https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4110

***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC SUIT NO. 589 OF 2017*** ***SEKETO ENE KOILEL (Suing as the Legal Representative of the Estate of PARAMERES OLE KOILEL) …………………….. PLAINTIFF*** ***VERSUS*** ***MOSHORO GROUP RANCH ………………………….. 1ST DEFENDANT*** ***NTARI MOSHORO ……………………………………… 2ND DEFENDANT*** ***SALIMU KINDI …………………………………………… 3RD DEFENDANT*** ***SIMON MUTUTUA ………………………………………. 4TH DEFENDANT*** ***KINKI KOILEL …………………………………………….. 5TH DFENDANT*** ***LESHUNET KOILEL ……………………………………. 6TH DEFENDANT*** ***LEMISOS KOILEL ………………………………………. 7TH DEFENDANT*** ***RUPEN KOILEL …………………………………………. 8TH DEFENDANT*** ***NKOSHOO NGOITEK ………………………………….. 9TH DEFENDANT*** ***MPOYO SUNGUIYAH STEPHEN …………………… 10TH DEFENDANT*** ***JOSEPH K. SUNGUIYAH ……………………………. 11TH DEFENDANT*** ***ALFRED OLE LOONTUROT ………………………… 12TH DEFENDANT*** ***ENE KOILEL KALAITE …………………………….... 13TH DEFENDANT*** ***JUDGMENT*** 1. The Plaintiff herein ***Seketo Ene Koilel (Suing as the Legal Representative of the Estate of Parameres Ole Koilel,*** instituted this suit by way of a Further Amended Plaint dated ***8th March 2023***, in her capacity as the legal representative of the estate of the late ***Paremeres Ole Koilel*** (hereinafter referred to as “the **Deceased**”), having been substituted in place of the Deceased, who passed away in 2013. 2. The substitution followed the ***Grant of Letters of Administration Ad*** ***Litem*** issued to the Plaintiff on ***13th October 2021,*** *in* ***Narok High Court Succession Cause No. E011 of 2021***, authorizing her to prosecute the suit on behalf of the deceased’s estate. 3. The suit is brought against the Defendants in respect of land parcels No. ***Cis-Mara/Nairagie/Enkare No. 877,*** (hereinafter referred to as “the ***Suit Property***”), which land had been allegedly allocated to the deceased ***in Moshoro Group Ranch*** (hereinafter referred to as “the ***Ranch***”). 4. The Plaintiff averred that the Deceased was member ***No. 11,*** in the ***Moshoro Group Ranch*** register; and that the deceased was lawfully allocated the suit property by the ***Group Ranch*** ***Adjudication Committee*** on or about ***3rd December 1989****.* 5. The Plaintiff further averred that on or about ***31st March 1998***, the 2nd to 9th Defendants, acting as officials of the 1st Defendant, convened an ***unlawful and irregular*** ***meeting*** during which they purported to include new members into the ***Group Ranch*** with the intention of grabbing the deceased’s land; that in the minutes of the illegal meeting, the Defendants resolved to include 3 new persons to the ***Group Ranch’s register*** and settle them on the suit property without the deceased’s consent, and further resolved to convert part of his land into a ***water dam.*** 6. She further averred that the Defendants were also in the process of declaring part of the land donated by the Deceased for a ***Community Church*** and ***School*** as not yet allocated, with the intention of grabbing it and allocating the said land to persons that were not part of the Group Ranch. 7. That the deceased challenged the ***legality*** of those resolutions by lodging a complaint with the ***Land Adjudication Officer***, who subsequently directed that a general meeting be convened on ***8th May 1998***; that the meeting held on that date was improperly constituted; poorly attended and incapable of constituting a lawful Special General Meeting; that the minutes of that meeting were never supplied to the deceased, despite his status as a bona fide member of the Ranch. 8. The Plaintiff further averred that notwithstanding the deceased’s objections, the Defendants proceeded to obtain the ***Land Control*** ***Board’s consent*** on ***18th July 2000,*** and unlawfully subdivided the suit property into ***Cis-Mara/Nairagie/Enkare Parcels NOS. 878, 879, 880, 881, 882*** *and* ***884***, which were thereafter registered in the names of the ***5th, 10th, 11th, 12th and 13th Defendants*** and titles deeds issued. 9. Consequently, the Plaintiff prayed for Judgment against the Defendants jointly and severally for the following orders: 10. ***A declaration that the meetings held on 31st March 1998 and 8th May 1998, and minutes arising thereof, are null and void.*** 11. ***A permanent injunction restraining the Defendants by themselves or their agents from presenting any minutes of the 1st Defendant to the Land Control Board.*** 12. ***An injunction restraining the Defendants, their servants or agents from further interfering, disposing of or in any other way interfering with the land parcels No. CIS MARA/NAIRRAGEI/ENKARE/878, 879, 880, 881, 882 and 884.*** 13. ***That the Deceased or his legal representative be declared the sole owner of his parcel of the land.*** 14. ***That the register of Titles be rectified by cancellation of the illegal land parcels No. Cis-Mara/Nairagie/Enkare Parcels Nos. 878, 879, 880, 881, 882 and 884, and that the deceased or his estate be registered as the owner of the said parcels of land under the consolidated land parcel No. 877*** 15. ***That the Defendants be declared trespassers on the Deceased’s land.*** 16. ***That the Defendants be ordered to pay damages for the trespass already done on the Deceased’s land.*** 17. ***Costs of the suit and any other relief that this Honourable Court may deem fit to grant.*** 18. In response to the Further Amended Plaint, the ***3rd to 13th*** ***Defendants*** filed their Statement of Defence dated ***3rd April 2023*** and averred as follows: 19. The 3rd - 13th Defendants averred that the 1st Defendant, ***Moshoro Group Ranch***, ceased to exist by operation of the ***Community Land Act, 2016,*** and therefore lacked the legal capacity to sue or be sued. Further that the 2nd Defendant died almost ***30 years*** ago and had never been substituted, for which reason the suit against him had abated. 20. The Defendants further averred that they had been erroneously sued in their official capacity as the officials of the Group Ranch, contending that the suit was misconceived since the Group Ranch had ceased to exist and therefore lacked the legal capacity to sue or be sued. 21. They further averred that the 10th - 13th Defendants were bona fide members of ***Moshoro Group Ranch,*** who were lawfully allocated their respective parcels; that their names were duly forwarded to the ***Narok Cis Mara Land Control Board***, which granted the requisite consent for the allocations, and those decisions had never been challenged; and that the present suit, instituted decades later, constituted an abuse of the court process. 22. With regard to the minutes relating to the meetings of ***31st March 1998 and 8th May 1998,*** the Defendants averred that any challenge to those decisions had been overtaken by events following the dissolution of the Group Ranch; and that the Ranch was dissolved without ever disputing the said decisions. 23. They further contended that the allegations founded on correspondence from the ***Land Adjudication Office*** were unsupported, as the alleged letters had not been authenticated and were therefore of no evidential value. 24. They also denied the Plaintiff’s allegations regarding the involvement of the ***Provincial Administration*** and maintained that any attempt to attribute liability to administrative officers in the management of the ***Group Ranch*** was legally untenable. 25. The Defendants reiterated that the allocation of the disputed parcels was lawful, regular and undertaken in accordance with the applicable legal procedures. They therefore contended that the Plaintiff was not entitled to the declaratory, injunctive or cancellation orders sought. 26. Accordingly, the 3rd -13th Defendants prayed for dismissal of the suit with costs, maintaining that the allocation of the parcels was lawful and that the reliefs sought by the Plaintiff were unmerited and, in part, incapable of being granted. ***PLAINTIFF’S CASE*** 1. ***PW1:Johnson Kikuya Parameres***, adopted his witness statement dated ***12th May 2023,*** as part of his evidence and produced his list of documents as exhibits, and testified that he is the son of the late ***Paremeres Ole Koilel***; that his late father was ***Member No. 11,*** of the 1st Defendant***, Moshoro Group Ranch,*** and was lawfully allocated a parcel of land within the Group Ranch on or about ***3rd December 1983***; and that ***Moshoro Group Ranch,*** initially comprised 43 registered members. 2. He testified that on or about ***July 1998***, the Defendants sought to introduce six new members into the ***Group Ranch,*** prompting his late father to institute the present suit and obtained court orders restraining the Defendants from implementing the impugned decisions; that in the pendency of the suit, the Defendants, in ***July 2000***, applied for and obtained the ***consent*** of the ***Land Control Board*** to transfer portions of the Group Ranch land to individuals without the knowledge or consent of the deceased. 3. The witness further testified that the Defendants ***unlawfully*** altered the Group Ranch register by ***increasing*** the membership from ***43 to 56 members***, with five of the newly included members being allocated portions of his late father’s land; that the Defendants were aware of the existing court orders and the deceased’s objections but nonetheless proceeded to procure titles in disregard of the law governing Group Ranches. 4. PW1 further testified in regard to the ***Sunguyia family,*** and explained that the beneficiaries who received some of the disputed parcels were related as brothers, and recounting the history of succession within that family. He also testified that the allocation of the disputed land was influenced by ***Ntari Ole Moshoro***, who was then the Chairman of the Group Ranch. Further, that the deceased had lodged a complaint with the ***Land Adjudication Officer, Narok,*** who agreed with the deceased’s grievances concerning the allocation of the land. 5. The witness further stated that the dispute had previously been determined by ***Justice Angawa***, rendering it ***res judicata***; and that his family and himself have remained in possession of the disputed land since ***1983***; he maintained that the land rightfully belongs to his late father, and urged the Court to consolidate all the disputed parcels of land back into land ***Parcel No. 877***, which he asserted belonged to the deceased. 6. Upon cross examination, ***PW1*** testified that the land was allocated to the ***Deceased*** in ***1993;*** that the Defendants have other parcels of land within ***Moshoro Group Ranch***; and that he had never seen the Defendants on the Suit Property. ***DEFENDANTS’ CASE*** 1. ***DW1:Kinki Ole Koilel***, adopted his witness statement dated ***18th September 2012,*** as his evidence in chief and produced his list of documents as ***DExhibits 1-6,*** and further testified that he is the 5th Defendant and ***Member No. 26 of Moshoro Group Ranch***; that the members of the ***Group Ranch*** convened several general meetings during which it was unanimously resolved that the ***Group Ranch*** be subdivided into individual parcels; and that pursuant to those resolutions, the ***Group Ranch Committee*** sought and obtained the requisite ***approvals*** and ***consents*** from the relevant authorities to subdivide the ***Ranch,*** and subsequently transfer the resultant parcels of land to individual members. 2. ***DW1*** further testified that following the subdivision, he was lawfully allocated land parcel No. ***CIS Mara/Nairragie Enkare/881***; that the title to the parcel was registered in his name on ***3rd May 2000***; and that he collected the title deed on ***4th September 2000.*** 3. It was his further testimony that he knew the deceased Plaintiff, who was ***Member No. 11*** of the Group Ranch; that the deceased’s parcel of land was ***CIS Mara/Nairragie Enkare/892,*** which was situated within the same neighborhood as his parcel of land, but was separated from it by ***Moshoro Primary School.*** 4. Further, that shortly before the Group Ranch records were closed and individual titles issued, the deceased instituted the present suit claiming ownership of ***Parcel No. 881***; and that the deceased thereafter forcefully entered and occupied a substantial portion of his land without any lawful justification. 5. He also testified that despite being issued with a title deed and requesting the deceased to vacate the land, the latter continued occupying a substantial portion of ***land parcel No. 881***, thereby preventing him from peacefully occupying, using and deriving benefit from his property. According to ***DW1***, the deceased had cultivated and grazed livestock on the said land parcel for over ***ten years,*** reaping the benefits therefrom to his detriment. 6. Therefore, ***DW1*** urged the Court to restrain the Plaintiff from the continued occupation of Land parcel No. ***CIS Mara/Nairragie Enkare/881,*** and to grant the reliefs sought by the Defendants. 7. Upon cross examination, DW1 testified that land **parcel *No.* *902*** belongs to him; that he has two other parcels of land; that he did not get his title deed through ***fraud***; that he obtained consent from the ***Land Control Board***; that he does not live on the suit land; and that he holds the title for the suit land. 8. After the close of viva voce evidence, the parties filed and exchanged their respective written submissions. The Plaintiff filed his written submissions dated ***23rd April 2026,*** through ***JN Paren & Co Advocates,*** and submitted as follows: 9. That the subdivision of land parcel ***No. CIS Mara/Nairagie Enkare/877,*** into land parcels ***Nos. 878–884,*** and the subsequent allocation thereof to the Defendants was ***unlawful,*** having been undertaken without the consent of the members of ***Moshoro Group Ranch,*** and in contravention of the ***Land (Group Representatives) Act (Cap. 287)*** (repealed); and that under ***Sections 13, 17 and 28*** of the Act; that dealings affecting ***Group Ranch*** ***land*** required the approval of the members; while the Group Representatives held the land in trust for the benefit of all members. It was further submitted that these principles have since been reaffirmed under ***Sections 6 and 8*** of the ***Community Land Act, 2016.*** 10. He further submitted that the Defendants’ titles were liable to cancellation under ***Section 26(1)(b)*** of the ***Land Registration Act,*** having been acquired illegally and unprocedurally. Reliance was placed on ***Arthi Highway Developers Ltd v West End Butchery Ltd & 6 Others [2015] Eklr;****,* ***Funzi Island Development Ltd & 2 Others v County Council of Kwale & 2 Others [2014] eKLR****, and* ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR***, for the propositions that illegality vitiates title, and that where the root of title is challenged, the registered proprietor bears the burden of proving the legality of its acquisition. 11. Further, the plaintiff submitted that the available evidence demonstrated that land parcel ***No. 877,*** belonged to the deceased and the said land was subdivided without his knowledge or consent, and that the Defendants failed to produce any lawful resolutions, minutes or approvals authorizing the subdivision; and that the impugned process was therefore void ab initio. 12. Reliance was placed on ***Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169*** *and* ***Phoenix of East Africa Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR,*** for the principle that a void act cannot confer legal rights. 13. On the claim for ***trespass,*** the Plaintiff submitted that the Defendants’ occupation of the suit land was unlawful and that he was entitled to protection of her proprietary rights and damages. Reliance was placed on ***Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR and Hosea Nyandika Mosagwe & 2 Others v County Government of Nyamira, ELC No. 21 of 2021****.* 14. Accordingly, the Plaintiff urged the Court to declare the ***subdivision and resultant titles unlawful***, order ***cancellation*** of the titles, restore ownership of the land to the deceased’s estate, declare the Defendants trespassers, award damages for trespass, and grant the costs of the suit. 15. The 3rd to 13th Defendants also filed their written submissions dated ***24th April 2026,*** through ***Agina& Associates Advocates,*** wherein they submitted that the Plaintiff had failed to prove his case on a balance of probabilities. 16. The Defendants further submitted that the subdivision of the mother parcel of land and the allocation of individual parcels to members of ***Moshoro Group*** ***Ranch,*** were undertaken ***lawfully*** following resolutions of the ***Group Ranch***, with the requisite consent of the ***Land Control*** ***Board;*** that the Plaintiff himself had been allocated land parcels ***Nos. CIS Mara/Nairagie Enkare/877 and 882***, and that he had unlawfully occupied portions of the Defendants’ land. 17. Further, that the Plaintiff had failed to prove the allegations of ***fraud and illegality***, emphasizing that fraud must be specifically pleaded and strictly proved. Reliance was placed on ***Vijay Morjaria* v *Nansingh Madhusingh Darbar & Another [2000] eKLR****,* ***Kinyanjui Kamau v George Kamau [2015] eKLR, Ndolo v Ndolo [2008] 1 KLR (G&F) 742****,* ***Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd [2004] eKLR****, and* ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others [2014] eKLR***. 18. In their submissions, the Defendants also relied on ***Sections 107 and 109*** of the ***Evidence Act*** on the burden of proof, and submitted that he who alleges must proof, and the plaintiff herein having alleged, had the duty of calling sufficient evidence to prove his claim. 19. The Defendants argued that the Plaintiff’s documentary evidence was ***inadmissible and unreliable***, and contended that some of the documents were uncertified while others, including the impugned minutes and correspondence, were forgeries; that the Plaintiff failed to establish that land parcels ***Nos. 878, 879,*** ***880, 881, 882 and 884,*** originated from land parcel ***No. 877***, and therefore failed to demonstrate any ***illegality*** on the Defendants’ titles. 20. On jurisdiction, the Defendants submitted that the suit offended the ***doctrine of exhaustion*** as the Plaintiff failed to invoke the ***Alternative Dispute Resolution Mechanisms (ADR)*** provided under the ***Land Adjudication Act*** and the ***Land (Group Representatives) Act,*** before approaching the Court. Reliance was placed on ***Daniel Musili Nyeki & 49 Others v Cabinet Secretary & Attorney General, ELC Petition No. 7 of 2021*** *and* ***Narok ELC Petition No. 22 of 2019****.* 21. The Defendants further submitted that the 1st Defendant had ceased to exist following the commencement of the ***Community Land Act,*** ***2016***, and that the officials had been improperly sued in their individual capacities. They urged the Court to dismiss the Plaintiff’s suit with costs and allow the Defendants’ counterclaim. 22. The Court has carefully considered the pleadings, the oral and documentary evidence adduced by the parties, the rival written submissions, the authorities relied upon, and the applicable law, and renders itself as follows; 23. From the pleadings and the evidence on record, it is evident that the dispute before the Court revolves around the legality of the subdivision of land parcel No. ***CIS Mara/Nairragie/Enkare/877****,* the subsequent registration of land parcels *Nos.* ***878, 879, 880, 881, 882 and 884****,* and the validity of the resultant titles. 24. However, before delving into the merits of this dispute, the Court shall determine certain preliminary issues raised by the Defendants, as they concern the competence of the suit and, if upheld, may dispose of the proceedings in whole or in part. 25. It is a settled principle of law that a court must first satisfy itself that it is properly seized of a matter before embarking on the determination of the substantive issues in controversy. This goes to the Court’s jurisdiction which gives the authority to hear and determine a matter. 26. Accordingly, the Court shall first determine the following preliminary issues: 27. ***Whether this Court has jurisdiction to entertain the present suit and, consequently, whether its jurisdiction was prematurely invoked in view of the dispute resolution mechanisms provided under the repealed Land Adjudication Act and the Land (Group Representatives) Act (Cap. 287) (repealed);*** 28. ***Whether the suit is competent against the 1st Defendant, Moshoro Group Ranch, following the coming into force of the Community Land Act, 2016;*** 29. ***Whether the suit against the 2nd Defendant is competent in view of his demise and the failure to substitute him; and*** 30. ***Whether the 3rd to 13th Defendants were properly sued in their capacities as officials of the 1st Defendant.*** 31. As to whether this Court has ***jurisdiction*** and whether its jurisdiction was ***prematurely invoked***, it was the Defendants submission that this Court lacks jurisdiction to entertain the present suit on the ground that the Plaintiff failed to exhaust the dispute resolution mechanisms established under the repealed ***Land Adjudication Act*** and the ***Land (Group Representatives) Act*** ,before approaching the Court. 32. According to the Defendants, the Plaintiff ought to have first pursued the statutory objection and appellate procedures provided under the above statutes before invoking the jurisdiction of this Court. 33. Jurisdiction is the lifeblood of every judicial proceeding. It is the authority donated by the ***Constitution or statute*** to a court to hear and determine a dispute. Where a court lacks jurisdiction, any proceedings undertaken are a nullity, regardless of the merits of the case. This principle has been firmly settled by the Court of Appeal in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1,*** where the court stated: ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.”*** 1. Similarly, the Supreme Court in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR,***reiterated that a court’s jurisdiction flows from either the ***Constitution or legislation,*** and cannot be expanded through judicial craft or the consent of the parties. 2. Closely intertwined with the question of jurisdiction is the doctrine of exhaustion. The doctrine requires that where Parliament has established a clear statutory procedure for the resolution of a dispute, that procedure ought to be exhausted before the jurisdiction of the Court is invoked. The rationale for the doctrine is to accord specialized statutory bodies the opportunity to discharge the mandate conferred upon them by Parliament before the intervention of the courts. 3. The principle was articulated by the Court of Appeal in ***Speaker of the National Assembly v Karume [1992] KLR 21***, where the Court held that where there exists a clear procedure for the redress of a particular grievance prescribed by the Constitution or statute, that procedure ought to be strictly followed. The Court of Appeal reaffirmed the doctrine in ***Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR****,* emphasizing that courts should not be the first port of call where Parliament has provided an effective alternative dispute resolution mechanism. 4. The issue for determination, therefore, is not whether this Court generally possesses jurisdiction to determine disputes relating to title to land. Under ***Article 162(2)(b***) of the Constitution as read together with ***Section 13*** of the ***Environment and Land Court Act,*** this Court undoubtedly has such jurisdiction. The question is whether, in the particular circumstances of this case, the Plaintiff was first required to pursue the dispute resolution mechanisms provided under the repealed ***Land Adjudication Act*** and the ***Land (Group Representatives) Act***, thereby rendering the present proceedings premature. 5. The court has carefully considered the evidence and exhibits on record. It is common ground that these proceedings were commenced in ***1998*** before the ***High Court***, at a time when the Plaintiff alleged that the officials of ***Moshoro Group Ranch*** were in the process of ***unlawfully subdividing*** and ***allocating*** his parcel of land to third parties contrary to the provisions of the ***Land (Group Representatives) Act***. Indeed, the record shows that interim orders were issued during the pendency of the proceedings restraining the implementation of the impugned decisions. 6. The Court is unable to agree with the Defendants that the present dispute falls within the objection and appellate procedures contemplated under ***Sections 26 and 29*** of the repealed ***Land Adjudication Act***. Those provisions principally concern objections to entries made in an ***Adjudication Register,*** and appeals arising therefrom. The Plaintiff’s grievance, however, is fundamentally different, as it challenges the legality of the resolutions allegedly passed by the officials of the Group Ranch; the alleged subsequent subdivision of the parcel of land allocated to the deceased; and the validity of the titles issued pursuant to that process. 7. The above are matters or issues relating to title, rectification of the register, cancellation of titles and allegations of illegality and fraud, all of which fall squarely within the jurisdiction of this Court, as contemplated under section 13 of the ***Environment and Land Court Act.*** 8. More importantly, the Court cannot ignore the chronology of events. The present suit was instituted long before the enactment of the ***Environment and Land Court Act, 2011***, the ***Community Land Act, 2016,*** and before the impugned subdivision process had been fully concluded. The Defendants have not demonstrated that, at the time the suit was instituted, the Plaintiff had bypassed any ***mandatory statutory dispute resolution mechanism*** then available to him. Neither have they demonstrated that the Plaintiff was under a legal obligation to discontinue proceedings that were already properly before a court of competent jurisdiction, and commence fresh proceedings before a statutory forum. 9. In the circumstances, this court finds and holds that the doctrine of exhaustion is inapplicable to the peculiar facts of this case. Consequently, the Plaintiff cannot be said to have prematurely invoked the jurisdiction of this Court. 10. Accordingly, the court finds and holds that this Court is properly seized of the dispute, and has the requisite constitutional and statutory mandate to determine the issues arising herein. The Defendants’ ***objection on jurisdiction*** and the ***doctrine of exhaustion*** therefore fails. 11. Having found that this Court is properly seized of the present dispute and that its jurisdiction was not prematurely invoked, the court turns to consider the remaining preliminary objections raised by the Defendants; the next being whether the suit is competent against the 1st Defendant, ***Moshoro Group Ranch***, following the repeal of the ***Land (Group Representatives) Act (Cap. 287***), and the coming into force of the ***Community Land Act, 2016.*** 12. The Defendants contended that the 1st Defendant ceased to exist upon the coming into force of the ***Community Land Act, 2016***, and consequently lacks the legal capacity to sue or be sued. They argued that, having become defunct by operation of law, the proceedings against the 1st Defendant are incompetent and ought to be struck out. 13. The question for determination is therefore whether the repeal of the ***Land (Group Representatives) Act,*** and the commencement of the ***Community Land Act, 2016***, rendered the present suit incompetent notwithstanding that it had been instituted long before the legislative transition. 14. It is not in dispute that these proceedings were instituted in ***1998,*** at a time when the ***Land (Group Representatives) Act*** ,was the governing statute regulating Group ranches. Under that Act, Group Representatives constituted a body corporate capable of suing and being sued in their corporate name. Accordingly, at the time this suit was commenced, the 1st Defendant was a legally recognized entity capable of being sued. 15. The Defendants’ objection is predicated on the assertion that the enactment of the ***Community Land Act, 2016*** automatically extinguished the legal existence of all Group Ranches established under the repealed Act. The court does not find support for that proposition either in the statute itself or in the applicable principles governing the effect of repealed legislation. 16. The starting point is ***Section 23(3)(e)*** of the ***Interpretation and General Provisions Act, Cap. 2,*** which provides that, unless a contrary intention appears, the repeal of a written law does not affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability acquired or incurred under the repealed law. Such legal proceedings may be instituted, continued or enforced as if the repealed law had not been enacted. 17. Equally significant are the transitional provisions contained in the ***Community Land Act, 2016.*** Section 46 preserves existing rights and transactions that had accrued before the commencement of the Act, while ***Section 47*** expressly contemplates the continuation of Group Representatives by requiring those elected under the repealed ***Land (Group Representatives) Act*** to be reconstituted into ***Community land Management Committees*** and ***re-registered*** in accordance with the new statutory framework. The Act further provides that title documents issued to Group Representatives under the repealed Act shall continue in force until new titles are issued in accordance with the Act. These provisions demonstrate that Parliament intended an orderly transition from the previous regime rather than the immediate extinction of existing rights, obligations and legal relationships. 18. Furthermore, it is a well-established principle of statutory interpretation that legislation is presumed to operate prospectively unless Parliament expressly provides otherwise. In ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR***, the Supreme Court held that legislation should not be construed as having retrospective effect so as to impair accrued rights or impose new legal consequences in the absence of clear legislative intention. 19. In the present case, the Defendants did not place before the Court any evidence to demonstrate that ***Moshoro Group Ranch*** had, in fact, been dissolved or otherwise ceased to exist pursuant to the transition mechanisms provided under the ***Community Land Act.*** More importantly, even assuming that the Group Ranch subsequently underwent transition under the new statutory regime, that fact alone would not invalidate proceedings that had already been lawfully instituted while the 1st Defendant enjoyed full legal personality under the repealed Act. 20. It is the Court considered view that the repeal of the ***Land (Group Representatives) Act,*** neither extinguished accrued rights nor rendered pending proceedings incompetent. To hold otherwise would be contrary to ***Section 23(3)(e)*** of the ***Interpretation and General Provisions Act*** and inconsistent with the transitional framework established under the ***Community Land Act, 2016.*** 21. Accordingly, this court finds ***no merit*** in the Defendants’ ***objection*** that the suit against the 1st Defendant is incompetent, and consequently, the said objection is hereby rejected, and /or disallowed. 22. Further, the Defendants contended that the suit against the 2nd Defendant, ***Ntari Moshoro***, is incompetent on the ground that he passed away nearly ***thirty years ago,*** and was never substituted; and that the suit consequently abated as against him and cannot be maintained. 23. The Plaintiff did not specifically address this issue. The Court must therefore determine whether the Defendants have laid a sufficient factual and legal basis to warrant a finding that the suit against the 2nd Defendant has abated. 24. It is settled law that he who alleges must prove. ***Sections 107(1)*** and ***109 of the Evidence Act***, places the legal and evidential burden upon the party asserting the existence of a particular fact. The Defendants, having alleged that the 2nd Defendant died nearly thirty years ago, bore the burden of proving that fact. 25. While the Defendants pleaded that the 2nd Defendant is deceased, no documentary evidence was tendered before this Court to prove the alleged death. No death certificate, burial permit, grant of representation, letter from the relevant civil registry, or any other admissible evidence was produced to establish that the 2nd Defendant is indeed deceased. Neither was oral evidence led to prove the date or circumstances of his alleged demise. 26. It is trite that pleadings are not evidence and that facts pleaded must be proved by evidence. In ***CMC Aviation Ltd v Cruisair Ltd (No. 1) [1978] KLR 103****,* the Court held that pleadings contain the averments of the parties, but they are not evidence of the facts pleaded. Likewise, in ***Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR***, the Court of Appeal reiterated that parties are bound by their pleadings, but the averments contained therein must nevertheless be proved by evidence. 27. Consequently, in the absence of evidence proving that the 2nd Defendant is deceased, the Court cannot make a finding that the suit has abated as against him. To do so would be to base a judicial determination on unproved allegations rather than evidence properly placed before the Court. 28. Accordingly, the court finds and holds that the Defendants have failed to discharge the burden of proving that the 2nd Defendant is deceased. The objection founded on the alleged abatement of the suit against the 2nd Defendant therefore fails and is hereby dismissed. 29. The 3rd to 13th Defendants further contended that they were improperly sued in their capacities as officials of ***Moshoro Group*** ***Ranch.*** Their position was that, the ***Group Ranch*** having allegedly ceased to exist upon the coming into force of the ***Community Land Act, 2016***, the officials could not be sued on behalf of a non-existent entity. 30. It is evident from the ***Further Amended Plaint*** that the Plaintiff’s complaint is not merely directed against the 1st Defendant as a corporate entity. Rather, the Plaintiff alleges that the officials of the ***Group Ranch unlawfully*** convened meetings, admitted new members into the Group Ranch, authorized the subdivision of the deceased’s allocated land, procured the consent of the ***Land Control Board***, and facilitated the issuance of titles in favour of the beneficiaries. The Plaintiff has further pleaded ***fraud, illegality and breach*** ***of the statutory duties*** imposed upon the officials of the Group Ranch. 31. The pleadings further reveal that some of the Defendants were not only officials of the Group Ranch, but were also the beneficiaries of the impugned subdivision, and the registered proprietors of the resultant parcels whose titles are directly challenged in these proceedings. 32. The reliefs sought by the Plaintiff include *declarations of invalidity, cancellation of titles, rectification of the land register and consequential orders affecting those parcels.* Such reliefs cannot be effectively determined in the absence of the persons in whose names the impugned titles are registered. 33. The law on joinder of parties is well settled, and particularly under ***Order 1 Rule 3*** of the ***Civil Procedure Rules***, all persons against whom any right to relief is alleged to exist arising out of the same transaction or series of transactions may be joined as defendants. Further, ***Order 1 Rule 9 of the said rules,*** provides that no suit shall be defeated by reason only of the misjoinder or non-joinder of parties, and the Court may in every suit determine the matters in controversy so far as regards the rights and interests of the parties actually before it. 34. The Supreme Court in ***Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 7 Others [2014] eKLR,***observed that the presence of a party is necessary where his participation is required to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the proceedings. 35. Likewise, in ***Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55****,* the Court stated that a necessary party is one whose presence before the Court is essential for the effectual and complete determination of all the issues in controversy. 36. In the present case, the allegations against the 3rd to 13th Defendants are substantive and not merely representative. The Plaintiff attributes specific acts and omissions to them and seeks reliefs that directly affect their legal rights and interests. Their presence before the Court is therefore necessary to enable the Court effectually and completely determine the questions in controversy. 37. Consequently, the finds and holds that the 3rd to 13th Defendants were properly joined in these proceedings. Therefore, the objection that the said Defendants were improperly sued as officials of the 1st Defendant ***is devoid of merit*** and is hereby dismissed. 38. Having dealt with the ***preliminary issues*** and having found that none of the objections raised by the Defendants is merited, the court proceeds to consider the substantive issues arising forthwith as follows: 39. ***Whether the subdivision of land Parcel No. Cis Mara/Nairagie/Enkare/877 into land Parcels Nos. 878, 879, 880, 881, 882 and 884 was lawful.*** 40. ***Whether the resultant titles were lawfully acquired and are liable to cancellation.*** 41. ***Whether the Defendants are trespassers upon the suit property.*** 42. ***Whether the Plaintiff is entitled to the reliefs sought in the Further Amended Plaint.*** 43. As to whether the subdivision of Parcel No. ***CIS Mara/Nairagie/Enkare/87,7*** into land parcels ***Nos. 878, 879, 880, 881****,* ***882*** *and* ***884*** was lawful, the Plaintiff’s case is premised on the contention that the deceased was lawfully allocated land parcel No. ***CIS Mara/Nairagie/Enkare/877,*** as a member of ***Moshoro Group Ranch,*** and that the Defendants, while serving as officials of the Group Ranch, unlawfully subdivided the said land parcel and caused the resultant land parcels to be registered in the names of the ***5th and 10th to 13th Defendants*** without the deceased’s knowledge or consent. 44. Conversely, the Defendants maintained that the subdivision was undertaken pursuant to resolutions of the members of the ***Group Ranch*** and with the requisite approval of the ***Land Control*** ***Board.*** The Defendants denied any ***fraud, illegality or procedural*** ***impropriety*** in the ***allocation process*** and maintained that the resultant titles were lawfully issued. 45. The burden of proving that the subdivision was ***unlawful*** rested upon the Plaintiff. ***Sections 107, 108 and 109*** of the ***Evidence Act*** place the burden of proof upon the party asserting the existence of a particular fact. Further, where fraud or illegality is alleged, the law requires that such allegations be specifically pleaded and strictly proved. This principle was reiterated in ***Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR****,* ***Kinyanjui Kamau v George Kamau [2015] eKLR****, and* ***Ndolo v Ndolo [2008] 1 KLR (G&F) 742****.* 46. The Plaintiff produced evidence showing that the deceased was a member of ***Moshoro Group Ranch,*** and contended that he had been allocated Land ***parcel No. 877***. It was further the Plaintiff’s case that the meetings allegedly held on ***31st March 1998 and 8th May* *1998,*** through which new members were introduced and portions of the deceased’s land allocated to them, were ***irregular,*** ***unlawful*** and held in contravention of the governing law. 47. The Plaintiff also relied on correspondences exchanged with the ***Land Adjudication Office*** and maintained that, despite the pendency of this suit, the Defendants proceeded to obtain the consent of the ***Land Control Board*** and procured titles over the disputed parcels of land, thus depriving the Plaintiff of the deceased lawful acquired land. 48. It is common ground that the deceased was a member of ***Moshoro Group Ranch,*** and that land parcel ***No. 877,*** was subsequently subdivided, with the resultant parcels being registered in the names of the ***5th and 10th to 13th Defendants***. Neither the subdivision nor the subsequent registration of the resultant parcels of land is disputed. The dispute before this Court is whether the process leading to the subdivision and registration was lawful. 49. The Plaintiff’s case is that the ***subdivision*** of land ***parcel No. 877,*** was ***unlawful***; and that the officials of the Group Ranch convened ***irregular meetings***, ***unlawfully admitted*** ***new members*** into the Group Ranch, and allocated portions of the deceased’s land without his knowledge or consent. 50. The Defendants, on the other hand, maintained that the subdivision was sanctioned by the members of the Group Ranch; and that the process was undertaken pursuant to valid resolutions, approved by the ***Land Control Board***, and resulted in the ***lawful issuance of titles*** to the beneficiaries. 51. The burden of proving the alleged illegality rested upon the Plaintiff. ***Sections 107(1)*** and ***109*** of the ***Evidence Act*** provide that he who alleges must prove, and it is equally trite law that ***allegations of fraud or illegality*** must not only be specifically pleaded, but must also be strictly proved. Although the standard of proof is higher than on a balance of probabilities, it is not as onerous as proof beyond reasonable doubt. This principle was affirmed in ***Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, Kinyanjui Kamau v George Kamau [2015] eKLR, and Ndolo v Ndolo [2008] 1 KLR (G&F) 742.*** 52. The Court has carefully examined the documentary evidence produced by both parties. The Plaintiff relied on the Group Ranch records, the impugned minutes of the meetings held ***on 31st March 1998 and 8th May 1998*,** correspondence exchanged with the ***Land Adjudication Office***, and the subsequent registration documents. 53. The Defendants, on their part, relied on the minutes of the ***Group Ranch*** meetings, the consent of the ***Land Control Board*** and the titles issued in respect of the resultant parcels. 54. The Plaintiff’s main complaint is that the officials of the Group Ranch acted outside the powers donated to them under the ***Land (Group Representatives) Act (Cap. 287) (repealed***). The Plaintiff argued that the officials had no authority to unilaterally alter the Group Ranch membership, allocate portions of the deceased’s parcel to third parties or procure subdivision of the land without the approval of the members of the Group Ranch. 55. The plaintiff relied on ***Sections 13, 17 and 28*** of the repealed ***Act,*** which imposed ***fiduciary obligations*** upon the Group Representatives, and required that dealings affecting Group Ranch land be undertaken in accordance with resolutions of the members. 56. This Court concurs that under the repealed ***Land (Group Representatives) Act***, the officials of a Group Ranch did not hold absolute powers over Community land. They held the ***land in trust*** for the benefit of the members, and were required to exercise their mandate in accordance with the Act, and the resolutions of the members. Any allocation or subdivision undertaken outside those statutory parameters would be amenable to challenge before the Court. 57. However, it is equally true that not every allegation of ***irregularity is sufficient to invalidate*** an otherwise completed registration process. The Court must interrogate whether the evidence adduced demonstrates that the impugned subdivision was undertaken in contravention of the law, and whether the alleged procedural irregularities were of such magnitude as to vitiate the resultant titles. 58. In determining that question, the Court must also bear in mind the provisions of ***Section 26(1)*** of the ***Land Registration Act***, which accord ***a certificate of title prima facie*** validity while permitting impeachment where it is shown that the title was acquired through ***fraud or misrepresentation*** to which the registered proprietor was a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme. 59. As was held by the Court of Appeal in ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR***, once the root of a title is challenged, the registered proprietor must go beyond merely producing the title deed and demonstrate the legality of the process through which it was acquired. The Defendants titles were challenged, and they had a duty to demonstrate the legality of the process that led to acquisition of their impugned titles. 60. In the present case, the Defendants did more than merely place the Certificates of title before the Court. Through the testimony of ***DW1,*** the Defendants explained that the subdivision of the Group Ranch was preceded by several meetings of the members, resolutions authorizing subdivision, and the procurement of the requisite consent from the ***Land Control Board*** before the resultant parcels were registered in the names of the beneficiaries. DW1 further testified that he was lawfully allocated his parcel of land, whereupon a title deed was issued in his favour on ***3rd May 2000***. That evidence was not materially shaken during cross-examination. 61. On the other hand, although the Plaintiff maintained that the meetings of ***31st March 1998*** and ***8th May 1998,*** were irregular and that new members were unlawfully introduced into the Group Ranch, the evidence tendered falls short of establishing those allegations to the requisite standard. The Plaintiff produced copies of minutes, correspondence and other documents in support of his case. However, several of those documents were vigorously challenged by the Defendants, who questioned both their authenticity and evidential value. 62. Significantly, the Plaintiff did not call any member of the Group Ranch who allegedly attended the impugned meetings to testify that the resolutions complained of were never passed or that the minutes relied upon by the Defendants were fabricated. Equally, none of the makers of the impugned correspondence or minutes was called to authenticate those documents. The Court is therefore left with conflicting documentary evidence whose authenticity was disputed, but not satisfactorily resolved through independent evidence. 63. While the Plaintiff alleged that the Defendants unlawfully increased the membership of the Group Ranch from ***43 – 56*** ***members,*** and thereafter allocated portions of the deceased's land to the newly admitted members, no documentary evidence was placed before the Court to demonstrate when the alleged additional members were admitted; the procedure through which they were admitted; or that such admission contravened the governing statute. Allegations, however serious, cannot substitute proof. 64. The Plaintiff also contended that the subdivision proceeded notwithstanding the pendency of this suit and the existence of interim court orders. However, beyond making that assertion, no evidence was tendered demonstrating that the ***Land Control Board*** ***consent*** or the subsequent registration of the resultant parcels was undertaken in deliberate disobedience of any subsisting court order. The Court cannot infer contempt or illegality without cogent evidence. 65. The Court further notes that whereas the Plaintiff challenged the legality of the subdivision process, no ***survey evidence***, ***Mutation Forms***, ***Registry Index Maps*** or evidence from the ***Land Registrar or Survey Department*** was produced to demonstrate that the resultant parcels were unlawfully excised from ***Land parcel No. 877,*** or that the subdivision process itself violated the applicable statutory requirements. 66. In addition, although the Plaintiff alleged that the deceased remained in possession of the suit property, PW1 admitted during cross-examination that he had never seen the Defendants on the suit property. That admission substantially weakens the Plaintiff's contention that the Defendants unlawfully entered upon and occupied the land belonging to the deceased. 67. Having carefully evaluated the totality of the evidence, the court is not persuaded that the Plaintiff has discharged the burden of proving that the subdivision of ***land parcel No. 877,*** was undertaken ***illegally, fraudulently or in contravention*** of the applicable law. The evidence establishes that there was a long-standing disagreement concerning the subdivision of the Group Ranch. It does not, however, establish the specific acts of ***illegality*** as pleaded in the ***Further Amended Plaint***. 68. Accordingly, the Court finds and holds that the Plaintiff has failed to prove his case on the required standard of balance of probabilities that the subdivision of land ***parcel No. 877,*** was unlawful and fraudulent. 69. Having found that the Plaintiff failed to establish the alleged ***illegality in the subdivision process***, it follows that the claim for ***cancellation*** of the resultant titles must equally be considered in light of the provisions of ***Section 26(1)*** of the ***Land Registration Act.*** 70. Further, under Section 24(a) of the ***Land Registration Act***, registration of a Certificate of title vests in a ***proprietor absolute ownership*** of land together with all rights and privileges appurtenant thereto. ***Section 25(1)*** protects those rights from challenge except as provided by law, while ***Section 26(1)*** obliges the Court to treat a ***certificate of title*** ***as prima facie*** ***evidence*** that the registered proprietor is the ***absolute and indefeasible*** ***owner, u***nless it is demonstrated that the title was acquired through ***fraud, misrepresentation, illegality, unprocedural*** means or ***a corrupt scheme.*** 71. The Court of Appeal in ***Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR,*** held that a title obtained through fraud or illegality cannot enjoy the protection afforded by the law. Likewise, in ***Funzi Island Development Limited & 2 Others v County Council of Kwale & 2 Others [2014] eKLR****,* the Court reiterated that the sanctity of title cannot shield an acquisition founded upon an unlawful process. 72. Equally, as was held in ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR****,* where the root of title is challenged, the registered proprietor must demonstrate the legality of its acquisition. In the present case, the Defendants discharged that evidential burden by explaining the process through which the subdivision was undertaken, the approvals obtained and the eventual issuance of the titles. 73. The Plaintiff, however, failed to prove that those titles were procured through ***fraud, illegality or an unprocedural process***. The Court cannot order ***cancellation of registered titles*** on the basis of suspicion, conjecture or unresolved allegations. Cancellation of title is a drastic remedy that can only issue upon clear and cogent proof of one of the grounds contemplated under ***Section 26(1)*** of the ***Land Registration Act.*** 74. Consequently, the court finds and holds that the Plaintiff has failed to establish any legal basis upon which the titles held by the Defendants herein may be impeached or cancelled. 75. The Plaintiff further sought a declaration that the Defendants are trespassers upon the suit property, and an award of damages for trespass. The claim is predicated upon the assertion that the Defendants unlawfully entered upon the deceased’s land following the impugned subdivision and registration of the resultant parcels. 76. ***Trespass*** to land consists of an unjustifiable intrusion by one person upon land in the possession of another. The tort is actionable at the instance of a person who proves a better right to possession than the alleged trespasser. In ***Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR***, the Court held that trespass is any unjustifiable intrusion upon land in the possession of another and that where ownership is established, trespass is actionable. 77. In the present case, the Plaintiff’s claim of trespass is entirely dependent upon the success of his challenge to the legality of the subdivision and the resultant titles. Having found that the Plaintiff failed to establish that the subdivision was unlawful or that the titles held by the Defendants are liable to cancellation, it therefore follows that the foundation upon which the claim for trespass rests has not been established. 78. Moreover, the evidence adduced by the Plaintiff did not demonstrate that the Defendants unlawfully entered upon or occupied land ***parcel No. 877***. Indeed, ***PW1*** conceded during cross-examination that he had never seen the Defendants on the suit property. That admission substantially undermines the allegation that the Defendants were in ***unlawful occupation*** of the deceased's land. 79. Conversely, DW1 testified that it was the deceased who had entered and continued occupying a portion of his land following the issuance of title. Whether that allegation is true or otherwise, it further demonstrates that the evidence before the Court does not establish the Plaintiff’s pleaded case that the Defendants trespassed onto the deceased’s land. 80. Consequently, the Court finds and holds that the Plaintiff has failed to prove the claim of trespass on the required standard of abalance of probabilities. The prayer for a declaration that the Defendants are trespassers and the attendant claim for damages for trespass therefore fail. 81. Having found that the Plaintiff failed to prove that the subdivision of land parcel No. **877,** was u***nlawful***; failed to establish any basis for impeaching the resultant titles under ***Section 26*** of the ***Land Registration Act***, and failed to prove the claim for trespass, it follows that the declaratory, injunctive and consequential orders sought in the Further Amended Plaint cannot issue and the said prayers fail entirely and/ or are disallowed. 82. The Court is alive to the fact that the dispute has remained pending for many years. Nevertheless, the Court is bound to determine the case solely on the evidence presented I court by the parties, and in accordance with the applicable law. Suspicion, however strong, cannot take the place of proof, particularly where serious allegations of fraud and illegality are made. 83. The Plaintiff bore the burden of proving the pleaded allegations against the Defendants, which burden he failed to discharged on the required standard. Having carefully considered the entire record, the court is not satisfied that the Plaintiff has adequately discharged that burden of proof to the standard required by law. 84. Consequently, and as a result to the stated failure, the Court finds and holds that the Plaintiff has not to proved his case against the Defendants herein on required standard of balance of probabilities. Accordingly, Judgment is hereby entered as follows; 85. ***The Plaintiff’s Further Amended Plaint dated 8th March 2023 is hereby dismissed, entirely.*** 86. ***The prayers seeking declarations that the subdivision of Parcel No. CIS Mara/Nairagie/Enkare/877, was unlawful, and prayers for cancellation of the resultant titles, rectification of the register, declarations of trespass, permanent injunctions and damages are declined.*** 87. ***The titles held by the registered proprietors of the resultant parcels of land shall remain undisturbed.*** 88. ***The Plaintiff shall bear costs of the suit.*** **It is so ordered.** ***Dated, Signed and Delivered Virtually at Narok this, 2nd Day of July 2026.*** ***L. GACHERU*** ***JUDGE*.** ***Delivered online in the presence of:*** ***Elijah Meyoki – Court Assistant*** ***Mr Musyoka for the Plaintiff.*** ***No appearance for the 3rd to 13th Defendants.*** ***L. GACHERU*** ***JUDGE***