https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5166

***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC NO. E014 OF 2023*** ***MARK ADEMBA OKUMU …………………………………….. PLAINTIFF*** ***VERSUS*** ***KAEKO NCHOE ………………………………………………. DEFENDANT*** ***JUDGMENT*** 1. The Plaintiff instituted this suit against the Defendant vide an Amended Plaint dated ***25th February 2025,*** in respect of Land Reference Number ***CIS MARA/MAJI MOTO/721,*** measuring approximately ***19.44 hectares*** (hereinafter referred to as “the **Suit Property**”). 2. The Plaintiff averred that he is the registered proprietor of the suit property, having purchased the same from ***Parmalai Ole Botoyo,*** pursuant to a sale agreement entered into in ***2019;*** and that ***Parmalai Ole Botoyo,*** had initially been allocated the suit property from the larger ***Maji Moto Group Ranch***. He further averred that following the purchase, he was issued with a title deed in the year ***2019.*** 3. The Plaintiff further averred that an official search conducted on ***19th April 2023,*** confirmed that he was the ***sole and indefeasible*** ***proprietor***, of the suit property; and that he ***enjoyed quiet, peaceful and uninterrupted ownership and possession*** of the suit property until the Defendant unlawfully entered upon the land, fenced it off and blocked his access thereto. 4. The Plaintiff particularized the Defendant’s acts of ***trespass*** as ***unlawfully entering*** upon the suit property despite knowledge that the title thereto was registered in the Plaintiff’s name; invading the property with the intention of depriving the Plaintiff of his proprietary rights; erecting a fence on the suit property; and blocking the Plaintiff’s access thereto. 5. The Plaintiff further averred that he reported the matter to ***Ngoswani Police Station under OB No. 18/25/2023,*** to prevent the Defendant from further trespassing upon the suit property; and that the Police consequently issued an order for the Defendant’s arrest. 6. The Plaintiff maintained that unless restrained by this Court, the Defendant would continue interfering with his ***quiet possession*** and ***enjoyment*** of the suit property, thereby occasioning him irreparable loss and damage. 7. Consequently, the Plaintiff prayed for Judgment against the Defendant in the following terms: 8. ***A permanent injunction restraining the Defendant, his servants and/or agents from interfering with, trespassing upon, alienating, fencing or otherwise dealing with Land Reference Number CIS MARA/MAJI MOTO/721.*** 9. ***A declaration that the Plaintiff is the absolute and indefeasible owner of Land Reference Number CIS MARA/MAJI MOTO/721.*** 10. ***An order for compensation by way of mesne profits for trespass.*** 11. ***An order directing the Defendant to forthwith and unconditionally demolish the wall erected on Land Reference Number CIS MARA/MAJI MOTO/721.*** 12. ***Costs of the suit together with interest.*** 13. ***Any other or further relief that this Honourable Court may deem fit and just to grant.*** 14. The suit is vehemently opposed by the Defendant, and in response to the ***Amended Plaint***, the Defendant filed an ***Amended Statement of Defence and Counterclaim*** dated ***24th July 2025,*** and denied that the Plaintiff ***lawfully acquired*** the suit property. He averred that the suit land, ***L.R. No. CIS MARA/MAJI MOTO/721,*** rightfully belongs to him, having been issued with the original title deed on ***1st September 2019***, as reflected in the Green Card. 15. Further, he denied that ***Parmalai Ole Botoyo,*** was ever the ***allottee or registered proprietor*** of the suit property, and contended that the said ***Parmalai*** lacked the ***legal capacity*** to transfer any interest in the land to the Plaintiff. 16. It was his further averments that the Plaintiff has never been a member of ***Maji Moto Group Ranch,*** and was therefore incapable of acquiring any beneficial interest in the suit property through the Group Ranch. Further that ***the suit property*** was ***duly allocated to the Defendant*** and a title deed procedurally issued in his favour, rendering the suit property unavailable for re – allocation to any other person. 17. The Defendant also maintained that he has never transacted with the Plaintiff in respect of the suit property, and that any transaction purporting to transfer the land to the Plaintiff was undertaken without his knowledge or consent, rendering the Plaintiff’s title ***illegally and unprocedurally*** ***acquired.*** 18. Further, that, being the original registered proprietor of the suit property, he never applied for nor obtained the consent of the ***Land Control Board*** to transfer the suit property to the Plaintiff, with the result that the alleged transaction is ***null and void*** for want of the requisite statutory consent. 19. The Defendant further pleaded that ***Article 40(6)*** of the ***Constitution*** and ***Section 26*** of the ***Land Registration Act*** do not protect ***illegally acquired property*** and maintained that ***had*** the Plaintiff ***exercised due diligence*** before purchasing the suit property, he would have discovered from the ***Green Card*** that the Defendant was the lawful proprietor. 20. The Defendant further denied the allegations of trespass and maintained that, being the lawful proprietor in possession of the suit property, he could not be guilty of ***trespassing*** upon his own land. That it was the Plaintiff who had misused the police to harass and intimidate him by instituting criminal complaints and the present suit. 21. By way of ***Counterclaim,*** the Defendant pleaded that he is the lawful proprietor of ***L.R. No. CIS MARA/MAJI MOTO/721***, having succeeded his late father, ***RETETI OLE NCHOE***, a bona fide member of ***Maji Moto Group Ranch,*** appearing as member ***number 202,*** in the Members’ Register, to whom the suit property had originally been allocated. 22. The Defendant further averred that following the demise of his father, the suit property was lawfully transmitted and registered in his name, whereupon he was issued with a title deed on ***1st September 2019****.* It was his contention that the title was subsequently ***intercepted and fraudulently dealt*** with by ***former Group Ranch officials*** without his knowledge, necessitating intervention by the Lands Registry, which ultimately re-issued him with a title deed dated ***28th August 2023****.* 23. Further, that he ***took possession*** of the suit property and commenced developments thereon but the ***Plaintiff unlawfully interfered*** with his ***quiet possession and enjoyment*** of the land by laying a false claim thereto. 24. He pleaded that the ***Plaintiff fraudulently procured registration*** of the suit property in his favour ***through misrepresentation***, without the Defendant’s knowledge or consent, and without compliance with the provisions of the ***Land Control Act.*** 25. The Defendant ***particularized fraud and illegality*** against the Plaintiff to include; *procuring registration through false documents and misrepresentation; causing the suit property to be transferred into his name without the Defendant’s consent; obtaining registration without a valid Land Control Board consent; processing and obtaining a title deed irregularly; unlawfully asserting ownership over the suit property; and misleading the Lands Registrar into believing that he had lawfully acquired proprietary rights over the suit property*. 26. The Defendant further averred that, as a consequence of the Plaintiff’s alleged fraudulent conduct, he had been deprived of the quiet enjoyment of the suit property and continued to face the risk of dispossession. 27. Consequently, the Defendant prayed for judgment in his favour as prayed in the ***Counter claim*** against the Plaintiff for the following orders: - 28. ***A declaration that Land Parcel No. CIS MARA/MAJI MOTO/721 belongs to the Defendant.*** 29. ***An order cancelling the Plaintiff's title to Land Parcel No. CIS MARA/MAJI MOTO/721.*** 30. ***An order directing the District Land Registrar, Narok North/East/West/South, to rectify the register by restoring the Defendant as the registered proprietor of the suit property.*** 31. ***A declaration that the transfer of Land Parcel No. CIS MARA/MAJI MOTO/721 to the Plaintiff was fraudulent, illegal, null and void.*** 32. ***A permanent injunction restraining the Plaintiff from interfering with the suit property.*** 33. ***Any other relief that this Honourable Court may deem fit and just to grant.*** 34. ***Costs of the suit.*** 35. After the close of pleadings, and case management, the case proceeded for hearing vis viva voce evidence, wherein the plaintiff gave evidence for himself and called one more witness to support his case the Defendant also gave evidence for himself and called one witness. **PLAINTIFF’S CASE** 1. **PW1;Mark Ademba Okumu,** adopted his witness statement dated ***15th June 2023,*** as his evidence in chief and produced his amended list of documents as ***PExhibits 1-9.*** He also testified that he is the registered proprietor of *Land Reference Number* ***CIS MARA/MAJI MOTO/721****,* measuring approximately ***19.44 hectares,*** having lawfully acquired the suit property for valuable consideration; and that he was issued with a certificate of title by the Land Registrar on ***26th March 2019****,* which, is prima facie evidence of his ownership of the suit property. 2. Further, that an official search conducted on ***19th April 2023,*** confirmed that the suit property remained registered in his name, and which showed that there were no encumbrances registered against the title. 3. It was his further evidence that since the issuance of the title deed, he had ***enjoyed quiet, peaceful and uninterrupted possession*** of the suit property until the Defendant unlawfully entered onto the land, trespassed thereon and erected a fence blocking access to the suit property. 4. PW1 also testified that the Defendant’s actions amounted to ***unlawful trespass*** and were intended to deprive him of ***ownership and possession of the suit property,*** thereby causing him ***emotional distress and apprehension*** that he would lose his property. 5. Further, that he reported the Defendant’s alleged acts of trespass to ***Ngoswani Police Station*** under ***OB No. 18/25/2023****,* following which the police issued an order for the Defendant’s arrest in respect of the alleged unlawful occupation of the suit property. Consequently, PW1 urged the Court to allow his claim and grant the reliefs sought in the Amended Plaint. 6. On cross-examination, ***PW1*** testified that the Defendant had built on his land; that he had not applied for a green card; that ***Parmalai*** was allocated the suit property by ***Maji Moto Group*** ***Ranch;*** and that he was not aware of any title issued to the Defendant. 7. **PW2:Parmalai Ole Botoyo,** adopted his witness statement dated ***25th February 2025,*** as his evidence in chief and testified that he was a member of ***Maji Moto Group Ranch*,** and that before the subdivision of the ***Group Ranch***, members occupied the land communally. That the subdivision process commenced between the years ***2011 and 2012***, following which individual members were allocated specific parcels of land. 8. That during the allocation exercise he was allocated, among other parcels, *Land Parcel No.* ***CIS MARA/MAJI MOTO/721****,* measuring approximately ***50 acres.*** That although the documentation relating to the allocation was processed later, members were initially shown the location and boundaries of their respective parcels before title documents were prepared. 9. Further, that after the allocation exercise, the officials of the ***Group Ranch*** commenced processing of ***ownership documents*** and ***title deeds*** for members. That while processing his title, it was discovered that an ***error*** had been made in the allocation records, whereby ***Land parcel number 721,*** had erroneously been reflected as having been allocated to ***Reteti Ole Nchoe***, whereas, according to him, ***Reteti Ole Nchoe*** had been allocated ***land parcel No. 974,*** and had already obtained a title thereto in the year ***2015.*** 10. Further, that in the ***year 2017***, he swore an affidavit to ***facilitate the rectification*** of the error at the Lands Registry and was thereafter issued with a title deed for ***Land Parcel No. CIS MARA/MAJI MOTO/721*** in the year ***2018.*** Further, ***PW2*** testified that after obtaining title to the suit property, he entered into a sale agreement with the Plaintiff in the ***year 2019,*** whereupon the Plaintiff lawfully acquired the suit property. 11. It was his further testimony that prior to the sale, the Defendant had requested permission to graze livestock on the suit property in the ***year 2018***, which permission he granted. That the Defendant later began ***claiming ownership*** of the suit property despite knowing that the land had been allocated to him. 12. PW2 also testified that in or about the year ***2023,*** when the Plaintiff commenced fencing the suit property, the Defendant and several other persons forcefully interrupted the exercise, erected their own fence and structures on the land and asserted ownership thereof. 13. Ultimately, he maintained that the Defendant’s claim over Land Parcel No. ***CIS MARA/MAJI MOTO/721,*** was without merit and urged the Court to uphold the Plaintiff’s claim. 14. On cross-examination, ***PW2*** maintained that he is a member of ***Maji moto Group Ranch***; and he is in the register, but has no number; that the Defendant got his title deed in ***2015;*** and that he got his title deed in 2018. **DEFENDANT’S CASE** 1. ***DW1 :Kaeko Ole Nchoe***, adopted his witness statement dated ***30th November 2024*** and also testified that he is a member of ***Majimoto Group Ranch***, by virtue of being the son of Retiti Ole Nchoe the initial member that the suit property, Land Parcel No. ***CIS MARA/MAJI MOTO/721****,* originally belonged to his late father, ***Reteti Ole Nchoe***, who was a bona fide member of the Group Ranch. 2. Further, that the suit property was allocated to his late father as reflected in the ***Majimoto Group Ranch Area List,*** and that, following his father’s demise, the parcel of land was ***lawfully transmitted*** and ***allocated to him*** as the rightful beneficiary. That he was registered as the proprietor of the suit property and issued with a title deed on ***1st September 2019.*** 3. ***DW1*** further testified that despite being the registered proprietor of the suit property, the then officials ***of Majimoto Group Ranch,*** in collusion with the Plaintiff***, unlawfully intercepted*** his title deed and ***fraudulently transacted*** on the suit property without his knowledge or consent. 4. ***DW2: Mariki Twala, the Chairman of Maji MoTO Gropup Ranch for 2026*** *adopted his witness statement dated 28.11.2024 and further tested that* 5. It was his further testimony that at the time the Plaintiff purportedly acquired the suit property, there were subsisting conservatory orders issued in ***Narok ELC Petition No. 268 of 2017,*** restraining any dealings with Land parcels within ***Majimoto Group Ranch,*** yet the then Group Ranch officials nevertheless facilitated the impugned transaction. 6. ***DW1*** testified that following the determination of ***Narok ELC Petition No. 268 of 2017*** on ***8th July 2022***, the orders issued therein were implemented, whereupon he was lawfully re-issued with a title deed for Land Parcel No. ***CIS MARA/MAJI MOTO/721 on 28th August 2023****.* 7. He also maintained that the Plaintiff’s registration was ***fraudulent and unlawful*** and urged the Court to dismiss the Plaintiff’s suit and allow the ***Counterclaim.*** 8. After the viva vice evidence, parties filed and exchanged their written submissions. The Plaintiff filed his written submissions dated ***25th March 2026, through Rachier & Ammollo LLP Advocates*** and raised the following issues for determination: 9. ***Whether the Defendant’s defence and testimony against the Plaintiff’s claim to the suit property are sustainable in fact and in law; and*** 10. ***Whether the Plaintiff’s claim to the suit property is proper and justified.*** 11. On the first issue, the Plaintiff submitted that the Defendant’s case was riddled with ***material inconsistencies***, ***contradictions and unsupported allegations,*** which rendered both his defence and oral testimony wholly unreliable. Further, that the Defendant’s pleadings, witness statements and oral testimony were mutually inconsistent, thereby depriving his defence of any probative value. 12. The Plaintiff further submitted that the Defendant’s claim to ownership of the suit property was entirely anchored on an alleged inheritance from his deceased father, whom he identified as ***Reteti Ole Nchoe****.* However, when subjected to cross-examination, the Defendant failed to provide even the most basic particulars regarding the alleged death of his father, including when he died, asserting instead that he was too young to remember. 13. The Plaintiff further submitted that the Defendant’s evidence completely undermined his own case. That although the Defendant initially maintained that his father was deceased, and that he inherited the suit property from him, he later admitted during cross-examination that he had heard that the said ***Reteti Ole Nchoe,*** was in fact alive and living somewhere ***in Kajiado***. The Plaintiff argued that the Defendant subsequently changed his evidence yet again by stating that he had never seen his father throughout his lifetime, thereby rendering his entire narrative incapable of belief. 14. Further, that the documentary evidence produced by the Defendant equally contradicted his oral testimony. The plaintiff argued that the ***Green Card*** relied upon by the Defendant reflected that the original title for the larger ***Majimoto Group Ranch*** was issued in ***2012,*** thereby demonstrating that if ***Reteti Ole Nchoe*** appeared in the members’ register at that time, the Defendant’s assertion that his father had died many years earlier when he was too young to remember could not possibly be true. 15. Further, that the Defendant attempted to amend his case through ***oral testimony*** by attributing inconsistencies in his witness statement to typographical errors allegedly committed by his advocate. He argued that the Defendant could not disown his own pleadings and witness statements after confirming that he had read and signed them before filing. That the purported explanation only emerged after the Defendant was confronted with contradictions during cross-examination, and should therefore be rejected by the Court. 16. The Plaintiff also challenged the authenticity of the ***Green Card*** and title deed produced by the Defendant. Further, that the ***Green Card*** contained ***unexplained entries***, ***lacked certification*** and was ***only produced in photocopy form,*** despite the Defendant having been afforded an opportunity to produce the original document. That the entries appearing on the Green Card materially conflicted with those appearing on the Defendant’s title deed, particularly regarding the numbering of proprietorship entries, and the dates of registration, thereby casting serious doubt on the authenticity of both documents. 17. It was also submitted that the Defendant failed to produce the ***original title deed*** before the Court, and that the copy tendered in evidence ***lacked the Registrar’s signature***, omitted one of the pages ordinarily contained in a title deed, and bore other irregularities which rendered it incapable of authenticating the Defendant’s alleged ownership. 18. Therefore, the plaintiff argued that although the Defendant claimed to have lodged complaints with the ***Land Registrar*** regarding the alleged fraudulent issuance of the Plaintiff’s title, no documentary evidence was produced to demonstrate that such complaints had ever been made. Further, that ***no complaint letter, investigation file, Gazette Notice or notice issued pursuant to the provisions of the Land Registration Act****, were* produced to support the Defendant’s assertion that the Plaintiff’s title had ever been lawfully cancelled. 19. That had the Plaintiff’s title genuinely been cancelled following investigations by the Land Registrar, the Defendant would have produced the relevant Gazette Notice and corresponding entries from the Land Register demonstrating compliance with the statutory procedure for rectification of the register. 20. The Plaintiff further submitted that the Defendant failed to call the ***Land Registrar*** or ***any officer from the Lands Registry*** to support his allegations regarding the cancellation of his title ,and the subsequent issuance of a title in his favour. Therefore, that this omission substantially weakened the Defendant’s case. 21. Turning to the second issue, the Plaintiff submitted that he lawfully acquired the suit property through a valid sale agreement entered into with ***Parmalai Ole Botoyo****,* who subsequently appeared before the Court and confirmed having sold the suit land to him. That the Defendant was neither a party to the transaction nor possessed any lawful basis upon which to impeach the sale. 22. The Plaintiff further submitted that following completion of the sale transaction, he was duly registered as proprietor of the suit property, and was issued with a title deed, which title had never been lawfully impeached. He relied on ***Section 26*** of the ***Land Registration Act,*** and submitted that a certificate of title issued by the Registrar constitutes a ***prima facie evidence*** that the registered proprietor is ***the absolute and indefeasible owner*** of the land, and may only be challenged in the limited circumstances expressly provided under the statute. 23. Further, that despite alleging fraud, the Defendant neither pleaded nor proved any particulars capable of impeaching the Plaintiff’s title. That no evidence was tendered demonstrating that the Plaintiff participated in any ***fraud, misrepresentation, illegality or corrupt scheme in the acquisition*** of the suit property. 24. The Plaintiff also submitted that ***the Defendant’s Counterclaim*** was merely an afterthought intended to defeat the Plaintiff’s legitimate claim and that no credible evidence had been produced establishing the Defendant’s entitlement to the suit property. 25. On the burden of proof, the Plaintiff relied on **Section 107** of the ***Evidence Act***, and submitted that the Defendant bore the burden of proving the allegations of ***fraud levelled*** against the ***Plaintiff.*** That since fraud must not only be pleaded but strictly proved, the Defendant’s failure to adduce cogent evidence was fatal to his defence and ***Counter-claim.*** 26. In conclusion, the Plaintiff submitted that the evidence on record overwhelmingly demonstrated that he lawfully acquired the suit property whereas the Defendant’s case was characterized by ***contradictions, unsupported allegations and unreliable documentary evidence.*** Therefore, he urged the Court to find that he had proved his claim on a balance of probabilities, and grant him the reliefs sought in the Amended Plaint. 27. The Defendant on his part filed his written submissions dated ***20th April 2026*** through ***Kamwaro & Co***. ***Advocates*** and identified the following issues for determination: 28. ***Whether the Defendant, as the registered owner of the suit property as at 1st September 2015, consented to the transfer of the suit property to the Plaintiff; and*** 29. ***Whether the title held by the Plaintiff is impeachable.*** 30. On the first issue, the Defendant submitted that he was the lawful proprietor of parcel No. ***CISMARA/MAJI MOTO/721****,* having been allocated the suit property by ***Maji Moto Group Ranch*** in place of his late father, ***Reteti Ole Nchoe***. That the Defendant’s proprietorship was reflected in the members’ register and was subsequently formalized through registration as proprietor on ***1st September 2015,*** and the issuance of a title deed on ***2nd September 2015****.* That the ***Green Card*** produced in evidence constituted the official register maintained by the ***Land Registrar*** and ***conclusively established*** the Defendant as the registered proprietor of the suit property. 31. Further, that, having been lawfully registered as proprietor and issued with a title deed by the ***Land Registrar***, no subsequent transfer of the suit property to the Plaintiff could have been validly effected without his knowledge or consent. The Plaintiff failed to produce any evidence demonstrating that the Defendant executed a transfer in favour of the Plaintiff or otherwise authorized any disposition of the suit property. 32. That the Plaintiff failed to establish the root of the alleged vendor’s title, and although the Plaintiff claimed to have purchased the suit property from ***Parmalai Ole Botoyo***, he failed to produce any ***Green Card, Certificate of official search*** ***or title deed*** showing that the said ***Parmalai Ole Botoy***o had ever been registered as proprietor of the suit property. That no transfer instrument, ***Land Control Board consent*** or application for consent was produced to demonstrate how title allegedly passed from ***Parmalai Ole Botoyo*** to ***the Plaintiff.*** 33. The Defendant further submitted that the Plaintiff failed to produce any documentary evidence demonstrating that ***Parmalai Ole Botoyo*** was ever allocated the suit property by **Maji Moto Group Ranch** or that he possessed any proprietary interest capable of being transferred to the Plaintiff. Therefore , the Plaintiff failed to establish any lawful chain of title linking his alleged vendor to the suit property. 34. Further, that the Plaintiff’s title was ***procured fraudulently*** and ***without the consent of the lawful proprietor***. That the Plaintiff’s registration was therefore incapable of conferring any proprietary rights upon him, and that the particulars of fraud pleaded in the ***Defence*** and ***Counter-claim*** had been established. 35. It was also submitted that ***Article 40(6)*** of the ***Constitution*** denies constitutional protection to property found to have been ***unlawfully acquired***, while **Section 26** of the ***Land Registration Act*** permits the impeachment of a ***Certificate of title*** where it has been obtained ***fraudulently, unprocedurally*** or through a corrupt scheme. That the existence of two titles over the same parcel called into question the legality of the Plaintiff’s title. 36. The Defendant also submitted that the ***Green Card*** produced in evidence was the ***authentic register maintained*** by the ***Land Registry*** and ***conclusively established*** that the Defendant was registered as proprietor on ***1st September 2015,*** before being issued with a title deed. Further, that the Plaintiff failed to rebut this evidence by producing any corresponding ***Green Card*** or official search demonstrating that ***Parmalai Ole Botoyo,*** had ever acquired title to the ***suit property,*** or that the Plaintiff had conducted any due diligence before purchasing the land. 37. Further, that courts ought not to aid litigants seeking to benefit from ***illegally acquired property***. Reliance was placed on ***Republic v Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others [2006] 1 KLR (E&L) 563****,* where the Court emphasized that courts should not uphold titles founded on land grabbing or other illegalities. 38. Further reliance was sought on ***Alberta Mae Gacci v Attorney General & 4 Others [2006] eKLR****,* where the Court denounced the ***acquisition of land through fraud, forgery or deceit*** and affirmed that such titles ought not to receive judicial protection. That once the root of a registered proprietor’s title is challenged, it is insufficient merely to produce a title deed and assert ownership. 39. He also relied on ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR****,* where the Court of Appeal held that a registered proprietor must go beyond the instrument of title and demonstrate the legality of the process through which the title was acquired. 40. Turning to the second issue, the Defendant submitted that the Plaintiff’s title was ***impeachable*** for having been acquired ***fraudulently, illegally and without*** following the prescribed legal procedure. That the Plaintiff had failed to ***establish the root of his title*** and was therefore not entitled to the protection accorded to registered proprietors under the ***Land Registration Act.*** 41. That the Plaintiff could not rely on the ***doctrine of indefeasibility*** of title merely by producing a certificate of title. Reliance was sought in the case of ***Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR****,* where the Court of Appeal held that a title founded on fraud or illegality cannot be protected merely because it has been registered, and that registration does not sanitize an otherwise unlawful transaction. 42. Further, that the ***doctrine of indefeasibility*** only protects titles acquired through ***a lawful and regular*** allocation process. Reliance was placed on ***Funzi Development Limited & 2 Others v County Council of Kwale & 2 Others [2014] eKLR****,* where the Court held that a title obtained through an ***unlawful allocation*** process is liable to cancellation notwithstanding registration. 43. The Defendant further submitted that ***Section 26(1)(b)*** of the ***Land Registration Act*** permits the ***impeachment of a title*** even where the registered proprietor was not personally involved in the fraud, provided that the title was acquired illegally, unprocedurally or through a corrupt scheme. 44. Reliance was placed on ***Alice Chemutai Too (suing as the personal representative of Kipkoech Tele (Deceased)) v Nickson Kipkurui Korir, Attorney General (sued on behalf of the Chief Land Registrar) & Consolidated Bank of Kenya Limited [2015] eKLR****,* where the Court affirmed that an innocent holder of a title may nonetheless lose it if the process leading to its acquisition was unlawful. 45. It was further submitted that the Plaintiff failed to demonstrate that he was ***a bona fide purchaser for value without notice***. That no evidence was produced to show that the Plaintiff undertook ***due diligence before purchasing*** the suit property or satisfied himself as to the ownership of the land. Reliance was placed on ***Samuel Kamere v Lands Registrar, Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR***, where the Court of Appeal held that a purchaser seeking the protection of the doctrine of bona fide purchaser must demonstrate that he conducted proper due diligence and acquired title from a person capable of passing a valid title. 46. He also relied on ***Said v Shume & 2 Others [2024] KECA 866 (KLR)****,* where the Court of Appeal reiterated that a purchaser cannot merely rely on the face of a title, but must interrogate the historical root of the vendor’s ownership whenever circumstances raise doubt. It was submitted that the Plaintiff failed to discharge that obligation. 47. The Defendant also relied on ***Kukan & Another (Administrators of the Estate of the Late Jason Kukan Lila) v Kibutha [2023] KECA 742 (KLR)*** *and* ***Esther Ndegi Njiru & Another v Leonard Gatei [2014] eKLR****,* where the Court observed that the prevalence of ***fraudulent land transactions*** imposes a duty upon purchasers to conduct thorough due diligence extending beyond an official search at the Lands Registry. 48. Further, that where the root of title is disputed, the Court must interrogate the historical process through which the impugned title was acquired. He relied on ***Jacob Wekesa Bokoko Balongo v Kincho Olokio Adeya & Another [2020] eKLR***, where the Court held that the legality of a title cannot be determined without examining its historical foundation. 49. The Defendant further submitted that a transaction founded upon an ***illegality cannot confer*** any legal rights upon the parties thereto. He cited ***Benjamin Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169****,* where Lord Denning famously held that *one cannot place something on nothing and expect it to stand, as it will collapse*. That if the Plaintiff’s vendor lacked title, the subsequent transfer to the Plaintiff was equally void. 50. He relied too on ***Chemey Investment Limited v Attorney General & 2 Others [2018] eKLR***, where the Court held that the constitutional protection afforded under ***Article 40*** of the ***Constitution*** does not extend to unlawfully acquired property. Reliance was placed on ***Attorney General v Francis Muroki Mwaura & 4 Others [2017] eKLR****,* wherein the Court reaffirmed that courts ought not to protect titles obtained contrary to the law. 51. Finally, the Defendant submitted that the Plaintiff had failed to prove his claim on a balance of probabilities while the Defendant had proved both his Defence and Counterclaim on the required standard of balance of probabilities. Consequently, the Defendant urged the Court to dismiss the Plaintiff’s suit with costs, and allow his ***Counter-claim*** as prayed. 52. Having carefully considered the pleadings, the oral and documentary evidence tendered by the parties, the rival written submissions, and the authorities relied upon, the following issues arise for determination: 53. ***Whether the Plaintiff has established a lawful and indefeasible title to Land Parcel No. CIS MARA/MAJI MOTO/721.*** 54. ***Whether either party has proved grounds for the impeachment and cancellation of the other’s title.*** 55. ***Whether the Plaintiff proved the claim for trespass and the reliefs sought.*** 56. ***Who should bear the costs of the suit.*** 57. The Plaintiff’s case is founded on the assertion that he ***lawfully purchased*** the suit property from ***Parmalai Ole Botoyo*** in the **year 2019,** following which he became the ***registered proprietor,*** and was issued with a title deed. The plaintiff contended that by virtue of ***Sections 24, 25 and 26*** of the ***Land Registration Act***, his title is ***absolute, indefeasible*** and incapable of challenge. 58. The Defendant, on the other hand, maintained that the Plaintiff’s vendor( ***Parmalai)*** never owned the suit property; that the land parcel had long been allocated to his late father, ***Reteti Ole Nchoe****,* and was ***subsequently transmitted*** to him; that he was issued with a title deed prior to the Plaintiff’s registration; and that the Plaintiff’s title was ***procured fraudulently and without any lawful transfer from the true proprietor***. 59. Therefore, it is evident that this dispute is not one where ownership can be resolved merely by comparing two title deeds. Rather, it concerns competing chains of title, each party asserting that his registration originated from a different allocation within ***Maji Moto Group Ranch.*** 60. Although ***Section 26(1)*** of the ***Land Registration Act*** accords a Certificate of title ***prima facie evidential value***, the section does not elevate every Certificate of title into incontrovertible proof of ownership. A title remains susceptible to challenge where it is shown to have been ***acquired through fraud or misrepresentation*** to which the proprietor was a party, or where it has been acquired ***illegally, unprocedurally or through a corrupt scheme.*** 61. The Court of Appeal in ***Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009, [2013] KECA 94 (KLR*),** succinctly explained that ***where the root of title is challenged***, it is insufficient for a registered proprietor merely to wave a title deed before the court. The proprietor must go beyond the instrument of title, and demonstrate the legality of the process through which the title was acquired. 62. Further, the Court of Appeal went on to state that once the root of title is under challenge, “*it is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title.”* 63. The same principle was reiterated by the Court of Appeal in ***Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, Civil Appeal No. 246 of 2013, [2015] KECA 816 (KLR*),** where the Court held that registration alone cannot *sanitize a title founded upon fraud or illegality*. The court emphasized that the ***Torrens system of registration*** was never intended to protect fraudulent dealings in land. 64. Likewise, in ***Funzi Island Development Limited & 2 Others v County Council of Kwale & 2 Others, Civil Appeal No. 252 of 2005, [2014] KECA 882 (KLR)****,* the Court held that a title founded upon an ***unlawful allocation process remains liable to cancellation notwithstanding registration.*** 65. The inevitable consequence of those authorities is that this Court must interrogate the historical root of each competing title herein and determine which party has demonstrated a lawful chain of ownership. 66. The Plaintiff testified that he purchased the suit property from ***PW2, Parmalai Ole Botoyo***, who in turn testified that he had been allocated the parcel of land by ***Maji Moto Group Ranch during subdivision.*** According to PW2, an error had initially been committed whereby land parcel ***number 721,*** had mistakenly been associated with ***Reteti Ole Nchoe*** ,instead of himself, and that the mistake was later rectified following an affidavit sworn by him in ***2017,*** before he was issued with a title deed in ***2018.*** 67. While PW2 maintained that the ***allocation error*** had been ***corrected administratively, no documentary evidence*** was placed before the Court demonstrating the actual rectification process. No minutes of the **Group Ranch**, ***allocation register, correspondence with the Land Registrar, rectification proceedings, mutation records, Gazette Notice or register amendment*** ,were produced to corroborate that narrative. 68. Indeed, apart from his oral testimony, **PW2** produced no documentary material showing that land parcel ***No. 721,*** had originally been allocated to him by ***Maji Moto Group Ranch.*** Significantly, ***PW2,*** admitted during cross-examination that although he was a member of ***Maji Moto Group Ranch,*** he did not even know his membership number. 69. Equally notable is the fact that no officials from this ***Maji Moto Group Ranch*** ,was called to explain the alleged ***allocation error*** or to confirm that land parcel ***No. 721*** had indeed been ***reallocated*** from ***Reteti Ole Nchoe*** to ***PW2.*** The Plaintiff equally elected not to call the ***Land Registrar,*** notwithstanding that the gravamen of his case rested on an alleged ***rectification*** undertaken at the ***Lands Registry***. 70. Under ***Sections 107, 109 and 112*** of the ***Evidence Act***, the burden rested squarely upon the Plaintiff to establish the facts upon which his claim depended. Where a litigant alleges that an ***official register was corrected***, the ***evidentiary burden*** necessarily extends to demonstrating when, how and under what lawful authority that correction was undertaken. 71. Conversely, the Defendant produced ***a Green Card*** and maintained that he had been registered as proprietor following succession to his late father’s interest. However, the Defendant’s own evidence was equally beset with significant inconsistencies. 72. In his pleadings and witness statement, the Defendant repeatedly asserted that ***Reteti Ole Nchoe*** was deceased, and that he inherited the suit property following his father’s death. However, during cross-examination he conceded that he had merely heard that ***Reteti Ole Nchoe,*** was alive somewhere in ***Kajiado a***nd further admitted that he had never personally known or seen him. 73. Those contradictions strike at the very foundation of the Defendant’s pleaded case. If indeed the Defendant’s claim was predicated upon succession to a deceased proprietor, it was incumbent upon him to establish not only the death of the alleged proprietor, but also the legal process through which transmission occurred. No death certificate, grant of representation, confirmation of grant or transmission documents were produced. 74. It is trite that parties are bound by their pleadings. A litigant cannot plead one factual scenario and subsequently advance an entirely different case through oral testimony. The Court of Appeal in ***Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others, Civil Appeal No. 219 of 2013, [2014] KECA 890 (KLR)* ,**reaffirmed that parties are bound by their pleadings and that evidence which departs from those pleadings cannot found a judgment. 75. Furthermore, while the Defendant relied heavily upon the ***Green Card,*** serious questions emerged regarding its evidential value. The Plaintiff challenged both ***its authenticity*** and ***consistency*** with the title deed produced by the Defendant, pointing to discrepancies in proprietorship entries and registration dates. 76. More importantly, despite alleging that the Plaintiff’s title had ***been cancelled*** by the ***Land Registrar*** and that he had subsequently ***been re-issued*** with another title, the Defendant equally failed to call the Land Registrar to explain how such cancellation occurred. ***No rectification proceedings, Gazette Notice, statutory notice or documentary record demonstrating compliance with Sections 79 or 80*** of the ***Land Registration Act,*** was produced before this Court. 77. This omission is significant because ***cancellation of a* registered title** is not an ***informal administrative act***. It affects constitutionally protected proprietary rights, and must be undertaken strictly in accordance with the law. In the absence of evidence from ***the Land Registrar*** explaining the competing entries in the register, this Court is left with conflicting assertions from the parties unsupported by the custodian of the register. 78. The Court also notes that both parties accused the other of fraud. ***Fraud,*** however, is a serious allegation which must not only be specifically pleaded, but must also be strictly proved. Although the standard of proof is below that of beyond reasonable doubt, it is considerably higher than proof on a mere balance of probabilities. 79. That principle has consistently been affirmed by Kenyan courts, including in ***Kinyanjui Kamau v George Kamau Njoroge, Civil Appeal No. 132 of 2005, [2015] KECA 347 (KLR)****,* where the Court of Appeal held that allegations of fraud require proof that is higher than a balance of probabilities but not as high as proof beyond reasonable doubt. 80. Having evaluated the totality of the evidence, this Court is not persuaded that either party established the ***alleged fraud perpetrated by the other to the requisite standard***. The Plaintiff did not prove the ***alleged fraudulent interception*** of PW2’s allocation records, while the Defendant equally failed to prove that the Plaintiff participated in any fraudulent scheme leading to his registration. 81. What emerges from the evidence is a classic case of competing titles emanating from an evidently problematic subdivision and registration process within ***Maji Moto Group Ranch.*** Unfortunately, the parties elected not to call the very witness who would have resolved those competing claims, namely officials ***of Maji Moto Group Ranch*** and the ***Land Registrar*** who maintained the register. 82. Although both parties’ respective chains of title disclosed evidentiary gaps, this Court is nonetheless required to determine the dispute on the evidence placed before it and in accordance with the applicable civil standard of proof. The issue is therefore not whether either party presented a flawless chain of title, but whether, on a balance of probabilities, one party established a better root of title than the other. 83. In that regard, the Court finds that the Plaintiff’s chain of title is comparatively more coherent. His vendor, ***Parmalai Ole Botoyo,*** testified before the Court, explained the allocation of the suit property by ***Maji Moto Group Ranch***, the circumstances under which the allocation records were allegedly rectified, the subsequent issuance of his title and the sale of the property to the Plaintiff. 84. PW2’s evidence was subjected to cross-examination, and was generally consistent with the Plaintiff’s account. Although the Plaintiff did not produce documentary evidence from ***Maji Moto*** ***Group Ranch*** or the ***Land Registrar*** to corroborate every aspect of that process, his chain of acquisition was at least explained through direct evidence from the person from whom he acquired title. 85. By contrast, the Defendant’s claim rested almost entirely upon an alleged ***transmission of the suit property*** from his late father, ***Reteti Ole Nchoe.*** However, ***no death certificate, grant of letters of administration, certificate of confirmation of grant or instrument of transmission was produced to demonstrate*** how the property legally devolved to him. 86. More significantly, the Defendant’s own testimony materially contradicted his pleadings. While he pleaded that he inherited the land from his deceased father, he admitted during cross-examination that ***he had heard his father was alive and residing*** in ***Kajiado*** and further stated that he had never seen him. Those contradictions substantially undermined the credibility of the Defendant's account regarding the very foundation of his claim. 87. Equally, although the Defendant alleged that the Plaintiff’s title had been ***fraudulently procured*** and ***subsequently cancelled*** before another title was issued to him, he called neither the **Land Registrar** nor any official of ***Maji Moto Group Ranch*** to substantiate those allegations. 88. No documentary evidence ***demonstrating rectification of the register, cancellation proceedings or compliance with Sections 79 and 80 of the Land Registration Act*** was tendered. Those omissions are particularly significant because the Defendant bore the burden of proving the allegations of fraud and illegality pleaded in his Counterclaim. 89. Weighing the evidence as a whole, this Court is satisfied that while the Plaintiff’s evidence was not without shortcomings, it was considerably more credible and internally consistent than that of the Defendant. On a balance of probabilities, the court finds and holds that the Plaintiff has established a superior root of title to the suit property. The Defendant has failed to displace that title by credible evidence and demonstrate ***fraud, illegality*** or any other ground recognized under ***Section 26(1)*** of the ***Land Registration Act.*** 90. The Plaintiff seeks a declaration that he is the absolute and indefeasible proprietor of the suit property together with a permanent injunction restraining the Defendant from interfering with it. 91. Conversely, the Defendant, through his ***Counterclaim,*** seeks *cancellation of the Plaintiff’s title, rectification of the land register and restoration of himself as the registered proprietor of Land Parcel No. CIS MARA/MAJI MOTO/721*. 92. The determination of these competing prayers necessarily calls for an examination of whether either party has established any of the statutory grounds for impeachment of title under the Land Registration Act. 93. The law governing cancellation and rectification of title is principally found in ***Sections 26 and 80*** of the Land Registration Act. While ***Section 26 permits*** the Court *to impeach a title obtained through fraud, misrepresentation, illegality, unprocedural acquisition or a corrupt scheme,* ***Section 80*** empowers the Court to order *rectification of the register where it is satisfied that a registration was obtained, made or omitted by fraud or mistake.* 94. The Court’s jurisdiction to cancel title is, however, not exercised lightly. A registered proprietor enjoys statutory protection, and before a court can direct cancellation of a title, the party seeking such relief must place before the court cogent, credible and convincing evidence demonstrating that the impugned registration falls within the circumstances contemplated under Section 26(1) of the Land Registration Act. 95. In ***Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another, Environment and Land Case No. 609B of 2012, [2013] eKLR****,* the Court observed that ***Section 26(1)(b)*** introduced a significant qualification to the ***doctrine of indefeasibility*** of title by permitting impeachment even where the registered proprietor was not personally involved in the fraud, provided the title had been ***acquired illegally, unprocedurally or through a corrupt scheme.*** The Court held that the statute is directed at the legality of the process through which the title was acquired rather than merely the conduct of the registered proprietor. 96. A similar position was adopted in ***Alice Chemutai Too (suing as the Personal Representative of the Estate of Kipkoech Tele (Deceased)) v Nickson Kipkurui Korir, Attorney General (sued on behalf of the Chief Land Registrar) & Consolidated Bank of Kenya Limited, Environment and Land Case No. 51 of 2014 (O.S.), [2015] eKLR****,* where the Court held that once a title is shown to have originated from an illegal or fraudulent process, the protection ordinarily accorded to a registered proprietor cannot avail him, irrespective of whether subsequent transactions were undertaken in good faith. 97. In the present case, the Defendant bore the burden of proving the ***allegations of fraud and illegality pleaded in his Counterclaim***. While he alleged that the Plaintiff’s title was procured through fraudulent dealings orchestrated by former officials of ***Maji Moto Group Ranch***, no such evidence form Lands Registry was called to authenticate those allegations or explain the alleged fraudulent registration. 98. Equally, although the Defendant asserted that the Plaintiff’s title had ***been cancelled*** before the Defendant was issued with another title, no rectification proceedings, Gazette Notice, statutory notice, register extract or evidence from the Land Registrar was produced demonstrating that the cancellation was undertaken in accordance with the law. Indeed, the officer best placed to explain the competing entries in the register was the Land Registrar, yet no such evidence was tendered. 99. Although the Plaintiff did not produce every document relating to the allocation and rectification process, the evidence tendered by the Plaintiff and PW2 sufficiently explained the chain of acquisition leading to his registration. In contrast, the Defendant failed to adduce cogent evidence to prove that the Plaintiff’s title was procured through ***fraud***, ***illegality*** or an ***unprocedural process***. The evidential deficiencies identified in the Plaintiff’s case do not outweigh the more fundamental deficiencies in the Defendant’s chain of title. 100. In light of the Court's finding under the first issue that the Plaintiff has established, on a balance of probabilities, a superior root of title to the suit property, the Defendant has failed to prove any of the statutory grounds under ***Section 26(1)*** of the ***Land Registration Act*** for impeaching that title. 101. Consequently, the Defendant’s prayer for rectification of the register and cancellation of the Plaintiff’s title cannot succeed. Having failed to ***prove fraud, illegality, mistake or any other ground*** contemplated under ***Sections 26 and 80*** of the ***Land Registration Act***, the Defendant’s ***Counter-claim*** must fail. 102. In the premises, the Court finds and holds that the Defendant has failed to establish any of the grounds set out under ***Sections 26(1) and 80*** of the ***Land Registration Act*** to warrant the impeachment of the Plaintiff's title. 103. Consequently, the Defendant’s ***Counter-claim*** for ***cancellation of the Plaintiff’s title***, ***rectification of the register and restoration*** of himself as the registered proprietor of ***Land Parcel No. CIS MARA/MAJI MOTO/721*** is devoid of merit and is hereby dismissed. 104. Having found that the Plaintiff has established a superior root of title and that the Defendant has failed to impeach the Plaintiff’s registration, the next issue is whether the Defendant’s occupation of the suit property amounted to trespass, and whether the Plaintiff is entitled to the consequential reliefs sought. 105. The Plaintiff seeks ***a permanent injunction restraining*** the Defendant ***from entering upon, trespassing, alienating, fencing*** or otherwise ***interfering*** with the suit property. He further seeks a declaration that he is the absolute and indefeasible proprietor of the suit property, an order directing the Defendant to demolish the structures erected thereon and an award of mesne profits. 106. ***Trespass*** to land consists of the ***unjustifiable intrusion*** by one person upon land in the possession of another. The tort protects the right to possession, and once a plaintiff establishes a better legal right to possession than the defendant, any unlawful entry or continued occupation by the latter constitutes trespass. 107. In ***Park Towers Limited v John Mithamo Njika & 7 Others, Civil Appeal No. 132 of 2010, [2014] eKLR***, the Court of Appeal held that trespass is any unjustifiable intrusion upon land in the possession of another and that a party alleging trespass must first establish a legal right to possession of the land. 108. Similarly, in ***Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR****,* the Court observed that: “***Trespass is proved by showing that the plaintiff is the owner or is entitled to possession of the land and that the defendant entered upon the land without lawful justification***.” 1. Having already found that the Plaintiff established, on a balance of probabilities, a superior root of title to the suit property and that the Defendant failed to impeach that title, it follows that the Plaintiff has established a better legal right to possession of ***Land Parcel No. CIS MARA/MAJI MOTO/721.*** 2. The Defendant admitted that he entered upon the suit property and erected structures thereon, his justification being that he was the lawful proprietor of the land. That justification cannot stand in view of this Court's findings under the first and second issues. Consequently, the Defendant’s continued occupation and activities upon the suit property constitute trespass. 3. The Plaintiff is therefore entitled to the protection of the law against further interference with his proprietary rights. The Court is satisfied that the prayer for a permanent injunction has been proved and should issue to restrain the Defendant, his servants, agents or anyone acting under his authority from trespassing upon, occupying, fencing, alienating or in any other manner interfering with the Plaintiff's quiet possession and enjoyment of the suit property. 4. Likewise, the Plaintiff sought an order directing the Defendant to demolish the structures erected upon the suit property. Having found that those structures were erected by a person who had no lawful entitlement to occupy the land, the Court is satisfied that the Plaintiff is entitled to the removal of the said structures. 5. The Defendant shall remove the structures erected on the suit property ***within 90 days*** from the date of this Judgment, failing which the Plaintiff shall be at liberty to remove them at the Defendant’s cost. 6. The Plaintiff also prayed for ***mesne profits***. The law is settled that mesne profits constitute special damages which must not only be specifically pleaded but must also be strictly proved. In ***Attorney General v Halal Meat Products Limited, Civil Appeal No. 270 of 2008, [2016] eKLR****,* the Court of Appeal reaffirmed that mesne profits must be specifically pleaded and proved by evidence demonstrating the actual loss suffered. 7. In the present case, although the Plaintiff pleaded a claim for mesne profits, no evidence was tendered demonstrating the income derived from the suit property, the period of unlawful occupation, the rental or commercial value of the land or any other basis upon which the Court could assess such profits. The claim therefore fails for want of proof. 8. Accordingly, the Plaintiff has proved his claim for declaratory and injunctive reliefs as well as the order for removal of the Defendant’s structures, but has failed to prove his claim for mesne profits. 9. The final issue concerns the costs of the suit. The general principle governing the award of costs is set out in ***Section 27(1)*** of the ***Civil Procedure Act, Cap.*** ***21 Laws of Kenya***, which provides that costs shall follow the event unless the Court, for good reason, orders otherwise. The discretion vested in the Court must, however, be exercised judiciously and not capriciously. 10. In ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, Petition No. 4 of 2012, [2014] KESC 41 (KLR*)**, the Supreme Court held that although the award of costs is discretionary, the general rule remains those costs follow the event, save where the circumstances of the case justify a departure from that principle. The Court observed that the successful party should ordinarily be compensated for the expense incurred in vindicating his rights. 11. Similarly, in ***Party of Independent Candidate of Kenya & Another v Mutula Kilonzo & 2 Others, Civil Appeal No. 51 of 2013, [2013] KECA 505 (KLR)****,* the Court of Appeal reiterated that while the Court retains discretion in matters of costs, such discretion must be exercised on sound judicial principles and that a successful litigant should ordinarily be awarded costs unless there exists sufficient reason to order otherwise. 12. In the present case, the Plaintiff has substantially succeeded in his claim, and has established a superior root of title to the suit property, successfully resisted the Defendant’s ***Counter-claim*** and is entitled to declaratory and injunctive reliefs. Although the Plaintiff has not succeeded in his claim for ***mesne profits***, that failure does not detract from his overall success in the litigation. 13. The Court finds no exceptional circumstances that would justify departing from the general rule that costs follow the event. Accordingly, the Plaintiff shall have the costs of both the suit and the Counterclaim. 14. Consequently, this Court makes the following orders: 15. ***A declaration be and is hereby issued that the Plaintiff is the lawful and indefeasible proprietor of Land Parcel No. CIS MARA/MAJI MOTO/721.*** 16. ***A permanent injunction be and is hereby issued restraining the Defendant, whether by himself, his servants, agents or any person claiming through him, from entering upon, trespassing, fencing, alienating or in any other manner interfering with the Plaintiff’s quiet possession and enjoyment of Land Parcel No. CIS MARA/MAJI MOTO/721.*** 17. ***The Defendant shall remove all structures erected on Land Parcel No. CIS MARA/MAJI MOTO/721 within 90 days from the date of this Judgment, failing which the Plaintiff shall be at liberty to remove the same at the Defendant’s cost.*** 18. ***The Plaintiff’s claim for mesne profits is declined for want of proof.*** 19. ***The Defendant’s Counterclaim is dismissed in its entirety.*** 20. ***The Plaintiff shall have the costs of the suit and the Counterclaim together with interest thereon at court rates***. ***Dated, Signed and Delivered Virtually at Narok this 9th Day of July 2026.*** ***L. GACHERU*** ***JUDGE*.** ***Delivered Online in the presence of:*** ***Elijah Meyoki – Court Assistant*** ***Mr Ameto for the Plaintiff.*** ***Ms Rotiken holding brief for Mr Kamwaro for the Defendant.*** ***L. GACHERU*** ***JUDGE*.**