https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/397

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **ELC CASE NO. E003 OF 2025** **MITHODY BWIRE VS JAMES SUNDAY AND 4 OTHERS** **JUDGMENT** 1. Vide a plaint dated 29th January 2025, the plaintiff seeks the following orders: 2. That an order of permanent injunction be issued restraining the defendants jointly and severally, whether by themselves, their agents, servants and/or employees and/or anyone claiming through them, from entering, staying, using and/or in any other way interfering with the plaintiff’s use, occupation and possession of LR. No. BUNYALA/BULEMIA/8368 and costs of the suit. 3. The plaintiff’s claim is that on 28th July 2007, he purchased ½ acre of BUNYALA/BULEMIA/300 at Kshs 25,000 from one Patrick Bwire Onyango and paid the full price thereof. That the boundaries were demarcated in the presence of the Assistant Chief, among others, and he took possession of the said parcel and even built a house thereon. However, he came to learn that the portion Patrick had sold to him actually belonged to one Stephen Odhiambo upon subdivision. That he approached Stephen Odhiambo, who agreed and offered him the same portion measuring 0.30ha at Kshs 30,000, which he paid on 4th April 2020 and had the said parcel finally registered to him. That now the defendants have since trespassed onto his land, demolished his house and made it impossible for him to utilise the said parcel of land. He prays for an injunction against them. 4. In his evidence as PW1, the plaintiff reiterated the contents of his plaint in evidence and went ahead to produce a copy of the land sale agreement dated 28/7/2007 as Pex no. 1, a copy of mutation form for BUNYALA/BULEMIA/3948 as Pex no. 2, a copy of the land sale agreement dated 4th April 2020 as Pex no. 3, a copy of title deed for BUNYALA/BULEMIA /8368 as Pex no. 4, a copy of mutation form for BUNYALA/BULEMIA/2817 as Pex no. 5, a copy of mutation form for BUNYALA/BULEMIA/300 as Pex no. 6, a copy of title deed for BUNYALA/BULEMIA 3948 as Pex no. 7, a copy of certificate of search for BUNYALA/BULEMIA 300 as Pex no. 8, OB reports for Port Victoria Police station as Pex no. 9. He admitted not conducting a search on the property before the purchase in the year 2007 and that the original land BUNYALA/BULEMIA/300 was registered in the names of Mudenyo and Stephen Ojiambo Juma whom he both found living on the said land. 1st and 2nd and 4th and 5th defendants are Mudenyo’s grandsons, while the 3rd defendant purchased land from Mudenyo. That it was a surveyor who noticed the acreage on the ground was not 1/2acre but 0.31 HA. 5. PW2 Stephen Ouma Odhiambo stated that the original land BUNYALA/ BULEMIA/300 was registered in the names of Ouma Ojiambo and Juma Mudenyo each owning ½ a share of the said land. That he is the one who succeeded Ouma Ojimabo and the entire portion was subdivided into two portions creating BUNYALA/BULEMIA 3948 and BUNYALA/BULEMIA 3949. That BUNYALA/ BULEMIA/3948 was registered in his names while3949, became registered to JUMA MUDENYO. That it was at this point that they realized the 1/2cre already sold to the plaintiff by one Patrick Bwire Onyango was actually located on his portion and not on Juma’s portion. The plaintiff had already built a house thereon, so he purchased from him the said portion afresh on 4th April 2020. That the plaintiff is now the registered owner of the suit land BUNYALA/ BULEMIA 8368.The defendants have no claim over the said land, and any acts by them amount to trespass, which should thus be restrained. 6. In their statement of defence (undated), the defendants state that BUNYALA/ BULEMIA/300 was registered in the names of Juma Mudenyo, their father and Ouma Ojiambo as joint owners. That they were aware that their late brother, Patrick Bwire, sold to the plaintiff a piece of their land on which the plaintiff built a semi-permanent house, which later collapsed. That it was the plaintiff’s son who collected the iron sheets that remained from the structure. That they had no dispute with the plaintiff 7. DW1 James Sunday Barasa stated denied demolition of the plaintiff’s house and claimed to have equally purchased land from the original BUNYALA/BULEMIA/300 from the family of Juma Mudenyo. That the plaintiff had a right to quiet possession of his land. 8. DW2 Dennis Juma Bwire Mudenyo reiterated the testimony of his brother DW1 and stated that he did not know who Juma Odhiambo was and the two parcels of land 3948 and 3949 each measures 4.8ha. 9. DW3 Charles Ouma Ahenda testified that he knew the plaintiff as his neighbor who like him, had purchased his portion from Juma Mudenyo’s family and built thereon a semi-permanent house. That he had no dispute with the plaintiff now his occupation of his land. that he did not demolish his house but rather, the same collapsed. 10. DW4 Stephen Mudenyo Onyango reiterated the testimony of his brother DW1 and DW2 and further stated that indeed the plaintiff purchased land from Patrick Bwire and built a semi-permanent house thereon which collapsed. That they have never threatened the plaintiff with any harm, nor did they demolish his house as alleged. 11. In his submissions, the plaintiff states that the defendants demolished his house after having differences with Stephen Ojiambo over his ownership of BUNYALA/BULEMIA 8368, which was part of the BUNYALA/BULEMIA 300, which they feel entitled to in total. That there is no dispute that he purchased part of BUNYALA/BULEMIA/300 from their relative Patrick Bwire. That defendants have not produced any evidence to impeach his title to the said land and hence pursuant to section 25 of the Land Registration Act, he is the bona fide owner. That they should now be restrained from interfering with his possession of LR BUNYALA/BULEMIA 8368. 12. Defendants on their part submitted that BUNYALA/BULEMIA 8368 is a product of a subdivision of BUNYALA/BULEMIA/3948, which is a further subdivision of BUNYALA/BULEMIA/300 initially registered in the names of Juma Mudenyo and Ouma Ojiambo in the year 1984. That Stephen Ojiambo went ahead, without the involvement of the beneficiaries, to subdivide the original land 300 illegally in the year 2010. That the ownership of Stephen was illegal as the same went against the provisions of section 91 of the Land Registration Act and therefore the subsequent ownership by the plaintiff is null and void. ***Analysis and determination*** 1. The dispute raises two broad issues: whether the plaintiff has established a legal right over LR No. BUNYALA/BULEMIA/8368 and, if so, whether he has proved the trespass complained of so as to warrant a permanent injunction. 2. From the evidence on record, there is very little controversy regarding the plaintiff's ownership of the suit property. The plaintiff produced a title deed for LR No. BUNYALA/BULEMIA/8368 (PExh.4), together with the chain of transactions and mutation forms demonstrating how the parcel came into existence. PW2, Stephen Ouma Odhiambo, explained that the original parcel BUNYALA/BULEMIA/300 was jointly owned by Ouma Ojiambo and Juma Mudenyo in equal shares. Following succession, his father's share became parcel No. 3948 while Juma Mudenyo's share became parcel No. 3949. Upon realizing that the portion previously sold to the plaintiff by Patrick Bwire physically fell within parcel No. 3948, PW2 regularized the position by selling that portion to the plaintiff, culminating in the registration of LR No. BUNYALA/BULEMIA/8368 in the plaintiff's name. 3. The defendants did not dispute that the plaintiff initially purchased land from Patrick Bwire. Indeed, all the defence witnesses admitted that the plaintiff bought land from Patrick Bwire, entered the land and constructed a semi-permanent house thereon. DW1 expressly testified that the plaintiff had a right to quiet possession of his land. DW3 equally stated that he had no dispute with the plaintiff over his occupation of the land. Those admissions substantially support rather than contradict the plaintiff's case. 4. The defendants sought to challenge the plaintiff's title by submitting that the subdivision of parcel No. 300 undertaken by Stephen Ouma Odhiambo was illegal for want of involvement of beneficiaries and offended section 91 of the Land Registration Act. However, those allegations remained mere submissions unsupported by evidence.It is trite that submissions cannot take the place of evidence as held in the case of ***Mwangi Stephen Muriithi & Another [2014] eKLR*** and ***Moi v Murithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR.*** 5. No succession proceedings, grant of representation, land records, expert evidence or official documents were produced to demonstrate that PW2 lacked authority to succeed his father's interest or that the subdivision creating parcels Nos. 3948 and 3949 was ever cancelled or declared unlawful. In any event, the defendant neither pleaded nor proved any fraud or illegality in the acquisition of the plaintiff's title. Fraud or illegality must be specifically pleaded and strictly proved. See the cases of ***MFI Office Solutions -vs- Landlords Limited & 3 others[2025] KECA 1200 (KLR) and Arthi Highway Developers Limited -vs- West End Butchery Limited & 6 others [2015] eKLR.*** 6. Equally, no counterclaim was filed seeking cancellation of the plaintiff's title or rectification of the register. In the case of ***Treadsetters Tyres Ltd V John Wekesa Wepukhulu [2010] Kehc 341 (Klr),*** it was held that a party is only bound by his pleadings. The plaintiff's title therefore enjoys the protection accorded under Sections 24, 25 and 26 of the Land Registration Act. In the absence of proof of fraud, illegality or procedural impropriety attributable to the plaintiff, this court has no legal basis for impeaching his title. 7. The remaining question is whether the defendants trespassed upon the plaintiff's land. 8. The plaintiff alleged that the defendants demolished his house and prevented him from utilizing the land. However, beyond his own testimony and the OB reports, no independent evidence was tendered to prove that the defendants were responsible for the alleged demolition. No photographs of the demolished house were produced, no investigating officer testified, and no witness who saw the demolition was called. 9. On the contrary, every defence witness consistently maintained that the plaintiff's semi-permanent house collapsed on its own and denied participating in its demolition. Significantly, despite denying demolition, the defendants equally maintained that they had no dispute with the plaintiff's ownership or occupation of the land. 10. Although the court is not satisfied that the alleged demolition was proved on a balance of probabilities, it is evident from the pleadings and evidence that the defendants continue to question the legitimacy of the plaintiff's title and have asserted that the suit property belongs to the Mudenyo family. Indeed, their defence and submissions seek to invalidate the plaintiff's title altogether. Such assertions create a real likelihood of future interference with the plaintiff's quiet possession. 11. A permanent injunction is intended to protect an established legal right from actual or threatened infringement. ***In Kenya Airports Authority vs Paul Njogu Mungai & 2 others) [1997] eKLR*** the court held that “…. *where an applicant seeks a mandatory interlocutory injunction, the court will act sparingly and only accede to the request and grant such an order in the clearest of cases*”. Having found that the plaintiff is the registered proprietor of LR No. BUNYALA/BULEMIA/8368 and that the defendants have failed to establish any legal interest capable of defeating that title, the plaintiff is entitled to protection of his proprietary rights notwithstanding that the alleged demolition itself was not proved. 12. Accordingly, judgment is entered for the plaintiff, and I make the following orders: 13. A permanent injunction is hereby issued restraining the defendants, whether by themselves, their agents, servants, employees or any person claiming through them, from entering upon, remaining on, using, occupying, interfering with or in any manner whatsoever interfering with the plaintiff's quiet possession and enjoyment of LR No. BUNYALA/BULEMIA/8368. 14. The plaintiff shall have the costs of the suit. It is so ordered. Right of appeal within 30 days hereof. Dated, signed and delivered at Port Victoria this 16th July 2026, in Kiswahili the language the defendants state to fully understand, in the presence of the plaintiff, his advocate Mr Otanga, the defendants all present in person and Mr Masiga, the Court Assistant. **Hon. Anne Njeru** **SENIOR RESIDENT MAGISTRATE.**