[2025] KEELC 1459 (KLR)

Lwenya & another v Attorney General & 4 others (Environment & Land Petition 7 of 2016 & Environment & Land Case 21 (KSM CM'S ELC) of 2022 (Consolidated)) [2025] KEELC 1459 (KLR) (20 March 2025) (Judgment)

Neutral citation: [2025] KEELC 1459 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Petition 7 of 2016 & Environment & Land Case 21 (KSM CM'S ELC) of 2022 (Consolidated)

E Asati, J

March 20, 2025

IN THE MATTER OF ARTICLE 22 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS UNDER ARTICLES 27, 40, 48 AND 50 AS READ TOGETHER WITH ARTICLES 19, 20, 21, 22, 23, AND 24 OF THE CONSTITUTION OF KENYA AND SECTION 19 OF THE 6 TH SCHEDULE OF THE CONSTITUTION OF KENYA

Between

Joy Mugasia Lwenya

1st Petitioner

Levy Amiani Sangale

2nd Petitioner

and

Attorney General

1st Respondent

Director of Surveys

2nd Respondent

Permanent Secretary Ministry of Lands

3rd Respondent

Jacob Nyakwa Ojwang

4th Respondent

Murtaza Mahareli

5th Respondent

Judgment

Introduction 1. This judgement is in respect of two matters which were consolidated namely; the petition herein and Kisumu CMC MELC No. 2021.

The petition 2. The initial petition dated 5th April 2013 had only 3 Respondents who are the 1st, 2nd and 3rd Respondents herein. However, the same was later amended and the 4th and 5th Respondents added. Vide the amended Petition dated 12th February, 2015, Joy Mugasia Lwenya and Levy Amiani Sangale the Petitioners, claimed that they had been registered as owners of the property known as Kisumu/Kanyakwar “B”/1776 and 1778 but now known as Kisumu/Kanyakwar ‘B’/2386 and 2387 having purchased the same by sale agreement dated 16th April, 2012 at Kshs.4,400,000/-from the 4th Respondent in the petition. That they have since been in open, peaceful and quiet enjoyment of the premises. That in February, 2013, they learnt that the said lands were registered in the name of the 5th Respondent.

3. That the actions of the 2nd and 3rd Respondents of cancelling their titles and issuing other titles in respect of the same land were irregular, ultra vires, unconstitutional and therefore null and void. They therefore sought for the following relief;a.a conservatory order barring the Respondents from in any manner further interfering with the Petitioners’ quiet possession of land parcel No. Kisumu/Kanyakwar “B”/1776 AND 1778 and known as Kisumu/Kanyakwar “B”/2386 and 2387. b.A declaration that the status quo prior to the cancellation of the Petitioners’ title by the 2nd Respondent be maintained.c.a declaration that the Respondents are in breach of the provision of article 40 of the Constitution of Kenya by interfering with the Petitioners’ rightful use of their land.d.a declaration that the 2nd Respondent lacks moral probity, betrayed public trust, has failed to ensure objectivity and impartiality in decision making, has practiced favouritism, discrimination, improper motives and has engaged himself in corrupt practices and does not deserve to exercise the functions of a state officer and should be thus removed and barred from holding a state office in future.e.a declaration that the 2nd Respondent is perpetuating breaches of law, the Constitution of Kenya and carrying out and legalizing impunity contrary to to the Constitution of Kenya and exhibiting arrogance and ignorance in performance of their public duties contrary to law.f.an order be issued directing the Director of Surveyor to issue the Petitioners with title documents for Kisumu/Kanyakwar “B”/1776 and 1778 but now known as Kisumu/Kanyakwar “B”/2386 and 2387 and a declaration that Kisumu/Kanyakwar “B”/1776 and 1778 but now known as Kisumu/Kanyakwar “B”/2386 and 2387 belong to the Petitioners.g.damages for infringement of rights of the Petitioners to be paid by the Respondents jointly and severally.

4. The 1st, 2nd and 3rd Respondents’ response to the Petition was contained in the Respondents’ Replying Affidavit sworn on 2nd July 2013 by P. R. Wanyama, Provincial Land Surveyor, Nyanza Province.

The 4th Respondent did not respond to the amended petition. 5. The 5th Respondent’s response to the amended petition was contained in the 5th Respondent’s Replying Affidavit sworn on 12th July, 2017.

The suit 6. In the pendency of the petition, the 5th Respondent filed MEL Case No. 21 of 2022 before the Chief Magistrate’s court, Kisumu. Vide the plaint dated 22nd February, 2022, the 5th Respondent in the petition, sued the petitioners, the 4th Respondent in the petition, the Kisumu County Land Registrar and Hon. Attorney General. He sought for orders of;a.A declaration that the suit land parcel number Kisumu/Kanyakwar “B”/2387 a sub-division of Kisumu/Kanyakwar “B”/386 belongs to the Plaintiff.b.A declaration that land parcel numbers Kisumu/Kanyakwar “B”/1776, Kisumu/Kanyakwar “B”/1777 and Kisumu/Kanyakwar “B”/1778 were illegally and unlawfully sub-divided from Kisumu/Kanyakwar “B”/386 and therefore null and void.c.An eviction order against the 1st and 2nd Defendants their agents, servants and/or employees and giving up vacant possession on the portion they are illegally occupying on land parcel number Kisumu/Kanyakwar “B”/1776 and 1778 (now known as Kisumu/Kanyakwar “B”/2387 and 2386. d.An order of permanent injunction restraining the 1st, 2nd and 3rd Defendants either by themselves, their agents, representatives, servants and/or any other person authorized by them from entering, occupying or interfering with the land parcel numbers Kisumu/Kanyakwar “B”/2387 and 2386 in any way.e.Damages for trespass.f.Costs of the suitg.Any other relief the court deems fit to award.

7. The 4th and 5th Defendants filed a defence dated 8th March 2022 denying the plaintiff’s (5th Respondent’s) claim.

8. Pursuant to court orders made on 23rd January 2023 and 21st February, 2023 the suit was transferred to this court and consolidated with the petition for hearing and disposal.

9. The matter proceeded by way of viva voce evidence.

The Evidence 10. On behalf of the Petitioners, one witness Mr. Fred Kirunga Adaka testified as PW1. He stated that the petitioners donated Power of Attorney to him to act on their behalf in the matter. His testimony was that at all material times the Petitioners were the registered owners of all those parcels of land known as Kisumu/Kanyakwar “B”/1776 and 1778 having bought the same from the previous owner Jacob Nyakwa Ojwang in the year 2012 at a consideration of Kshs 4,400,000/- which was paid with no balance owing.

11. That the petitioners have been in open, peaceful and quiet enjoyment of the premises for their own behalf. That it was only in the month of February 2013 when the Petitioners learned that their titles to the land had been cancelled by the Director of Survey and new titles issued for the same parcels being Kisumu/Kanyakwar “B”/2386 and 2387 respectively. That the petitioners were not informed of the cancellation of their titles and only came to learn of the same when they got the map for Kanyakwar area from the Ministry of Lands, Kisumu.

12. That the actions of the 2nd and 3rd Respondents of cancelling the petitioner’s titles and issuing other titles in respect of the land was thus irregular, ultra vires, unconstitutional and therefore null and void. That the said actions were contrary to the provisions of articles 40, 47, 48 and 50 of the Constitution.

13. On cross-examination, he stated that he did not do a search before purchase of the land. That plot Numbers Kisumu/Kanyakwar “B”/1776 and 1778 were a product of subdivision of parcel No. Kisumu/Kanyakwar “B”/386. He produced documents as exhibits namely; title deed in respect of Kisumu/Kanyakwar ‘B”/1776 dated 18th May 2012 in the names of the petitioners, title deed for Kisumu/Kanyakwar “B”/1778 dated 18th May 2012 in the names of the petitioners, Land sale agreement dated 16th April 2012 between Jacob Nyakwa Ojwang and Ebby Lwenya on behalf of the petitioners and in respect of Land parcel numbers Kisumu/Kanyakwar “B”/1776 and 1778, a General Power of Attorney donated by Levy Amiani Sangale to Fred Kirunga Adaka and a General Power of Attorney donated by Joy Mugasia Lwenya to Fred Kirunga Adaka.

14. On behalf of the Respondents, two witnesses testified. DW1 was Murtaza Tahareli who was the Plaintiff in the suit and the 5th Respondent in the Petition. His testimony was that the original parcel No. Kisumu/Kanyakwar “B”/386 measuring approximately 0. 47Ha was registered in the name of Jacob Nyakwa Ojwang, the 4th Respondent.

15. That he bought the land parcel No. Kanyakwar/386 from the 4th Respondent and paid the full price of Kshs.2,500,000/- and the land was transferred to him and he was issued with a title deed on 20th September, 2011. That he took possession of the land and begun to construct a stone wall but the 4th Defendant stopped him claiming that he did not sell the entire parcel and begun demanding that he relinquish a portion measuring 0. 07Ha to the 4th Respondent. That he agreed to add the 4th Respondent a sum of Kshs.100,000 for the portion measuring 0. 07Ha and that thereafter he enjoyed quiet and peaceful occupation and use of the whole of land parcel No. Kisumu/Kanyakwar “B”/386 measuring 0. 047Ha. That he was paying the requisite land rates for the land.

16. That he was surprised in July 2012 to discover that the 4th Respondent, the Kisumu District Land Registrar and the Kisumu Land Surveyor had colluded to fraudulently sub-divide land parcel No. Kisumu/Kanyakwar “B”/386 to produce three parcels numbers Kisumu/Kanyakwar “B”/1776, 1777 and 1778. That parcel number 1777 was transferred to him and numbers 1776 and 1778 to the Petitioners without his (DW1’s) knowledge.

17. That upon learning of the sub-division and transfers, he visited the Land Registry and lodged a formal complaint pursuant to which the sub-division and subsequent transfer were reverted to parcel No. Kisumu/Kanyakwar “B”/386 in his name.

18. That thereafter, he caused the subdivision of land parcel No.386 to produce Kisumu/Kanyakwar “B”/2386 and 2387 and transferred land parcel number Kisumu/Kanyakwar “B”/2386 to Divyesh Kotecha.

19. In the witness statement dated 22nd July, 2022, DW1 had stated that the 1st and 2nd defendants in the plaint, who are the Petitioners in the petition had put up a temporary structure on the suit land that falls within Kisumu/Kanyakwar “B”/2387 which action is illegal as it was done without his knowledge or consent.

20. He produced the documents as exhibits namely; search for Kisumu/Kanyakwar “B’/386, acknowledgements dated 17/10/2011, 7/10/2011, 6/10/2011, 27/9/2011 and 16/9/2011, Transfer for L. R. Kisumu/Kanyakwar “B”/386, Sale agreement dated 27/9/2011, demand notice dated 16/1/2012, payment request, Letter to Provincial Surveyor, mutation form for Kisumu/Kanyakwar “B”/386, searches for Kisumu/Kanyakwar “B”/2386 and 2387 sale agreement for Kisumu/Kanyakwar “B”/2386, copy of banker’s cheque No. 428453 and KRA payment slip dated 19th September 2011.

21. He stated that the land was in his name by the time the Petitioners obtained their titles.

22. On cross-examination he stated that he could not utilize land parcel number 2387 because somebody built a ‘mabati’ structure on it. That the land was sold to him at Kshs 2. 9 million although he declared the value to be 1 million so as to lower the stamp duty. That he found it strange that the petitioners got titles to the land.

23. DW2 was Patrick Opiyo a land surveyor. He testified that he did ground survey in parcels of land no. Kanyakwar “B”/386 that had two numbers namely; 2386 and 2387. He confirmed that there was a ‘mabati’ structure on land parcel number Kisumu/Kanyakwar “B”/2387. He produced a report dated 28/10/2023 as exhibit.

24. On cross-examination he stated that he was not aware of the other titles.

25. The 1st , 2nd, 3rd and 4th Defendants/Respondents adduced no evidence.

Submissions 26. At the close of the evidence, parties filed submissions. Written submissions dated 19th November, 2024 were filed on behalf of the Petitioner by the firm of Otieno, Yogo, Ojuro & Company Advocates. Similarly, written submissions dated 19th November, 2024 were filed by the firm of P.D. Onyango Advocates for the 5th Respondent.

Issues for Determination 27. From the pleadings filed in the petition and the suit, the evidence adduced and the submissions made, the issues that emerge for determination are;a.Whose was land parcel number Kisumu/Kanyakwar “B”/386 before subdivision to create parcel No. 1776, 1777 and 1778. b.Whether or not cancellation of the Petitioners’ titles in respect of parcel numbers 1776 and 1778 was in breach of the petitioners’ constitutional rights and particularly as contained in the provisions of articles 40, 47, 48 and 50 of the Constitution 2010. c.Whether or not the Petitioners are entitled to the prayers sought in the petition.d.Whether or not the 5th Defendant is entitled to the prayers as sought in plaint.e.Who pays the costs?

Analysis and Determination 28. The first issue for determination is whose was land parcel number Kisumu/Kanyakwar “B”/386 before subdivision to create parcel No. 1776, 1777 and 1778.

29. There was no dispute that the original owner of parcel number 386 was the 4th Respondent. The petitioners’ case is that vide the agreement dated 16/4/2012 they bought the land parcel numbers 1776 and 1778 from the 4th Respondent. Apparently, they came into the scene when subdivision had occurred and the new numbers were in existence. Their title deeds show that the titles were products of subdivision of parcel number 386. PW1 did not explain how the subdivision occurred. He stated on cross examination that he was not a witness in the agreement, that he did not have a copy of the original title and that he did not have a document to show in whose name the land was registered in April 2012 (the time of purchase by the Petitioners).

30. PW5 pleaded in the plaint that he was at all material times the registered owner of land parcel number 386 which he purchased from the 3rd Defendant in the plaint who is the 4th Respondent in the petition. That after purchase the land was transferred to him and he was issued with title deed on 20th September 2011 and he took possession. He produced a title deed dated 20/9/2011 in his name. No other document was produced to show that the said title deed was ever cancelled or whether the land was transferred to some other person before or by the date of the petitioners’ land sale agreement. The transfer form and the Consent of the Land Control Board to transfer shows that it was the entire of Land parcel number 386 that was transferred to the 5th Respondent.

31. I find that the land parcel number 386 was the property of the 5th Respondent as at the time of sale to the petitioners of parcel numbers 1776 and 1778 which were purported to be subdivisions of No. 386.

32. The next issue is whether or not cancellation of the Petitioners’ title numbers 1776 and 1777 was in breach and/or violation of the Constitution and particularly articles 40, 47, 48 and 50 thereof.

33. The Petitioners pleaded in amended petition and in the Further Affidavit of Fred Kirunga Adaka sworn on 27th September, 2013 that the Petitioners were at all material times the registered owners of all those parcels of land known as Kisumu/Kanyakwar “B”/1776 and 1778 having bought the same from the previous registered ownerone Jacob Nyakwa Ojwang at Kshs.4,400,000.

34. That in February, 2013 they realized that the titles had been cancelled and new titles numbers 2386 and 2387 issued. That this cancellation was done without the Petitioners’ knowledge and involvement and that this was contrary to the provision of article 40, 47, 48 and 50 of the Constitution of Kenya.

35. In support of their claim, the petitioners produced title deeds in respect of parcel No.1776 and 1778 both dated 18th May, 2012 both in the joint names of the Petitioners.

36. The Petitioners also produced a land sale agreement dated 16th April, 2012 indicating that they bought the land on the said date from Jacob Nyakwa Ojwang. That the parcel of land the subject of the sale were Number Kanyakwar “B”/1776 and Kanyakwar “B”/1778.

37. The title deeds produced show that the said parcels were products of sub-division of parcel No.386.

38. The documents produced by the 5th Defendant show that as at 10th August, 2011, land parcel No.Kanyakwar “B”/386 was registered in the name of Jacob Nyakwa Ojwang of P.O. Box 959, KISUMU.

39. A certificate of official search produced by the 5th Defendant dated 10th August, 2011 confirms this. Transfer form dated 5th September, 2011 shows that the said Jacob Nyakwa Ojwang transferred the land parcel number 386 to the 5th Respondent and that a title deed was issued in favour of the 5th Respondent in respect of parcel No.386 on 20th September, 2011.

40. As at 16th April, 2012 when the Petitioners claim to have bought the land from Jacob Nyakwa Ojwang, the land belonged to and was registered in the name of the 5th Defendant. Joseph Nyakwa Ojwang did not have the land to sell to the Petitioners.

41. The sale was therefore not only unlawful but also a nullity. Jacob Nyakwa Ojwang although sued as the 4th Respondent, did not respond to or participate in the proceedings to be able to explain what happened.

42. The sale agreement between Jacob Nyakwa Ojwang and the Petitioners could not pass any property rights to the Petitioners capable of protection by the law as the land already belonged to someone else, the 5th Defendant.

43. Although article 40 of the Constitution provides for protection of the rights to property sub-article (6) provides;“the rights under this article do not extend to any property that has been found to have been unlawfully acquired”.

44. Article 47 provides for fair administrative actions, articles 48 access to justice and article 50 fair hearing.

45. The property held in title numbers 1776 and 1778 was unlawfully acquired. The 1st, 2nd and 3rd Respondents in the Replying Affidavit titled Respondents’ Replying Affidavit and sworn on 2nd July, 2013 explained how the titles numbers 1776, 1777 and 1778 were created and later cancelled.

46. In paragraph 7 the deponent stated that upon receipt of a complaint of the 5th Respondent who had original title deed for Kanyakwar “B”/386, it was discovered that sometime in April 2012 one Jacob Nyakwa Ojwang purported to be the registered proprietor of land parcel number Kisumu/Kanyakwar “B”/ 386 sanctioned the sub-division of the land and presented mutation forms to the District Surveyor who issued new numbers Kisumu/Kanyakwar “B”/1776, 1777 and 1778 and that the relevant registry map sheet No.2 was accordingly amended. That since the sub-division had not been sanctioned by the registered owner, the number 1776, 1777 and 1778 were expunged and the reverted to the old parcel number 386.

47. I find that the titles having been obtained unlawfully did not enjoy the protection provided for in the Constitution.

48. The cancellation thereof was therefore not in breach of any Constitutional provision.

49. The next issue is whether or not the Petitioners are entitled to the relief sought in the petition.

50. The basis for the petitioners’ claim is the land sale agreement produced by PW1 as exhibit. The land sale agreement was signed by one Ebby Lwenya on behalf of the Joy Lwenya. There is no evidence that Levy Amiani Sangale, the 2nd Petitioner, signed the agreement at all. There is no evidence of full payment of the purchase price. Ebby Lwenya was not called to testify. PW1 who testified on behalf of the Petitioners stated that he did not witness the agreement, he did not conduct search before the sale was done and that he had not seen the original title deed for the person who sold the land to the petitioners. There is totally no evidence of any due diligence on the part of the petitioners as purchasers before engaging in the sale. There is no evidence as to how the parcels of land were created and transferred to the petitioners. There is no evidence of Consent of Land Control Board for transfer, there is no evidence in the form of transfer forms duly signed and registered, no evidence of payment of stamp duty and other registration charges for the transfers. There is no evidence of the process vide which the Petitioners obtained the titles.

51. There was no claim in the petition for refund of the purchase price from the 4th Respondent.

52. Further the court has already found that the purported subdivision of land parcel number 386 belonging to the 5th Respondent to produce inter alia land parcel numbers 1776 and 1778 was unlawful and that the said parcels did not enjoy protection of the law.

53. For the foregoing reasons the court finds no basis to hold that the Petitioners are entitled to the relief sought in the petition.

54. As to whether the 5th Respondent is entitled to the prayers in the plaint (which was treated as 5th Respondent’s defence and counterclaim), the 5th Respondent has been able to explain the root of his title. He has also demonstrated that the Petitioners’ trespassed onto the suit land and attempted to take away the land from him by having parcel numbers 1776 and 1778 transferred in their favour.

55. The 5th Respondent testified that he is prevented from utilizing land parcel number 2387 because the Petitioners entered there onto and constructed a semi-permanent structure. This was confirmed by the surveyor’s report. In Duncan Nderitu Ndegwa vs KPLC Ltd & another [2018]eKLR it was held that once trespass to land is established it is actionable per se and no proof of damages is necessary for the court to award general damages. Halsbury’s Laws of England 4th Edition Vol. 45 at paragraph 26 page1503 states that the owner of land is entitled to nominal damages where there is no actual damage occasioned to the owner by the trespass. In the circumstances of this case I find that a sum of Kshs.500,000 will be adequate as damages for the trespass to the land.

56. The upshot is that the Petitioners have failed to prove the petition. The 5th Respondent on the other hand has proved his claim as contained in the plaint on a balance of probabilities, hence;a.The petition is hereby dismissed with no order as to costs.b.Judgement is entered in favour of the 5th Respondent as prayed in the plaint as follows: -i.A declaration that the suit land parcel number Kisumu/Kanyakwar “B”/ 2387 a sub-division of Kisumu/Kanyakwar “B”/386 belongs to the Plaintiff.ii.A declaration that land parcel numbers Kisumu/Kanyakwar “B”/1776 AND 1777 and 1778 were illegally and unlawfully sub-divided from Kisumu/Kanyakwar “B”/386 and therefore null and void.iii.An eviction order against the 1st and 2nd Defendants their agents, servants and/or employees and giving up vacant possession on the portion they are illegally occupying on land parcel number Kisumu/Kanyakwar “B”/1776 and 1778 (now known as Kisumu/Kanyakwar “B”/2387 and 2386. iv.An order of permanent injunction restraining the 1st, 2nd and 3rd Defendants either by themselves, agents, representatives, servant and/or any other person authorized by them from entering, occupying or interfering with the land parcel number Kisumu/Kanyakwar “B”/2387 and 2386 in any way.v.A sum of Kshs.500,000/- (Kenya shillings five hundred thousand only) damages for trespass.vi.Costs of the suit.Orders accordingly.

JUDGEMENT DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 20TH OF MARCH, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen: Court Assistant.Ojuro for the Petitioners.Kobimbo for the 1st, 2nd and 3rd Respondents.No appearance for the 4th Respondent.D Onyango for the 5th Respondent.