Lakeview Investment Ltd v Odero (Sued as the Chairman, Nairobi Kenya Secondary Schools Heads Association) & another (Environment and Land Case 280 of 2017) [2026] KEELC 4884 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. 280 OF 2017** **LAKEVIEW INVESTMENT LTD:::::::::::::::::::::::::::::::::::::: PLAINTIFF** **VERSUS** **PROF. JOHN PAUL ODERO** *(sued as the Chairman, Nairobi Kenya**Secondary Schools Heads Association)***:::::::::::::::::::::::::::::::::::::::::: 1ST DEFENDANT** **SHEILA LIKHWECHI ASHIONO:::::::::::::::::::::::::::::::2ND DEFENDANT** **JUDGEMENT** The Plaintiff avers that its principal business is buying land, subdividing the same into sub-plots and selling the sub-plots to potential purchasers. That at all material times relevant to this suit, the Plaintiff was and still is are the beneficial owners of all that parcel of land known as Machakos/Mavoko/20154, Machakos/Mavoko/20155, Machakos/Mavoko/20156, Machakos/Mavoko/20159, Machakos/Mavoko/20157, Machakos/Mavoko/20160, Machakos/Mavoko/20158, Machakos/Mavoko/20161, Machakos/Mavoko/20162 and Machakos/Mavoko/20163 respectively hereinafter The Plaintiff avers that it purchased the suit properties from one Janifer N. Waithera (now deceased] vides an Agreement for Sale dated 23rd October, 2008 for valuable consideration of Kshs, 8,000,000 which it paid in full. The Plaintiff avers that at the time of the said purchase, the Vendor therein, the said Janifer N. Waithera presented herself to the Plaintiff as the beneficial and legal owner of the suit properties by virtue of being in possession of Deed Plans for the respective ten [10] blocks to wit Deed Plan No. 224209 for L.R. No. 20154, Deed Plan No. 224210 for L.R. No. 20155, Deed Plan No. 224211 for L.R. No. 20156, Deed Plan No. 224212 for L.R. No. 20157, Deed Plan No. 224213 for L.R. No. 20158, Deed Plan No. 224214 for L.R. No. 20159, Deed Plan No. 224215 for L.R. No. 20160, Deed Plan No. 224216 for L.R. No. 20161, Deed Plan No. 224217 for L.R. No. 20162 and Deed Plan No. 224218 for L.R. No. 20163 respectively. The Plaintiff avers that upon purchase of the suit properties, it contacted a surveyor who drew a sketch sub-division plan sub-dividing the suit properties into 93 sub-plots measuring 50 by 100ft which sub-plots it offered for sale to potential purchasers. The Plaintiff avers that since the suit properties were sold to it without title documents, it commenced the process of applying for title documents from the Ministry of lands and submitted the Deed Plans to the Ministry of Lands as proof of ownership of the suit properties without knowledge of any defect purportedly apparent on the face of the said Deed Plans. The Plaintiff avers that upon taking vacant possession of the suit properties on or about October, 2008, it enjoyed quiet and peaceful possession of the same until the year 2017 when the 1st Defendant claimed ownership of the suit property by virtue of a letter of allocation issued to them in 1993. The Plaintiff avers that sometimes in early June, 2017, the 1st Defendant accompanied by a group of people who identified themselves as officials of Nairobi Kenya Secondary Schools Heads Association trespassed on the suit properties and verbally notified the occupants thereon, including those who had purchased the sub-plots from the Plaintiff to vacate their respective portions or be forcefully evicted alleging that the suit properties were owned by the 1st Defendant. The Plaintiff avers that the 1st Defendant in its said acts of trespass, embarked on surveying the suit properties with a view to sub-divide the same by force which prompted the Plaintiffs representatives to file a report of trespass at Sabaki Police Post. The threatened acts of the 1st Defendant have caused fears and apprehension amongst the Plaintiff, its servants and/or occupants of the said plots who are innocent purchasers of portions of the suit plots and exposed them to untold waste, damage and destruction to the Plaintiff aforesaid parcels of land and unless Defendant is restrained by an order of this Court the Plaintiff shall suffer irreparable loss. The 1st Defendant’s action have and or will illegally deny the Plaintiff its quiet use, possession and enjoyment of its property and the Plaintiff has suffered loss. The Plaintiff avers that the letter of allotment dated 24th September, 1993 Reference No. 39711/XX/159 which forms the basis of the 1st Defendant’s claim of ownership over the suit properties is factually and legally vague and incapable of being enforced for reasons that it refers to an area measuring 10 hectares [25 acres] quite different from the portion which the Plaintiff occupies. The Plaintiff avers that the purported amalgamation of the suit properties by the 1st Defendant in May, 2001 which purportedly gave rise to L.R. No. 24561 was found unprocedural by the National Land Commission in the year 2017 and subsequently rendered null and void and subsequently cancelled which cancellation effectively had the effect of reverting the suit properties to its original numbers to wit L.R. Nos. 20154 to 20163 (the suit properties herein) currently occupied by the Plaintiff. The Plaintiff avers that it was an innocent purchaser without the 1st Defendant's alleged interest in the suit properties and having been in occupation of the same for over 25 years from October, 2008 to-date, any purported interest by the 1st Defendant is time-barred under the Limitation of Actions Act. The Plaintiff avers that the 2nd Defendant alleges ownership interest of a portion of L.R. No. Mavoko Town Block 12/3060, previously registered in the name of Julius Mwangi Kamau and has erected a permanent dwelling house on the suit properties and which title ironically has not been disputed by the 1st Defendant who claims interest of the entire suit properties (now referred to as L.R. No. 24561). The Plaintiff avers that there are other third parties who have also acquired interest over portions of the suit properties and have been issued with title documents in their respective names, namely, L.R. No. 20154 and L.R. No. 20154 which are registered in the name of Wilfred Kipngetich Chepochok and L.R. No. 20155 which is registered in the name Fredrick Oduor Makhoha thus rendering the purported amalgamation of the suit premises questionable and fraudulent and fortifies the Plaintiff’s position that the suit properties were not available for alienation. The Plaintiff avers that upon the cancellation of the alleged amalgamation of L.R. No. 20154 to L.R. No. 20163 in the year 2017 together with the sub-division scheme, the creation of a new deed Plan No. 418283 for L.R. No. 24561 to sanitize the irregularity by the Director of Surveys was an illegality and the subsequent sub-divisions of L.R. No. 24561 was an exercise in futility and therefore a nullity The Plaintiff prays for judgment against the Defendants for; 1. A permanent injunction restraining the Defendants jointly and severally, their agents and/or servants from alienating, trespassing on, transferring and/or in any other manner dealing adversely with land parcels known as Mavoko/Machakos L.R. No. 20154, L.R. No. 20155, L.R. No. 20156, L.R. No.20157, L.R. No. 20158, L.R. No. 20159, L.R. No. 20160, L.R. No. 20161, L.R. No. 20162 and L.R. No. 20163 (now known as 24561) situate within Mavoko Municipality in Machakos County. 2. A declaration that the Plaintiff is the legal and beneficial owner of parcels of land known as Mavoko/Machakos LR. No. 20154, Mavoko/Machakos, Mavoko/Machakos L.R. No. 20156 Mavoko/Machakos L.R No. 20156, Mavoko/Machakos L.R. No. 20156, Mavoko/Machakos L.R No. 20157, Mavoko/Machakos L.R. No 20158, Mavoko/Machakos L.R. No. 20159, Mavoko/Machakos LR No. 20160, Mavoko/Machakos LR. No, 20161, Mavoko/Machakos L.R. No. 20162 and Mavoko/Machakos L.R. No. 20163 situale within Mavoko Municipality in Machakos County. 3. An Order for cancellation of the title and registration of the 1st Defendant as proprietor of land parcel known as L.R. No. 24561 situate at Mavoko Municipality in Machakos County together with all the sub-titles arising from the alleged sub-division of L.R. No. 24561. 4. Costs of the suit. 5. Any other relief that this Honourable Court deems fit and just to grant. The 1st Defendant avers that it is the registered owner of the property known as LR NO.24561 (IR 193256) situate at Athi River Mavoko Municipality, Machakos County, which the Defendant lawfully and legally acquired through allotment of suit land, L.R Number 24561 (IR NO. 193256) and allotment reference number 39711/XX/159 to the 1st Defendant. That sometime in 1992, its members desired to own decent housing upon retirement and requested the Government of Kenya to be allocated land for development in that regard. To this end, the leadership of the 1st Defendant convened a meeting of its members at Jamhuri High School on 27th day of March, 1992 that 411 members of the Defendant attended, and in attendance was also the Provincial Director of Education. Members of the 1st Defendant registered their interest to be allocated land by the Government of Kenya for their personal development. The 1st Defendant further avers that on or about 24th September 1993, the Government accepted with authority F102749/1/DA/19 and issued three letters of allotment aggregating to 16 hectares (40 acres) land in Athi River, Mavoko Municipality, on the basis of Survey Plan Number 39711/XIX/157A of 1993, viz. 1. Unsurveyed Residential Plot, Correspondence File Number 39711/XX/159 Measuring 10 Ha (25 acres) or thereabouts, situate in Athi River, Mavoko Municipality, and comprising plot numbers 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35, which were afterwards surveyed as plot numbers 20154-20163 (the suit land); 2. Unsurveyed Residential plot, Correspondence File number 39711/XX/160 measuring 1 Ha (2.5 acres) or thereabouts, situate in Athi River, Mavoko Municipality, and comprising plot number 19; 3. Unsurveyed Residential Plot, Correspondence File Number 39711/XX/161 measuring 5 Ha (12.5 acres) or thereabouts, situate in Athi River, Mavoko Municipality, and comprising plot number 10. That the allotment was made in reference to Survey Plan Number 39711/XIX/157A of 1993. They were also issued the members of the Defendant with Part Development Plan showing the actual location of the said allotted Plots in Athi River. The conditions for allotment of the suit land; Unsurveyed Residential Plot Nos. 26, 27,28, 29, 30, 31, 32, 33, 34 and 35 Athi River (page 16 of 1st Defendant’s list of documents). DW1 Prof. John Paul Odero, the Defendant's Chairperson of the Teachers Land Committee testified that on or about 10th August 1994 he delivered a hand written letter to the Commissioner of Lands in which teachers acknowledged, thanked, and accepted the Governments offer for 16 Hectares [Ha] (40 acres) of land as set out in the three letters of allotment referenced; 39711/XX/159; 39711/XX/160 and 39711/XX/161 (page 17&18 of 1st Defendant’s list of documents). The 1st Defendant further states that on or about the same day, 10th August 1994, it drew out its National Bank of Kenya banker's cheque number 159452 for KES 866,210 for payment of statutory fees in respect of the stand premium and annual rent demanded in the three letters of allotment, out of which KES 662,200 was specifically for the suit land, LR NO.24561 (IR 193256) (page 19 to 22 of 1st Defendant’s list of documents). The 1st Defendant avers that the payment was first accepted, after which it received official receipt no. 049387 for Kshs. 662,200 dated 25th October 1994, issued for the said parcel of land, and finally recorded by accounts department of the Ministry of Lands in the 1994/1995 financial year book (page 23 to 30 of 1st Defendant’s list of documents). In the 1st Defendant's members meeting of 27th March, 1993, the 1st Defendant's members submitted their membership to Nairobi Secondary School Housing Company Limited, and the 1st Defendant took biodata for each teacher who taught in then Nairobi Province. Upon payment of the requisite membership fee to Nairobi Secondary School Housing Company Limited, all of which the Defendant receipted and banked, each teacher cast their ballot to be allocated land either in Dandora or Athi River that the 1st Defendant received from the Kenyan Government through allotment. The 1st Defendant prays for judgement against the Plaintiff for; 1. An Order for Eviction issues empowering the 1st Defendant to evict Lakeview Investment Limited, its agents, directors and any person claiming through Lakeview Investment Limited, from LR NO. 24561 (IR No. 193256) and from any sub-divisions of LR NO. 24561 (IR No. 193256); 2. A mandatory Order of Injunction issues compelling Lakeview Investment Limited, its agents, employees, or director(s) to, within 30 days of the Judgment herein or such period as the Court stipulates, remove such structures, developments, perimeter walls, buildings, foundations it has erected on the 1st Defendant's property LR NO. 24561 (IR No. 193256). 3. An Order of Permanent Injunction restraining Lakeview Investment Limited, its agents. employees, or director(s) from encroaching, trespassing, interfering with beacons, uprooting beacons, erecting fence(s), erecting structures, transferring, selling, selling, leasing, remaining upon, and/or in any other manner, dealing with the 1st Defendant's property LR NO. 24561 (IR No. 193256). 4. General damages for trespass; 5. Interest on (d) above at court's rates; 6. The OCPD and DCIO Athi River Police Station to enforce compliance with the Court Decree herein. g.) Costs to the suit The 2nd Defendant avers that she is the lawful owner and/or occupier of parcel land known as Mavoko Town Block 12/3060 having purchased the same through a sale agreement dated 9th January 2013. The Plaintiff does not have any lawful interest in the suit property and their claim is malicious, unsubstantiated, and is intended to unjustly deprive the 2nd Defendant of her lawful possession. The 2nd Defendant states that the Plaintiff's suit is an abuse of court process and is meant to interfere with the peaceful and quiet enjoyment of the land by the 2nd Defendant. The 2nd Defendant prays for; 1. A declaration that the 2nd Defendant is the lawful owner of the land parcel known Mavoko Town Block 12/3060. 2. A permanent injunction restraining the Plaintiff, his agents, servants, or assigns from entering, trespassing upon, or interfering with the 2nd Defendant peaceful occupation of the suit property. 3. Costs of the suit and counterclaim. This court has considered the evidence and the submissions therein. The 1st Defendant has demonstrated that they are the registered proprietor of the suit property LR NO. 24561 (IR No. 193256) (page 103 to 105 of 1st Defendant’s list of documents), having been issued with a certificate of title and according to the provisions of sections 24, 25 and 26 of the Land Registration Act their rights were unassailable. The said sections provide as follows: Section 24 of the Land Registration Act No 3 of 2012 provides as follows: ***The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.*** Section 25 (1) of the said Act further provides that: ***the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to any lawful encumbrances, set out in this section.*** Section 26 of the same Act provides that: ***the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge except*** ***a. on grounds of fraud, or misrepresentation to which to which the person is proved to be a party; or*** ***b. where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.*** Further, in Civil Appeal No. 246 of 2013 Arthi Highway Developers Limited vs West End Butchery Limited and Others,the Court of Appeal expressly stated thus: “Section 23(1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act set out below) gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of Titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” In the case of **Elijah Makeri Nyangw’ra vs Stephen Mungai Njuguna & Another (2013) eKLR**the court held that**:** “the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme.” **Hon. Justice Munyao Sila** in the case while considering the application of section 26(1) (a) and (b) of the Land Registration Act rendered himself as follows: - “….the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme. For the first limb, it appears to me that the title of the 1st defendant was obtained by fraud or misrepresentation. However, there is no evidence that the 1st defendant was a party to the fraud or misrepresentation. Indeed, to me the 1st defendant was an innocent purchaser for value. He was probably conned of his money by the 2nd Defendant and that is why he is the complainant in the first count of the criminal charges facing the 2nd Defendant. I am not of the view that he was a party to the fraud or misrepresentation that conveyed the land to him. He was a victim of the scheme employed by the 2nd defendant. I cannot therefore impeach the title by virtue of the provisions of section 26 (1) (a). Is the title impeachable by virtue of section 26(1) (b)? First, it needs to be appreciated that for section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of section 26(1) (b) is to remove protection from an innocent purchaser of innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of section 26(1)(b) in my view is to protect the real title holders from being deprived of the titles by subsequent transactions”. This court has carefully considered the documentary evidence produced in court. The 1st Defendant avers that, Survey Titling Index Numbers 20154 (Plot No. 26), 20155 (Plot No. 27), 20156 (Plot No. 28), 20157 (Plot No. 29), 20158 (Plot No. 30) 20159 (Plot No. 31), 20160 (Plot No. 32), 20161 (Plot No. 33), 20162 (Plot No. 34), and 20163 (Plot No. 35) were amalgamated, vide Amalgamation Folio No. 360 Register No. 6, that is, Amalgamation Plan FR 360/6 on 31st May 2001 into one block LR No.24561 (page 74 of 1st Defendant’s list of documents). Vide an application dated 31st March, 1995, the 1st Defendant sought for the authority of the Government to survey and sub-divide the three parcels of land, which approval was secured from the Commissioner of Lands vide his letter (Reference No 159930/14) of 22nd November 1995. The amalgamated block LR No.24561 was surveyed vide Survey Deed Plan No. 235101. (page 75 to 83 of 1st Defendant’s list of documents). I find that the suit land having been amalgamated on 31st May 2001 into Block LR NO.24561 the Plaintiff’s survey Titling Index Numbers 20154, 20155, 20156, 20157, 20158, 20159, 20160, 20161 20162 and 20163 could not exist thereafter. However, in a letter Reference Number 159930/51 dated 25th August, 2017, the National Land Commissioned raised a concern on the procedure used that saw the amalgamation of the Survey Titling Index Numbers 20154, 20155, 20156, 20157, 20158, 20159, 20160, 20161, 20162 and 20163 into Block LR NO.24561, as un-procedural as individual titles for Land Reference Numbers 20154, 20155, 20156, 20157, 20158 20159, 20160, 20161, 20162 and 20163 were not first produced, before amalgamation into Block LR No.24561. The National Land Commission instructed the Director of Surveys to prepare a new deed plan for Block LR No.20430, 20167 and 24561, (page 86 of 1st Defendant’s list of documents). By a letter dated 21st July, 2017, the Director of Surveys in his letter Reference Number INV/VOLII/15 to the National Land Commission, confirmed that the Survey of LR No. 24561 was carried out as per the approved Scheme Plan, with the relevant Survey Plans as FR 285/12 for Plots 2- 68, and Plot 134, and FR 285/13 for Plots 69-133. Consequently, therefore, pursuant to the said directive of the National Land Commission, a new Deed Plan No. 418283 dated 15th September 2017 for Block LR No.24561 was prepared by the Director of Surveys. (page 87 to 89 of 1st Defendant’s list of documents). On 13th November 2017, a Lease was issued to the 1st Defendant over LR NO.24561 (IR No. 193256) registering the 1st Defendant as the proprietor of LR NO.24561 (IR No. 193256) and a Certificate of Title in respect to LR No.24561 (IR No. 193256) duly issued to the 1st Defendant (page 103 to 105 of 1st Defendant’s list of documents). The 1st Defendant produced various correspondences confirming the 1st Defendant's proprietorship over LR No. 24561 (IR No. 193256) inter alia a letter dated 18th July 2017, the National Land Commission sought from the Director of Surveys whether survey of the Defendant's land LR No.24561 was done as per approved scheme plan. The Director of Survey confirmed to the National Land Commission vide a letter dated 21st July 2017 that indeed, the subdivision was as per the approved scheme plan. And in a letter dated 28th March 2017, the Director of Surveys affirmed that the Deed Plans prepared by the 1st Defendant's licensed surveyor were approved by them and are genuine (page 106 to 116 of 1st Defendant’s list of documents). In a letter dated 24th July, 2017, the Director of Surveys stated that the Deed Plans that the Plaintiff holds purportedly underlying his referred Land Reference Numbers 20154-20163 did not originate from the Director of Surveys and are not authentic Deed Plans (page 130 of 1st Defendant’s list of documents). The 1st Defendant stated that in May 2017, their commissioned surveyor, while in the process of restoring beacons over Block LR 24561 noted that two temporary iron sheet structures, that turned out to be Plaintiff's structures, had encroached into Block LR 24561. The Plaintiff’s agents chased them away and the 1st Defendant reported the incident at Sabaki Police Post. The 1st Defendant stated that despite trying to seek for a resolution to the source of the conflict the Plaintiff has persisted on frustrating the beacon restoration process on Block LR 24561. The 1st Defendant has reported to the Police Station, the National Land Commission, at the Sub-Administration Police Commander and at the Deputy County Commissioner but the Plaintiff has evaded all these dispute resolution forums which called for actual presentation of land ownership documents for verification and persists in stocking violence against the Defendant’s agents, members, and interfering with the 1st Defendant’s ownership and use of LR No. 24561 The Plaintiff, Joseph Oduor Okwaro testified as PW1 and stated that that it purchased the suit properties from one Janifer N. Waithera (now deceased) vide an Agreement for Sale dated 23rd October, 2008 for valuable consideration of Kshs, 8,000,000 which it paid in full. The Plaintiff avers that at the time of the said purchase, the Vendor presented herself as the beneficial and legal owner of the suit properties by virtue of being in possession of Deed Plans for the respective ten blocks. He produced the deed plans but stated that he did not have proof of payment of the purchase price, the allotment letter or transfer documents from the said Vendor. In a letter dated 1st July, 2021, John Dominic Obel, trading as Geomatics Services Ltd who surveyed and subdivided the Plaintiff's Plots states that the Deed Plans that the Plaintiff refers to as his, were produced for a different parcel of land LR No. 20164, and not for the Defendant's land, LR NO. 24561 (IR No. 193256). Notably, the owner of LR No. 20164 for which Deed Plans that the Plaintiff refers to as his were prepared, is Akwana Housing Cooperative Society, and not the Plaintiff (page 122 to 127 of 1st Defendant’s list of documents). I find that the Deed Plans that the Plaintiff filed in this suit as its ownership document for No. 24561 (IR No. 193256) are for a different parcel of land LR No. 20164. In a letter dated 9th April, 2021, the Director of Surveys asserted that Deed Plan Nos 224209-224218 claimed to have been issued to Joseph Oduor Okwaro were prepared for LR Nos.20164/32-20164/41 on F/R No. 350/58 and were never issued for LR No. 20154-20163. Further, in a letter dated 19th June 2020 from the Director of Surveys to the Directorate of Criminal Investigations, the Director of Surveys asserted that the Plaintiff's Deed Plans are for LR No. 20164 and do not correspond to the 1st Defendant’s land LR NO. 24561 (IR No. 193256) (page 138 of 1st Defendant’s list of documents). The Plaintiff has not produced any certificate of title. I find that the Plaintiff has failed to adduce evidence as to the root of his title as to the ownership of the suit land. The same situation applies to the 2nd Defendants’ evidence as to the root of her title. She stated that she is the lawful owner and/or occupier of all that parcel land known as Mavoko Town Block 12/3060 having purchased the same from Julius Mwangi Kamau a partner with the Plaintiff Company, through a sale agreement dated 9th January 2013. She produced the sale agreement and the title deed for land parcel No. Mavoko Town Block 12/3060 in the name of Julius Mwangi Kamau. She did not call any witness. 2nd Defendant did not produce the allotment letter, the deed plan or transfer documents for the said property. Section 109 of the Evidence Act Cap 80 is clear that; *''The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.''* The well-known mantra *“he who asserts must prove.”* Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows; *“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”* In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that; *“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:* *Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *Also, further, Section 108 of the Act states thus:* *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:* *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* I find that the Plaintiff’s and the 2nd Defendant’s evidence did not establish the root of their titles and cannot stand. They both claim to be bona fide purchaser. The definition of bona fide purchaser for value without notice is; *“that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest”.* Bona fide is a Latin word meaning good faith, without fraud, sincere, genuine. See (Black’s Law Dictionary 9th Edn Page 199) A bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller’s title (See page 1355 Black’s Law Dictionary 9th Edn). It is trite law that a person who relies on the defence of bona fide purchaser for value without notice has the burden to prove that he or she acted in good faith. The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice cover both actual and constructive notice of fraud. In the case of Jones vs Smith (1841) I Hare 43, the Chancery Court held; *“a purchaser has constructive notice of fraud if he had actual notice, that there was some encumbrance and a proper inquiry would have revealed what it was (but if) it abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made...then the defence cannot be available to him or her”* In Yakobo M. N Senkungu & Others vs Cresencio Mukasa Civil Appeal No 17 of 2014. The court reaffirmed the law regarding the importance of due diligence in land transactions holding that; *“…Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase.”* And as in the Supreme Court decision in Dina Management Limited vs County Government of Mombasa (2023) KESC 30 (KLR), the Court went on to hold that, once the root of the title has been challenged, a party cannot derive benefit from the doctrine of bona fide purchaser. I find that the suit land had already been allocated to the 1st Defendant in 1993 and was not available for sale to the Plaintiff in 2008 and to the 2nd Defendant in 2013. The 1st Defendant claims damages for trespass against the Plaintiff. He stated that in May 2017, when his surveyor, while in the process of restoring beacons over Block LR 24561 noted that two temporary iron sheet structures, that turned out to be Plaintiff's structures, had encroached into Block LR 24561. The Plaintiffs chased him away and the 1st Defendant reported the incident at Sabaki Police Post. This happened on several different occasions and the Plaintiff keeps interfering with their ownership. He however does not know the 2nd Defendant. On the issue of trespass, the Court of Appeal was of this opinion in Jamal Salim vs Yusuf Abdulahi Abdi & another (2018) eKLR and stated that; *“In the text Clerk & Lindsell on Torts, Sweet & Maxwell, 18th Edition, at page 923, trespass to land is defined as follows: - "Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another.* *At page 927 of the same text discusses who may sue for trespass and it states as follows: - “Trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction, or both... Similarly, a person in possession can sue although he is neither owner nor derives title from the owner, and indeed may be in possession adverse to the owner.”* *It is therefore not necessary for one to establish ownership of land to sustain a claim for trespass. It is enough that the person suing is in possession.”* The 1st Defendant averred that the Plaintiff has unlawfully encroached on the said suit land and constructed thereon illegal structures and has denied the 1st Defendant access to the said suit land thereby denying the Defendants developing the plot. In Philip Ayaya Aluchio vs Crispinus Ngayo (2014) eKLR the court held that; *“The defendant has constructed on the plaintiff's land. This in itself is damage and wastage of the plaintiff's land. The plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage?. It has been held that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately before and immediately after the trespass or the cost of restoration, whichever is less. See Hostler – VS – GreenPark Development Co. 986 S. W 2d 500 (No. ct App. 1999).* *The plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess general damages for trespass. There was no evidence adduced on the nature of house which the defendant has constructed on the suit land. The court is at a disadvantaged position in reaching at a cost which might be reasonable for restoration of the property to its former state. However as I have found that the plaintiff is entitled to general damages for trespass, I will award a nominal sum of Kshs. 100,000/= as general damages for trespass. This cost will go towards restoration of the suit land to its former state.”* Similarly, in this case, the 1st Defendant has not adduced evidence as to the status of their suit land before and after the trespass, they are however, entitled to general damages for trespass and the court will award a nominal sum of Kshs 150,000/= as damages. I find that the Plaintiff is being fraudulent knowing very well the land was not available for sale and trying to outsmart the 1st Defendant. I find that the defence of bonafide purchaser is not available to the Plaintiff and the 2nd Defendant. I find that the Plaintiff has failed to prove its case and 2nd Defendant her counter claim on a balance of probabilities and I dismiss them with costs. I find that the 1st Defendant has proved their case on a balance of probabilities and I grant the following orders; 1. The Plaintiff is to vacate the suit land within the next 90 days from the date of this judgement and in default the 1st Defendant is to evict Lakeview Investment Limited, its agents, directors and any person claiming through Lakeview Investment Limited, from LR No. 24561 (IR No. 193256) and from any sub-divisions of LR No. 24561 (IR No. 193256); 2. A mandatory Order of Injunction issues compelling Lakeview Investment Limited, its agents, employees, or director(s) to, within 90 days of the Judgment herein, remove such structures, developments, perimeter walls, buildings, foundations it has erected on the 1st Defendant's property LR No. 24561 (IR No. 193256). 3. An Order of Permanent Injunction restraining Lakeview Investment Limited, its agents. employees, or director(s) from encroaching, trespassing, interfering with beacons, uprooting beacons, erecting fence(s), erecting structures, transferring, selling, selling, leasing, remaining upon, and/or in any other manner, dealing with the 1st Defendant's property LR No. 24561 (IR No. 193256). 4. Kshs. 150,000/= General damages for trespass; 5. The OCPD and DCIO Athi River Police Station to enforce compliance with the Court Decree herein. 6. Costs to the suit to be borne by the Plaintiffs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**