015 A Nyukuri, J June 10, 2026 (Formerly Kakamega High Court Civil Suit No. 75 of 2008) Between David Keli Kiilu 1st Plaintiff Nelson N Ogombe 2nd Plaintiff Suing as the Registered Trustees of the Royal Agricultural Society of Kenya and Masinde Muliro University of Science And Technology 1st Defendant Land Registrar Kakamega Suing thro' the Hon Attorney General 2nd Defendant Church Commissioners For Kenya 3rd Defendant Innocent Marren Nganyi 4th Defendant Allan Noah Musunde 5th Defendant Baldina Lihavi 6th Defendant Brenda Makungu 7th Defendant Christine Atamba 8th Defendant Gladys Khatonde 9th Defendant Fred Mutsami 10th Defendant Silvanus O. Otiende 11th Defendant and County Government Of Kakamega Interested Party and County Government Of Kakamega Interested Party Judgment Introduction 1.This suit was instituted by way of a plaint dated 24th November 2008 which was severally amended with the further amended plaint dated 9th November 2018 being the last amendment. The plaintiff, suing as the registered trustees of the Royal Agricultural Society of Kenya, pleaded that at all material times they were the registered and legal proprietors and owners of the leasehold interest in all that parcel of land known as Kakamega Municipality/Block III/114. 2.The plaintiff averred that the said parcel of land measured approximately 6.813 hectares, and that the same was registered and/or allocated to them as proprietors for a term of ninety-nine (99) years with effect from 1st September 1996. That despite their proprietary interest in the suit premises, it later emerged that the 2nd defendant, through its office or its predecessor, the Commissioner of Lands, had purported to allocate part of the same land to the 3rd defendant, namely the Church Commissioners for Kenya, measuring approximately 0.8000 hectares. 3.The plaintiff further pleaded that on or about 13th April 1989, the 2nd defendant caused to be registered a certificate of lease over Kakamega Municipality/Block III/114 in favor of the 3rd defendant, the said certificate allegedly relating to a portion of the suit premises measuring 0.8000 hectares. According to the plaintiff, the said certificate of lease was issued by mistake, irregularly and/or by misrepresentation. They particularized the alleged mistakes, irregularities and misrepresentation by pleading, inter alia, that there existed only one parcel bearing the number Kakamega Municipality /block III/114, as represented in Survey Plan No. 121/7, and that the same measured 6.813 hectares. 4.It further averred that there was no record of allocation of Kakamega Municipality /Block III/114 to the 3rd defendant; that the parcel allegedly belonging to the 3rd defendant was, according to the Registry Index Map, situated on parcel number Block III/158, Kakamega Municipality, which was far and differently located from Kakamega Municipality/Block III/114; and that since the suit premises had already been allotted to the plaintiff, the 2nd defendant could not validly issue a certificate of lease in favor of the 3rd defendant over the same parcel. 5.The plaintiff also stated that the 2nd defendant or the Commissioner of Lands further purported to issue letters of allotment in respect of unsurveyed plots said to be subdivisions of Block III/114 to the 4th to 11th defendants, which allotments were illegal, irregular, null and void, on the basis that the suit property had already been alienated in favor of the plaintiff and was therefore not available for further allotment, subdivision, allocation or registration in favor of any third party. Further, that there had been no subdivision of the suit property on the ground and that the plaintiff had remained in active and constructive possession and use of the suit property. The plaintiff maintained that no land or portion thereof had lawfully been issued, allocated or subdivided, either wholly or partly, by the 2nd defendant or the Commissioner of Lands to the 3rd to 11th defendants, and that no notice had been given to the plaintiff interfering with, altering or in any way parting with their proprietary interest in the suit premises. 6.As against the 1st defendant, the plaintiff pleaded that on or about 3rd October 2007, the 1st defendant, through its agents and/or employees, unlawfully, forcefully and without any color of right or permission from the plaintiff, entered upon the suit premises and purported to acquire, annex and physically occupy the same. The plaintiff stated that they thereafter instituted Kakamega Chief Magistrate’s Court Civil Case No. 501 of 2007, seeking injunctive relief to restrain the 1st defendant from further trespassing upon the suit premises. They averred that despite the subordinate court issuing restraining orders, the 1st defendant continued to trespass upon the suit premises in blatant disregard of the said orders, thereby occasioning irreparable loss and damage to the plaintiff and their lawful tenants. 7.The plaintiff particularized the alleged trespass by the 1st defendant as fencing off the frontage of the suit premises abutting the main access road, uprooting the existing fence, repainting buildings erected by the plaintiff with the 1st defendant’s official colors, threatening to evict the plaintiff’ tenants, demolishing structures erected on the suit premises, grazing cattle thereon, and blocking the plaintiff’ road of access to the suit premises. 8.That as a consequence of the defendants’ acts, they had been fettered from exercising their proprietary rights over the suit premises; that they faced imminent danger of litigation from their lawful tenants; that the authority and dignity of courts of law had been subjected to ridicule and disrepute; that the suit premises was a prime property situated at the heart of Kakamega Municipality for which no adequate replacement could be found; and that the right to own property was a fundamental right guaranteed under the Constitution. 9.Consequently, the plaintiff sought the following orders against the defendants:a.This Honorable Court be pleased to issue an order of permanent injunction restraining the 1st and 3rd to 11th defendants by themselves, their agents, servants or anyone acting on their behalf from entering into, occupying, working on or in any manner, whatsoever interfering with the Plaintiff’s proprietorship rights over the suit premises and to further refrain from interfering with the Plaintiff’s lawful tenant’s quiet possession of Kakamega Municipality/Block III / 114.b.This Honorable Court be pleased to issue a permanent mandatory injunction requiring the 1st defendant to forthwith remove the fence it has erected at the frontage of the suit premises blocking the Plaintiff’s access to Kakamega Municipality/Block III/114, failure of which the plaintiff be at liberty to remove the 1st Defendant’s erected fence thereon at the 1st defendant’s own cost and expense.c.This Honorable Court be pleased to issue declaratory orders declaring that the Plaintiff is the legal owner and proprietor of all that parcel of land known as Kakamega Municipality/Block III/114 and that the 2nd Defendant is under a duty to issue the Plaintiff with a title document or lease over the said parcel of land measuring 6.813 Hectares.d.A declaration do issue that the purported alienation of whole or part of the suit property herein, creation and registration of Certificate of lease over whole and or portion of the suit property and described as Kakamega Municipality/Block III/114 to 3rd Defendant is invalid, null and void initio in so far as the same relates, touches on and directed at the suit premises as occupied and in possession of the plaintiff.e.A declaration do issue that the purported allotment of portions of the suit premises herein described at paragraph 7 hereinabove is invalid, null and void initio in so far as the same relates, touches on and directed at the suit premises as occupied and in possession of the plaintiff.f.An order that the Certificate of Lease over Kakamega Municipality/Block III/114 over the suit property issued on 13th April, 1989 in the name of the 3rd Defendant, Church Commissioners for Kenya be cancelled forthwith by the 2nd Defendant.g.That the Plaintiff be issued with a Certificate of Lease in respect of Kakamega Municipality/Block III/114 forthwith.h.Costs of this suit and Interest at Court’s Rate.i.Any other orders that this Honorable Court may deem fit to grant. 10.In response to the plaint, the 1st defendant filed defence dated 4th November 2008 and denied the plaintiff’s assertion of being the registered proprietors or leaseholders of Kakamega Municipality/Block III/114. The 1st defendant further denied having unlawfully entered, annexed or occupied the suit property. In the alternative, it pleaded that it entered and took possession of, the suit property pursuant to a Presidential decree, with the license and consent of the plaintiff and the Government, and that the plaintiff had voluntarily yielded possession upon being allocated alternative land to facilitate the 1st defendant’s expansion program. 11.It further averred that by the time the subordinate court issued restraining orders, the actions complained of had already been undertaken and completed with the plaintiff’ permission. The 1st defendant denied the particulars of trespass and irreparable loss pleaded by the plaintiff, and prayed that the suit be dismissed with costs. 12.The 2nd defendant also filed defence dated 26th March 2018 and pleaded that the successor to the Commissioner of Lands was the National Land Commission, and that it was therefore improper for the plaintiff to substitute the Commissioner of Lands with the Land Registrar instead of the National Land Commission. It further averred that Kakamega Municipality/Block III/114 was, according to the records held by the 2nd defendant, registered in the name of the Church Commissioners for Kenya in 1973, who held a certificate of lease over the same. 13.It stated that the plaintiff’ certificate of lease could not be registered because doing so would amount to double allocation. The 2nd defendant also pleaded that the Land Registrar does not issue letters of allotment, the same being within the mandate of the National Land Commission as successor to the Commissioner of Lands. It consequently prayed that the plaintiff’ suit be dismissed with costs. 14.The interested party filed a statement of defence and counterclaim dated 19th October 2021 in response to the amended plaint and stated that the land formerly belonged to the defunct Kakamega Municipality and is now held in trust by the County Government of Kakamega. That the suit property was identified as public land and that, following a Presidential pronouncement, a committee was constituted by the Permanent Secretary, Ministry of Lands, to deliberate on its allocation. 15.That the committee confirmed that Kakamega Municipality/Block III/114 was to be allocated as follows: six (6) acres to the 1st defendant, five (5) acres to the Ministry of Social Services, Youths, Sports and Culture, and five (5) acres to the plaintiff. That pursuant to the said allocation, a development plan was completed and gazetted on 5th June 2009. 16.In the counterclaim, the interested party contended that the leases issued to the 3rd to 11th defendants arising from Kakamega Municipality/Block III/114 were irregular and ought to be cancelled to pave way for proper subdivision of the suit property and registration of five (5) acres in its favor. It particularized the alleged irregularities as issuance and possession of leases without due process, subdivision of the suit property on paper without actual subdivision on the ground, issuance of leases with full knowledge of the interested party’s interest, and failure to recognize the interested party’s interest in the suit property. The interested party therefore prayed for judgment on its counterclaim against the plaintiff and the 2nd to 11th defendants in the following terms:a.Curving and registration of 5 acres out of Land Parcel No. Kakamega Municipality/ Block/III/114.b.Cancellation of all the titles arising from the suit property and registered in the names of the 3rd –11th defendants and registration reversion of the aforesaid title into the original Land Parcel No. Kakamega Municipality/ Block/III/114 to pave way for the execution of the Interested party’s Claim.c.Costs of the defence and counterclaim. 17.The plaintiff filed a reply to the interested party’s defence and defence to counterclaim dated 28th January 2022. They reiterated the averments contained in the 2nd further amended plaint. In response to the counterclaim, the plaintiff maintained that the interested party had no proprietary interest in, or locus standi to claim, any portion of Kakamega Municipality/Block III/114. It denied that the interested party was entitled to the carving out and registration of five (5) acres from the suit property, and reiterated that they were the registered and lawful proprietors thereof. 18.However, the plaintiff admitted the counterclaim only to the extent that the leases issued to the 3rd to 11th defendants arose from an alleged irregular and illegal subdivision of the suit property and were liable to cancellation. They prayed that the interested party’s counterclaim be struck out and/or dismissed, and that judgment be entered in their favor as prayed in the amended plaint. 19.The plaintiff also filed replies to the 1st and 2nd defendants’ respective statements of defence, both dated 28th January 2022. In their reply to the 1st defendant’s defence, the plaintiff denied the allegations raised therein and reiterated that the 1st defendant had unlawfully entered, occupied and interfered with the suit property, and that its defence ought to be struck out or dismissed. 20.Similarly, in reply to the 2nd defendant’s defence, the plaintiff denied the 2nd defendant’s averments and restated their claim that the suit property had lawfully been allocated and/or registered in their favor. They further maintained that any subsequent allocation, subdivision, registration or issuance of title over the suit property in favor of the 3rd to 11th defendants was irregular, unlawful and incapable of defeating their proprietary interest. The plaintiff consequently prayed that the 1st and 2nd defendants’ defences be struck out and/or dismissed, and that judgment be entered in their favor as prayed in the 2nd further amended plaint. 21.Upon compliance with the provisions of Order 11 of the Civil Procedure Rules, the matter proceeded to hearing by way of oral testimony. The plaintiff, the 1st defendant and the interested party called one witness each in support of their respective cases. The 3rd to 11th defendants never entered appearance in this matter. Plaintiff’s evidence 22.PW1 was Benard Nyagaka Atenga, the branch manager of the Agricultural Society of Kenya, Nakuru Branch. He adopted his witness statement dated 16th March 2012 as his evidence in chief and produced the documents filed in the plaintiff’ list of documents dated 16th March 2012 as exhibits. He testified that the suit property, Kakamega Municipality/Block III/ 114 measured approximately 6.813 hectares and belonged to the registered trustees of the Agricultural Society of Kenya. He stated that the land had not been subdivided on the ground and remained intact. According to him, the 3rd to 11th defendants had no valid allotment letters over the suit property, and the 3rd defendant was not the lawful registered owner thereof. 23.That although a green card in the 1st defendant’s documents indicated a size of 0.8 hectares, the plaintiff’s position was that the suit property measured approximately 6.8 hectares. PW1 further testified that the plaintiff were issued with an allotment letter and thereafter commenced the process of registration of the land in their name. He denied knowledge of any Presidential pronouncement or committee decision allocating six acres to the 1st defendant or five acres to the Ministry of Sports. He stated that the land belonged to the registered trustees of the Agricultural Society of Kenya. 24.He produced letters dated 6th June 2006 and 22nd May 2008 from the Ministry of Lands; notice from the 1st defendant’s students; letter dated Vice Chancellor of the 1st defendant dated 31st August 2007; Allotment letter dated 22nd July 1996; 13 letters written by several Government departments between 2003 to 2007. 25.On cross-examination, PW1 conceded that the allotment letter referred to 7.53 hectares, but averred that upon survey, it became 6.8 hectares. He further stated that the plaintiff’s previous suit, Kakamega CMCC No. 501 of 2007, had been withdrawn by their advocates, and that the registration process in favor of the plaintiff commenced immediately after the allotment letter was issued. PW1 denied that the Land Register showed that the suit property belonged to the Church Commissioners for Kenya. He further stated that the plaintiff had held Agricultural Society of Kenya shows in Kakamega continuously from 1967 until 2020, when the shows stopped due to the Covid-19 pandemic. 26.He conceded that the plaintiff was now using another property at Kakamega Forest leased from the Kenya Forest Service. He denied he suggestion that Kakamega Forest property was given to the plaintiff as a replacement for the suit property and confirmed that the 1st defendant moved onto the suit property after the alleged Presidential pronouncement. He further confirmed that the plaintiff did not have a registered lease over the suit property attributing it to double allocation and the pendency of this suit. He also stated that the documents relied upon by the Interested Party referred to a different parcel and not the suit property. 27.On re-examination, PW1 reiterated that the plaintiff were in occupation of the suit property and that the 1st defendant had entered the same at some point. He stated that the search relied upon by the Interested Party showed that the parcel was in the process of being registered in favour of the Agricultural Society of Kenya. That marked the close of the plaintiff’ case. Defence evidence 28.DW1 was Joseph Kibett Rotich, who testified on behalf of the 1st defendant. He stated that he was the Vice Chancellor of Laikipia University and had previously served as Deputy Vice Chancellor in charge of Administration and Finance at Masinde Muliro University of Science and Technology between February 2014 and June 2018. He adopted his witness statement dated 31st May 2018 as his evidence in chief and the witness statement signed by Prof. Sibilike Makhanu. He produced the 1st defendant’s documents as exhibits. 29.The witness testified that the plaintiff had never obtained a certificate of lease in respect of the said property. He stated that the plaintiff, through their patron, surrendered the entire showground then being used for Agricultural Society of Kenya shows to the 1st defendant, and that the plaintiff was thereafter directed to relocate to a new showground at Kakamega Forest, where they continued to hold their annual ASK shows. That the plaintiff ceased using the suit property in 2007. DW1 stated that the Government had acknowledged that the 1st defendant had been allocated the suit property and was in the process of effecting its transfer to the university. That a committee set up under the chairmanship of the then Western Provincial Commissioner approved the allocation of part of the showground to the 1st defendant, thereby confirming the 1st defendant’s right to occupy the suit property, or at least part thereof. 30.That the 1st defendant required the land for expansion and that its occupation was pursuant to authority issued by the Head of State, who was also the patron of the plaintiff.DW1 testified that during his tenure at the 1st defendant university, a primary or nursery school was using the land and had a structure thereon. He stated that the school used the land until about 2017 or 2018 when it vacated. 31.He produced copy of register in respect of Kakamega Municipality/Block III/114 dated 2nd March 2016; certificate of official search for parcel No. Kakamega Municipality/Block III/114; letter dated 10th November 2007 from the land Registrar to the Commissioner for lands; lease agreement of 24th March 2006; letter to the PS Ministry of Agriculture; letter from the Ministry of Lands to the Provincial Commissioner and minutes of the Special Committee meeting of 9th April 2008. 32.On cross-examination, DW1 stated that the plaintiff had surrendered the entire showground after being allocated alternative land, and that the surrender was to the County Council. That the conditions attached thereto provided that once the show ceased to exist, the land would revert. He further stated that the plaintiff stopped using the land as a showground, hence the surrender. DW1 also stated that the Agricultural Society of Kenya stopped using the land in 2007. He confirmed that a notice was to take effect from 2010 and that the plaintiff had objected to the reallocation of the land. 33.He further stated that there was a Presidential pronouncement that the Government would look for land for the expansion of the 1st defendant university. He also stated that as at 2nd April 2008, there was no show being held on the land. That during his tenure at the 1st defendant university, the plaintiff did not show him any certificate of lease for the land. That the 1st defendant had started fencing the land but was stopped by an order of the court. 34.On re-examination, DW1 stated that the documents showed that Block III/114 belonged to the Agricultural Society of Kenya, though the registration process in its favor had not been completed. He therefore maintained that the plaintiff never acquired a registered lease over the land. That marked the close of the 1st defendant’s case. Interested party’s evidence. 35.IPW1 was Stephen Sogori Chune, the Director of Physical Planning, Kakamega County. He adopted his witness statement dated 14th October 2022 as his evidence in chief and produced the Interested Party’s documents of even date. He testified that Kakamega Municipality Block III/114 belonged to the former County Council of Kakamega, now the County Government of Kakamega, and measured approximately 4.223 hectares. He stated that the parcel was initially known as L.R. No. 1407/481, registered on 21st April 1972, before becoming Kakamega Town Block III/114 under survey plan F/R 121/7. 36.Further that the County Council had never issued a lease over the suit property to any person. He stated that although the plaintiff attempted to register a lease in September 2016, registration was declined because there was an existing lease in the name of the County Government and a parallel lease could not be registered. IPW1 further testified that the registration of Block III/114 in the name of the Church Commissioners for Kenya was erroneous, as their parcel was Block III/158, measuring approximately 0.8 hectares. He maintained that the register ought to be corrected, and that Block III/114 remained the property of the County Government of Kakamega. 37.He produced a copy of the Map for L.R 1407/481 measuring 4.223 Hectares on survey plan No. F/R 121/7 surveyed on 12/02/1972; map sheet for Kakamega Municipality/Block III/114 on sheet No. 102/2/21/1; green card; white card; official search for Kakamega Municipality/Block III/114; lease for Kakamega Municipality/Block III/114; and letters dated 5th September 2016 and 11th October 2016. 38.On cross examination, he stated that a committee was set up following the Presidential pronouncement. That the Interested Party sought cancellation of titles issued in respect of the suit property and the carving out of five (5) acres. He confirmed that no relief was sought against the 1st defendant. He maintained that the suit property had never belonged to the plaintiff, although he conceded that the plaintiff had previously used the land. That following a Presidential pronouncement, a committee was constituted and made recommendations on the allocation of the land, and that the plaintiff was to retain five (5) acres. He also confirmed that if the lease in favor of the Church Commissioners for Kenya was cancelled, the land would revert to the County Government of Kakamega. That marked the close of the Interested Party’s case. 39.The court directed that parties file and exchange written submissions. On record are the plaintiff’ submissions dated 30th June 2025, submissions by the 1st defendant dated 18th August 2025 and submissions by the interested party dated 9th November 2025, all of which this court had carefully considered. Plaintiff’ submissions 40.The plaintiff isolated and submitted on five key issues. On whether Kakamega Municipality/ Block III/114 was available for alienation, the plaintiff relied on section 2 of the repealed Government Lands Act and the case of Fanikiwa Limited & 3 Others v Sirikwa Squatters Group & 17 Others Supreme Court Petition No. 32 (036), 35 E038) & 36 (E039) OF 2022 and submitted that the suit property had lawfully already been allotted to them by a letter of allotment dated 22nd July 1996. That upon compliance with the terms of the allotment, the land ceased to be unalienated Government land and was therefore not available for further allocation to the 1st defendant, the Interested Party, or any other person. Reliance was placed on the case of Kaluwa Ltd & Another v Business Liaison Company Ltd & 3 Others SC Petition No. 14 of 2017 [2021] KESC 37 (KLR) 41.On whether a Presidential pronouncement could transfer ownership of the suit property, the plaintiff submitted that the alleged Presidential pronouncement, even if made, could not lawfully divest them of their proprietary interest. They argued that the suit property was already alienated and was not available for allocation through administrative action, committee minutes or correspondence from Government offices. 42.Regarding compulsory acquisition, the plaintiff submitted that no lawful process was undertaken to acquire the suit property for public use. They argued that no gazette notice or acquisition proceedings were produced to show that the Government had compulsorily acquired the land before giving possession or interest therein to the 1st defendant. 43.On whether the parcels referred to in the proceedings were one and the same, the plaintiff submitted that Kakamega Municipality/Block III/114 is distinct from Kakamega Municipality/Block III/158 and Kakamega Town Block III/114. They contended that the Church Commissioners for Kenya were properly associated with Block III/158, measuring approximately 0.800 hectares, and that the certificate issued over Block III/114 was therefore erroneous. 44.The plaintiff further submitted that there was no evidence that they had surrendered, abandoned or consented to the subdivision of the suit property. They urged the court to find that the purported allotments, subdivisions and titles arising from the suit property were irregular, unlawful, null and void, and to grant the prayers in the 2nd further amended plaint with costs. 1st defendant’s submissions. 45.The 1st defendant submitted on three issues. On whether the plaintiff had any proprietary rights over the suit property, the 1st defendant submitted that the plaintiff had failed to prove ownership of Kakamega Municipality/Block III/114. It was argued that although the plaintiff pleaded that they were the registered proprietors of the suit property, they did not produce any certificate of lease or title in their favour. According to the 1st defendant, the plaintiff’ claim was based only on a letter of allotment dated 22nd July 1996 and an unregistered lease, neither of which was capable of conferring proprietary rights. 46.The 1st defendant further submitted that the official land records produced before court showed that the suit property was registered in favor of the 3rd defendant, Church Commissioners for Kenya, with the County Government of Kakamega as head lessor. It was contended that the 3rd defendant’s lease was registered on 13th April 1989, long before the plaintiff’ alleged allotment in 1996. The 1st defendant therefore argued that the plaintiff’ alleged allotment could not override a prior registered interest. 47.It was also the 1st defendant’s submission that a letter of allotment is not a title to land, but merely an offer or transient right which only becomes capable of creating an interest upon acceptance, payment of the requisite charges and completion of registration. In support of that position, the 1st defendant relied on the decisions in Stephen Mburu & 4 others v Comat Merchants Limited & Another [2012] eKLR, Kioko v Mutunga [2024] KEELC 5702 (KLR) and Lagat v Kebut [2023] KEELC 18432 (KLR). It was submitted that the plaintiff had not proved acceptance of the allotment, payment of stand premium and ground rent within the prescribed period, or compliance with the other conditions of allotment. 48.The 1st defendant further challenged the regularity of the plaintiff’ alleged allotment. It submitted that the plaintiff did not demonstrate compliance with the procedure for alienation of public land under the repealed Government Lands Act. In particular, the plaintiff were said not to have produced a council resolution or recommendation, a part development plan, proof of public auction, proof of payment, or a beacon certificate, which they deemed was irregular, unprocedural and incapable of founding a lawful claim to the suit property. 49.On whether the allotment letter and lease remained valid, the 1st defendant submitted that even if the plaintiff had acquired any interest in the suit property, the same had lapsed by reason of non-compliance with the lease conditions. It relied on section 26 of the Land Act, 2012, and argued that the plaintiff were bound by the terms of the lease dated 24th March 2006. The 1st defendant pointed out that condition 5 of the lease required the land and buildings to be used only as a showground. The 1st defendant submitted that the plaintiff had breached that condition by admitting that buildings had been constructed and rented out to tenants and that a nursery school had been erected on the land. 50.It further relied on condition 16 of the lease, which provided that if the showground ceased to function as such, the lease would automatically determine and the land would revert to the County Council without the necessity of any formal surrender. On that basis, the 1st defendant argued that the plaintiff had forfeited any interest they may have had in the land and could not seek protection from the court. 51.On whether the plaintiff had locus standi to seek injunctive relief, the 1st defendant submitted that the plaintiff had not established any legal or equitable interest capable of protection by way of injunction. It argued that a party who has no title or proven proprietary interest cannot seek a permanent or mandatory injunction over land. The 1st defendant further submitted that the plaintiff had failed to prove the alleged trespass, and that the evidence showed the 1st defendant entered the land pursuant to a Presidential directive and subsequent administrative steps taken for purposes of expansion of the university. The 1st defendant also submitted that the plaintiff had been relocated to alternative showground land near Kakamega Forest, where they continued to hold agricultural shows. It was argued that the plaintiff could not, after relocation, continue asserting rights over the former showground, particularly where they had no registered title and had allegedly breached the conditions of the unregistered lease. 52.In response to the plaintiff’ claim that the 3rd defendant’s title should be cancelled, the 1st defendant submitted that no fraud, mistake, illegality or misrepresentation had been proved to the required standard. It maintained that the registered lease in favor of the 3rd defendant remained protected under sections 25 and 26 of the Land Registration Act, and that the plaintiff had not laid any proper basis for its cancellation. The 1st defendant cited the case of Nelson Kazungu Chai & 9 Others v Pwani University College (2017) KECA 135 KLR for the proposition that a right can only be protected where it exists not where it is only an illusion. 53.On costs, the 1st defendant relied on section 27 of the Civil Procedure Act and submitted that costs follow the event. It therefore prayed for the court to dismiss the plaintiff’ suit in its entirety with costs to the 1st defendant. Interested party’s submissions. 54.On ownership and locus standi, the interested party submitted that the plaintiff had not produced any title, certificate of lease or registered lease in their favor. It was its submission that the draft lease relied upon by the plaintiff did not create, declare, assign, limit or extinguish any right, title or interest in the suit property, as the same was never registered. The interested party therefore contended that the plaintiff were neither registered owners nor registered lessees of the suit property and consequently lacked locus standi to institute the suit on the basis of ownership. 55.The interested party argued that the plaintiff had failed to prove their allegation that the lease in respect of the suit property was issued to the 3rd defendant by mistake, irregularity or misrepresentation. It argued that no evidence was tendered by the plaintiff, whether documentary or expert, to establish the alleged mistake or irregularity. According to the interested party, the green card and white card produced in evidence showed that the suit property belonged to the interested party, and that the attempted registration of the plaintiff’ lease was declined because there was already an existing lease and a parallel lease could not be registered. 56.On the prayers for permanent and mandatory injunction, the interested party submitted that the plaintiff had failed to satisfy the principles in Giella v Cassman Brown. It relied on Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR and Nguruman Ltd v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) on the requirement that an applicant must establish a prima facie case by demonstrating a clear and unmistakable right capable of protection, which they averred the plaintiff had not demonstrated any registrable or enforceable right over the suit property and were therefore not entitled to injunctive relief. 57.The interested party also submitted that the plaintiff were not entitled to the declaratory orders sought, since they had not proved that they were registered lessees of the suit property. It argued that the plaintiff could not, on the one hand, plead that they were already registered proprietors, and on the other hand, seek an order directing that they be registered afresh. The interested party maintained that the plaintiff’ claim was unsupported by valid registration documents and that the court could not confer ownership where none had been proved. It ultimately urged the court to find that the plaintiff had failed to prove their case on a balance of probabilities and to dismiss the suit with costs. Analysis and determination 58.This court has carefully considered the pleadings, evidence and submissions presented in this case. Three issues arise for the court’s determination, namely;a.Whether the plaintiff is the lawful owner of the suit property.b.Whether the suit property was lawfully acquired by the defendantsc.Whether the interested party is the lawful owner of 5 acres of the suit property. 59.It is not disputed that the suit property measures 6.813 Hectares. That property is located in Kakamega town between Bukhungu Stadium and Masinde Muliro University of Science and Technology. None of the parties in this dispute hold registered title as proprietor in regard to the land measuring about 6.813 Hectares situated between Bukhungu Stadium and Masinde Muliro University of Science and Technology. 60.The plaintiff’s lease which had indicated that the plaintiff held a leasehold interest in parcel No. Kakamega Municipality Block III/114 was not registered for reasons that the Land Registrar found out that a parcel of land known as Kakamega Municipality Block III/114 had already been registered in the name of the 3rd defendant on 13th April 1989 and the same measures 0.8 Hectares. It is not disputed that from the records at the lands registry Kakamega, the property whose registration number is Kakamega Municipality Block III/114, was on 13th April 1989 registered in the name of the 3rd defendant and the area thereof is 0.8 Hectares. 61.However, according to the plaintiff, the suit property is parcel No. Kakamega Municipality Block III/114, and that the same was allocated to the plaintiff on 1st September 1996. The plaintiff does not have registered title to the suit property. The plaintiff’s complaint being that the 1st defendant has trespassed on the suit property; that the 2nd defendant unlawfully allocated part of the suit property to the 4th to 11th defendants and that the 2nd defendant registered a certificate of lease in favour of the 3rd defendant by mistake, irregularity and misrepresentation. 62.On the other hand, the 1st defendant maintains that the plaintiff never owned the suit property, but was only using the same. Further that in 2007, the latter ceased using the suit property upon the Presidential decree that granted the land to the 1st defendant, which was followed by the plaintiff’s voluntary surrender thereof to the 1st defendant, as the plaintiff moved to an alternative parcel. 63.The interested party on their part, claim ownership of the suit property and have counterclaimed for 5 acres thereof and proposed that the plaintiff gets 5 acres while the 1st defendant gets 6 acres. 64.I have considered the plaintiff’s exhibits. The plaintiff produced a letter of allotment dated 22nd July 1996 and a lease that was never registered. Therefore, the plaintiff was never conferred proprietorship of the suit property, as the same was never registered in his favour. It is trite that a letter of allotment is merely an invitation to treat and cannot confer any interest in land as the same is merely an offer awaiting fulfilment of the conditions in the offer but even then, after fulfilling the conditions, it still does not confer an interest in land until proper registration under the applicable law is done. (See Torino Enterprises Limited v The Honourable Attorney General Supreme Court Petition No. 5 of 2022) 65.In the case of Dr. Joseph N.K. Arap Ngok v Justice Ole Keiyua & 4 Others C.A 60 /1997 the Court of Appeal stated as follows;“It has been held severally that a letter of allotment per se is nothing but invitation to treat. It does not constitute a contract between the offeror and the offeree and does not confer interest in land at all. It cannot thus be used to defeat a title of a person who is the registered proprietor of the said parcel of land.” 66.While it is not disputed that the plaintiff was in possession of the suit property before the 1st defendant’s possession, that possession alone did not and cannot confer ownership as no registration in the plaintiff’s name was effected. 67.I have considered the plaintiff’s letter of allotment dated 22nd July 1996. The same shows that Kakamega County Council allocated to the plaintiff, an unsurveyed show ground plot Zone 3 Kakamega Municipality. No Part Development Plan (PDP) was attached to the allotment letter; no PDP Number was cited in the allotment letter and no stand premium was paid. 68.It is trite that an allotment letter ought to be accompanied by an approved PDP whose number is indicated in the allotment letter. This is so because, planning precedes allocation of unalienated public land. After issuance of the letter of allotment, a cadastral survey is done by the department of survey, and that survey is approved and authenticated by the Director of surveys. Then the surveyed land is given a reference number for purposes of issuance of a certificate of lease and thereafter registration of the same is done in accordance with the law. 69.In the case of African Line Transport Company Limited v The Honourable Attorney General Mombasa HCC No. 276 of 2003 [2007] e KLR, the court held that planning comes first then surveying and the letter of allotment ought to be accompanied by a PDP with a definite number which is taken to the department of survey for surveying. Then it is taken to the Director of surveys for authentication and approval before a reference number is issued. 70.Similarly, in Nelson Kazungu Chai & 9 others v Pwani University [2014] e KLR the Court stated the procedure for allocation of unalienated public land as follows;“It is trite law that under the repealed Government lands Act, a Part Development Plan must be drawn and approved by the Commissioner of lands or the Minister for lands before any unalienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved PDP is then issued to the allottees.131.It is only after the issuance of the letter of allotment and the compliance of the terms therein that a cadastral survey can be conducted for the purpose of issuance of a certificate of lease. This procedural requirement was confirmed by the surveyor, PW3. The process was also restated in the case of African Line Transport Co. Ltd v Attorney General, Mombasa HCC NO. 276 OF 2013 where Njagi J held as follows; “secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a definite number. These are then taken to the department of survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot 132. A Part Development Plan (PDP) can only be prepared in respect to Government land that has not been alienated or surveyed….” 71.In view of the above, the allotment letter issued to the plaintiff was not predicated on an approved PDP. It is clear that the allocation of the suit property was not done in accordance to the law as the same was not predicated on any approved planning. Consequently, it is the finding of this court that the plaintiff’s allotment letter was issued unprocedurally and could not form a lawful basis for subsequent conferment of title or lawful ownership of the suit property to the plaintiff. 72.Besides, the alleged issuance of a reference number Kakamega Municipality Block III/114 for the suit property when the same number had already been assigned another parcel of land measuring 0.8 Hectares registered in the name of the 3rd defendant was unprocedural, irregular and improper and could not confer a lawful title on anyone because different parcels of land cannot share the same reference number. The role of assigning the correct reference number to a parcel of land is not the function of this court, but that of the survey department. In so far as the suit property is concerned, and in view of the fact that reference number Kakamega Municipality Block III/114 had already long been assigned to a parcel measuring 0.8 Hectares registered in the name of the 3rd defendant in 1989, the Survey department’s role of assigning the proper reference number to the disputed property is yet to be done to date. Without registration, a land reference number assigned to a parcel of land by the survey department, remains a mere proposal. As the issuance of a reference number in respect of the suit property by the department of survey was not made complete by registration of the same by the Land Registrar, I find and hold that the suit property is not parcel No. Kakamega Municipality/ Block III/ 114. 73.When the Land Registrar in his letter to the Commissioner of lands dated 6th June 2006 sought proper directions on the next cause of action, upon realizing that he could not register the suit property as Kakamega Municipality/Block III/114, it appears that there was no resolution of that conundrum. The plaintiff’s lease could not be registered because there was already a registered lease in respect of parcel No. Kakamega Municipality/Block III/114. 74.The 3rd defendant’s title is in regard to land measuring 0.8 hectares and not 6.813 hectares which is stated to be the area of the disputed property. The plaintiff did not produce a registered map to show when its parcel No. Kakamega Municipality/Block III/114 was created and where it is on the ground. There was neither a PDP nor a registered survey plan produced by the plaintiff. The maps produced by the interested party were in regard of parcel No. 1407/481 measuring 4.223 Hectares which has no nexus to the suit property. 75.Therefore, no history was given of what transpired before issuance of the letter of allotment and preparation of the lease instrument. In short, the plaintiff failed to demonstrate a lawful process of alienation, survey, titling and registration of the disputed property to show that it was indeed its property. I therefore find and hold that in view of the above reasons, the plaintiff failed to demonstrate that it is the lawful owner of the suit property. 76.The plaintiff argued that they had been on the suit property. The court takes the view that possession of public land, however long, cannot confer ownership rights on an individual. 77.The plaintiff sought cancellation of the registration of parcel No. Kakamega Municipality Block III/114 in the name of the 3rd defendant on the basis that the same was done through mistake, irregularity and misrepresentation. Registration of that parcel in the 3rd defendant’s name was effected on 13th April 1989, long before the plaintiff’s letter of allotment was issued in 1996. There were various correspondence from various Government offices including the survey office, on the issue of the land, but the question of which land is where was not resolved. Even allegations that the 3rd defendant’s parcel is on registration number Kakamega Municipality/Block III/158, were mere hearsay as no evidence was presented to that effect. In any event, the issue of the church having parcel No. Kakamega Municipality/Block III/158 is a non-issue because the issue before this court is whether the disputed land is parcel No. Kakamega Municipality/Block III/114 and who owns it. The court is not called upon to decide how many parcels the church owned. Bringing in parcel Kakamega Municipality/Block III/158 is a mere convolution of issues as the issue is not where the church is situated, but the ownership of the property popularly referred to as the “old Agricultural Show ground.” 78.The parties herein acknowledge the registration of parcel No. Kakamega Municipality/Block III/114 measuring 0.8 Hectares in the name of the 3rd defendant. That property was first registered in the interested party’s predecessor and thereafter registered in the 3rd defendant’s name. The plaintiff did not demonstrate how that registration was by mistake, irregularity or misrepresentation, when it happened many years before it was allegedly allocated the suit property. In the premises I find and hold that the plaintiff ‘s prayer for cancellation of the 3rd defendant’s title has no justification and is declined. 79.The plaintiff complained that the 2nd defendant allocated the suit property to the 4th to 11th defendants. The 2nd defendant is the Land Registrar whose role is specified in part II of the Land Registration Act and more specifically section 14 thereof, which mainly deals with registration of documents and instruments, overseeing the maintenance of the register and cadastral maps and attendant documents. As of 1996 when the alleged allocations were said to be done by the 2nd defendant, his role was provided for in section 8 of the repealed Registered land Act Cap 300 which mirrors section 14 of the Land Registration Act. That role, then and now, does not include allocation of unalienated public land. Allocation of public land was then the role of the Commissioner of Lands and after the promulgation of the new Constitution, it was transferred to the National Land Commission. 80.In any case, the letters of allotment the in favour of the 4th to 11th defendants which are on record, although not produced by the plaintiff, were alleged to have been issued by the Commissioner of lands and not the 2nd defendant. In the premises, the plaintiff did not prove any wrongdoing on the part of the 2nd defendant and therefore its claim against the latter fails. 81.In any case, the alleged allocations to the 4th to 11th defendants, did not comply with the law on allocation of public land as their allotment letters indicate that the allotment was pursuant to subdivision of Kakamega Town Block III/114, which means that they were being allocated an already alienated parcel. Allocation can only be done in respect of unalienated public land and not land already registered. No allocation procedure for public land was done. Therefore, the allotment letters in favour of the 4th to 11th defendants were irregularly and unprocedurally issued and therefore are null and void with no legal import. 82.The 1st defendant alleged to have become the owner of the suit property by virtue of a Presidential decree allegedly made on 11th August 2007, where it was alleged that the then President of the Republic of Kenya had directed the Government to give the 1st defendant two parcels of land. There is no provision in law and none existed as of the material date, that would confer legal ownership of land on anyone through a Presidential decree. While there was nothing wrong in having intentions of expanding the 1st defendant institution, to date no lawful step has ever been taken towards formalizing that intention. I therefore find and hold that the 1st defendant has no legal proprietary or equitable interest in the suit property. Therefore, no lawful acquisition of the suit property was done by the 1st defendant. From the record, it is clear that the 1st defendant took possession of the suit property around 2007. That possession alone has no legal basis and does not confer ownership and therefore I find and hold that the 1st defendant does not own the suit property or any part thereof. 83.On the other hand, in its counterclaim dated 19th October 2021, the interested party counterclaimed ownership of 5 acres. The interested party is a County Government, its predecessor being Kakamega Municipal Council and therefore it could only at the material time be vested with trust land for the benefit of the residents of Kakamega as was provided for in section 115 of the repealed Constitution of Kenya. Its role was and still remains that of a steward based on trust, because it cannot own land in its own right as sought in the counterclaim. 84.The interested party had no power to hold Government land, which vested in the Government in accordance to sections 204 and 205 of the repealed Constitution of Kenya as read with section 2 of the repealed Government Lands Act. In the instant case, no evidence was led to clarify whether the the suit property was as of the material time (between 1996 to 2007) trust land or Government land. In the premises, the interested party’s counterclaim of five acres from the suit property has not been proved and is therefore declined. 85.For the above reasons, and the fact that none of the parties herein has proved ownership of the suit property, the plaintiff’s claim and the interested party’s counterclaim are hereby found to be without merit and the same are hereby dismissed. In view of the findings above, I order that each party shall bear its own costs. 86.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 10TH DAY OF JUNE, 2026A. NYUKURIJUDGEIn the presence of;Ms Bett for the plaintiffMr. Mamadi for the 1st defendantMs Munihu for the interested partyCourt Assistant- Delphine