https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4455

Ondatto & 2 others v Obimbira & 3 others (Environment and Land Case 217 of 2014) [2026] KEELC 4455 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4455 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case 217 of 2014 BN Olao, J July 16, 2026 Between Catherine K. Ondatto 1st Plaintiff Henerico Naluo Ouma 2nd Plaintiff Mary Muria Ondatto 3rd Plaintiff and Leonard W. Obimbira 1st Defendant Rubela Nerima Obimbira 2nd Defendant Rose Amukasa Okwako 3rd Defendant The Land Registrar, Busia (K) 4th Defendant Judgment 1.This judgment was due for delivery on 19th February 2026. However, the same has been delayed following my transfer to Iten Court and which was effective 15th December 2025. The same is regretted. 2.By a further amended plaint dated 16th February 2021 and filed herein on 3rd March 2021, Catherine K. Ondatto, Henerico Naulo Ouma and Mary Muriza Ondatto (the 1st, 2nd and 3rd Plaintiffs respectively) sought judgment against Leonard W. Obimbira, Rubeca Nerima Obimbira, Rose Amukasa Okwako and the Land Registrar Busia (the 1st, 2nd, 3rd and 4th Defendants respectively) in the following terms:a.A declaration that the Plaintiffs are entitled to exclusive and unimpeded right of possession of the land parcels No. Bunyala/Bulemia/2622 and 4291.b.A permanent injunction restraining the 1st, 2nd and 3rd Defendants whether by themselves, their servants or agents or otherwise howsoever from remaining on or continuing in occupation of the land parcels No. Bunyala/Bulemia/2622 and 4291.c.General damages for trespass and loss resulting from the illegal occupation of the land parcels No. Bunyala/Bulemia/2622 and 4291 by the 2nd Defendant.d.Mesne profits to be computed at market rates.e.Costs of this suit together with interest until payment in full.f.A declaration that the title issued to the 2nd Defendant for the land parcel No. Bunyala/Bulemia/4209 be and is hereby revoked having been cancelled as a consequence of the order in Miscellaneous Application No 9 of 2014 be declared to be null and void.g.A declaration that the 1st and 3rd Defendants, whether by themselves, servants, agents or otherwise howsoever, are wrongfully in occupation of the land parcels No. Bunyala/Bulemia/2622 and 4291 and are accordingly trespassers on the same.h.A declaration that the 1st and 3rd Defendants whether by themselves, their servants or agents are Not entitled to remain on the land parcels No. Bunyala/Bulemia/2262 and 4291.i.Vacant possession of the land parcels No. Bunyala/Bulemia/2622 and 4291.j.Costs of this suit and interest until full payment.k.Any such other or further relief as the HoNorable Court may deem appropriate.l.Removal or demolition of any structures, developments or additions erected or brought onto the land parcels No. Bunyala/Bulemia/2622 and 4291 by the 1st and 3rd Defendants or their agents whatsoever so called to be to the suit land.m.The Ocs Port Victoria Police Stationbe ordered to effect the removal and or demolition of the structures, developments or additions erected or brought onto the land parcels No. Bunyala/Bulemia/2622 and 4291 by the 1st and 2nd Defendants or their agents whatsoever so called to the suit land.The record shows that the 2nd Defendant passed away in 2022 as per the ruling of Omollo J delivered on 4th August 2022. She does Not appear to have been substituted and the suit against her has abated. 3.The gist of the Plaintiff’s case is that at all material time the 1st Plaintiff was the joint registered proprietor of the land parcel No. Bunyala/Bulemia/ 2622 measuring 2.43 Hectares, the 2nd Plaintiff was the joint registered proprietor of the land parcel No. Bunyala/Bulemia/2623 while the 3rd Plaintiff is the registered proprietor of the land parcel No. Bunyala/Bulemia/2624. All those parcels of land arose from the mutation of the original land parcel No. Bunyala/Bulemia/833 on 26th June 1990. The title to the land parcel No. Bunyala/Bulemia/2623 was further mutated into Bunyala/Bulemia/4290, 4291 (registered in the name of the 2nd Plaintiff) and are 4292 and 4293 on 5th September 2013. 4.That the 2nd Defendant obtained title to a purported land parcel kNown as Bunyala/Bulemia/4209 on 18th September 2014 claiming it to be a mutation of the land parcel No. Bunyala/Bulemia/833 which had ceased to exist at the time of the mutation. Additionally, the size of the land parcel No. Bunyala/Bulemia/4209 which the 2nd Defendant claims to own is the size of the parcel No. Bunyala/Bulemia/833. As such, the Plaintiffs contend that the mutation by the 2nd Defendant was fraudulent. 5.The particulars of fraud as against the 2nd Defendant are pleaded in paragraph 4A of the further amended plaint as follows:1.The 2nd Defendant was Not the proprietor of the land parcel No. Bunyala/Bulemia/833 and could Not mutate the said land.2.Bunyala/Bulemia/833 which the 2nd Defendant purportedly mutated to create Bunyala/Bulemia/4209 had long ceased to exist on 26th June 1990 after the Register was closed and was incapable of mutation.3.The indicated size of the purported Bunyala/Bulemia/833 by the Defendant as 0.76 Hectares is the exact size of the parcel No. Bunyala/Bulemia/4209 for which she acquired title and which is Not a mutation.4.The title was obtained in secrecy as the Plaintiffs were kept in total darkness as their parcels of land were exposed to legal and administrative terry meandering.5.The 2nd Defendant kNowingly misled the land office to register the land No. Bunyala/Bulemia/4209 in her name.6.The 4th Defendant kNowingly proceeded with the mutation of Bunyala/Bulemia/833 while the register was Non-existent after the mutation of 26th June 1990.7.The 4th Defendant did Not conduct any due diligence to confirm if the 2nd Defendant was the registered owner of Bunyala/Bulemia/833 before proceeding with the mutation.8.The 4th Defendant carelessly indicated that the 2nd Defendant’s parcel of land measures 0.76 Hectares which was a similar size to the mutated parcel.9.The 4th Defendant erroneously and fraudulently issued the 2nd Defendant with a title without ascertaining who the genuine owners of the land parcel Bunyala/Bulemia/833 really were.10.The 2nd Defendant’s alleged parcel of land Bunyala/Bulemia/4209 measures 0.76 Hectares which is exactly the same size as the mutated land parcel Bunyala/Bulemia/833.11.Land parcel Bunyala/Bulemia/833 which the 2nd Defendant purported to mutate long ceased to exist at the Lands Registry on 26th June 1990 after the Register was closed.12.The 4th Defendant although they knew that the Register for Bunyala/Bulemia/833 was closed upon the initial mutation in 1990, they went on to allow a new mutation to be made.The 3rd Defendant kNowingly and maliciously commenced development of a permanent nature to the detriment of the Plaintiff’s claim to the land parcel which actions amounted to trespass and are meant to deprive the Plaintiff’s access and usufruct of their land. The 4th Defendant erroneously allowed mutation of the land parcel Bunyala/Bulemia/833 yet he knew or ought to have kNown that the Register over this land parcel closed upon its initial mutation on 26th June 1990 to create land parcels Bunyala/Bulemia/2620, 2621, 2622, 2623 and 2624. The 4th Defendant fraudulently handled the mutation of the land parcel Bunyala/Bulemia/833 to the detriment of the interest of the registered title holders without recourse to the applicable law. 6.The particulars of fraud as against the 4th Defendant have been pleaded in paragraph 4D of the further amended plaint as follows:i.The 4th Defendant intermeddled with the land records to resuscitate the title to Bunyala/Bulemia/833.ii.Upon giving the title to Bunyala/Bulemia/833 a fresh breath of life, the 4th Defendant purported to conduct a mutation of the said parcel even in the face of the fact of closure of the Register and the extinguishment of that title in the year 1990.iii.The 4th Defendant did Not at any time confirm that the land parcel was capable of mutation considering that the 2nd Defendant was Not yet the registered owner of the same.iv.The 4th Defendant was negligent in that he indicated an erroneous size of the land parcel Bunyala/Bulemia/833.v.The 4th Defendant purported to mutate the land parcel No. Bunyala/Bulemia/833 and allocate it a new number without ascertaining its size or conducting a survey or contacting the owners of neighboring land parcels.vi.The 4th Defendant was negligent in issuing a title deed to 2nd Defendant unprocedurally and irregularly.vii.The 4th Defendant has failed, neglected and/or declined to heed entreaties by the Plaintiffs to correct his negligent and fraudulent actions and seems intent to propping up an obvious illegality.The Plaintiffs have been registered as owners of the land in dispute for a long period but in 2014, the quiet user was interrupted and frustrated as the 1st Defendant without any color of right and in flagrant disregard of the Plaintiffs wishes invaded the said land and destroyed trees and crops. 7.The particulars of trespass by the 1st Defendant have been itemized as follows:i.Entered upon the Plaintiffs’ property without consent.ii.Proceeded to menacingly and through varying tones of scare mongering and sabre rattling cut down Plaintiffs’ trees, crops and wantonly delivered livestock that grazed on the Plaintiffs’ food cropsiii.Has refused to vacate the Plaintiffs’ land and has igNored various demands to vacate and retorted that the Plaintiffs “will take me Nowhere.”iv.Has with impunity and menaces omiNously vowed to “deal” with the 1st Plaintiff to ensure she and her co-owners are “eliminated” from the Plaintiffs’ land parcel.v.Maliciously dumping bricks, stones, poles and sand on the Plaintiffs’ land and in furtherance of the impunity with which they operate upon the Plaintiffs’ land. The 1st Defendant has also flooded the Plaintiffs’ land with gangs of workers to complete a fencing and construction project with much alacrity and increased impunity.vi.Has during the pendency of this suit erected a fabulous hacienda on a Non-existent parcel of land claiming to own it.The 1st, 2nd and 3rd Defendants have conducted themselves with impunity malice and out of spite to the Plaintiffs intending by the said conduct to humiliate the Plaintiffs and injure their proper feelings of dignity and pride exposing them to hunger, self-shame destitution, landlessness, dependency obloquy and public odium. 8.Despite demands by the Plaintiffs the 1st, 2nd and 3rd Defendants have persisted in the said trespass and continue in their wrongful occupation of the suit land and have proceeded to build a statuesque palace on the land owned by the 1st and 2nd Plaintiffs without their authority. It is Now imperative that the said nuisance be removed from the land owned by the 1st and 2nd Plaintiffs which is 2622 and 4291. 9.By reason of the 1st, 2nd and 3rd Defendants joint and several nefarious activities on the Plaintiffs’ land, they have been unlawfully and unfairly deprived of the use and enjoyment of the said parcels of land causing the Plaintiffs to suffer loss and damage. 10.Particulars of the loss and damage have been pleaded in paragraph 8(i) to (v) as follows:i.Mature trees and crops on the land have been destroyed and a full evaluation is expected from the Forest and Agricultural officers.ii.The Defendants’ callous and the shameless occupation of the Plaintiffs’ land has exposed the said resources to physical and ecoNomic waste.iii.The Plaintiffs have been deprived of the use and quiet enjoyment of the suit land.iv.The 2nd Defendant’s use of the suit land is an eye sore and has therefore defaced and devalued the same.v.The 2nd Defendant’s misuse of the suit land has occasioned detriment to the 1st, 2nd and 3rd Plaintiffs where their own plans to develop their land became subservient to the speedy erection of a place on their land by the 1st, 2nd and 3rd Defendants. 11.By their actions, the 1st, 2nd and 3rd Defendants intend to continue and remain in wrongful occupation of the Plaintiffs’ land unless restrained by this HoNourable Court. They are illegal occupiers of the 1st and 2nd Plaintiffs land Bunyala/Bulemia/2622 and 4291 having No legal title and must be removed immediately and unconditionally from the 1st and 2nd Plaintiffs’ land. That the Green Card for the closed parcel of land No. Bunyala/Bulemia/833 has been mutated to reflect the 2nd Defendant’s fraudulently acquired land but excludes their names which is Not only irregular but also unprocedural. 12.By virtue of the 2nd Defendant’s trespass and wrongful occupation of portions of the suit land, she has misused, damaged, wasted, destroyed, polluted and/or degraded the same by reason of which the Plaintiffs have been deprived of the use and enjoyment of the suit land. 13.There has been constant confrontations between the Plaintiffs and the 2nd Defendant over the suit land. In the premises the 2nd Defendant canNot claim any colour of right to the fraudulently acquired parcel of land and should therefore Not allege that she enjoys or has ever enjoyed peaceful, uninterrupted and/or exclusive possession of the land parcel Bunyala/Bulemia/4209. 14.The particulars of trespass alleged as against the 2nd Defendant are pleaded in paragraph 16(a) to (f) as follows:a.Entered upon the Plaintiff’s property without the Plaintiff’s consent.b.Proceeded to menacingly and through varying tones of scare mongering and sabre rattling cut down the Plaintiffs’ trees, crops and wantonly delivered livestock that grazed on the Plaintiff’s food crops.c.Has refused to vacate the Plaintiffs land and had igNored various demands to vacate the land and has retorted that Plaintiffs “will take me Nowhere”.d.Has with impunity and menaces omiNously vowed to “deal” with the 1st Plaintiff to ensure she and her co-owners are “eliminated” from the Plaintiffs’ land.e.Maliciously dumping bricks, stones, poles, wire and sand on the Plaintiffs’ land and in furtherance of the impunity with which they operate upon the Plaintiff’s land. the 1st Defendant has also flooded the Plaintiffs land with gangs of workers to complete a fencing and construction project with much alacrity and increased impunity.f.Has during the pendency of this suit erected a fabulous hacienda on a Non-existent parcel of land claiming to own it. 15.There exists miscellaneous application No 9 of 2014 Rabecca -v- The County Land Surveyor Busia & 3 Others & Catherine Khabiria Ondatto & 2 Others As Interesed Partieswhich has a bearing on this suit. That matter was determined on 18th November 2020 when the Applicant withdrew the Petition and distinguished all the orders previously granted in the matter. The Plaintiffs aver that the sole consequential order is that title to Bunyala/Bulemia/4209 was cancelled which cancellation has a significant impact on the orders sought in this matter considering that the 1st, 2nd and 3rd Defendants have since been rendered illegal occupants of the 1st and 2nd Plaintiffs land parcels No. Bunyala/Bulemia/2262 and 4291. 16.Together with the further amended plaint, the Plaintiffs filed a list of documents dated 1st March 2021 in support of their case. The following documents are annexed thereto:1.Copy of a document dated 24th September 2015 signed by Hillary Juma Ouma, Ojiambo Ouma, Juma Stephen Ouma and Henerico Ouma authorizing the said Henerico Ouma (2nd Plaintiff) to represent them in this suit. I Notice that although the name of Pantanelo Ouma is on the list, he or she did Not sign the said letter.2.A copy of the title deed for the land parcel No. Bunyala/Bulemia/4291 registered in the names of the following persons:1.Heneriko Naluo Ouma2.Hillary Juma Juma Ouma3.Pantanelo Ouma4.Ojiambo Ouma and5.Juma Stephen Ouma3.Copy of official search for the land parcel No. Bunyala/Bulemia/4291 dated 2nd October 2016.4.Copy of Official Search for the land parcel No. Bunyala/Bulemia/2622 dated 28th October 2016.5.Copy of Order dated 8th November 2020 issued in BUSIA ELC MISC APPLICATION No 9 of 2014.6.Copy of photograph of a house under construction by the 1st, 2nd and 3rd Defendants.7.Copy of survey maps for land parcels No. Bunyala/Bulemia/4291 and 2622. 17.The Plaintiffs did Not file their statements Nor of their witnesses. 18.The 1st, 2nd and 3rd Defendants filed joint amended statements of defence as well as a counter-claim by the 2nd Defendant dated 25th February 2022. 19.They denied the allegation of fraud attributed to the 1st and 2nd Defendants and put them to strict proof thereof. They denied the allegations of trespass adding that they have been in quiet possession and exclusive possession of the land parcel No. Bunyala/Bulemia/4209 for a period of over 40 years. They denied the allegations of malice, loss, and damages referring to them as inconsequential and overtaken by events. Further, that the claim for compensation for damages is Not in accordance with the law and procedure. 20.The 1st, 2nd and 3rd Defendants also denied the contents of paragraph 4 of the further amended plaint and dispute the acreage of the suit land as stated in the plaint. They prayed that the Plaintiffs claim be dismissed with costs. 21.In her counter-claim against the Chief Land Registrarand The Director Of Survey, the 2nd Defendant, who is the Plaintiff in the said counter-claim has pleaded that during the Land Adjudication process, the land parcel No. Bunyala/Bulemia/833 was sub-divided into six (6) portions. However, the sub-division resulted in the creation of five (5) portions being land parcels No. Bunyala/Bulemia/2620 to 2624 i.e. five (5) portions and Not six (6) portions as intended. That made the 2nd Defendant occupy an un-titled land parcel measuring 0.76 Hectares. 22.The 2nd Defendant therefore seeks the following remedies in her counter-claim:1:Reopening of the Adjudication register for the land parcel No. Bunyala/Bulemia/833 and titling of the portion of land occupied by the 2nd Defendant measuring 0.76 Hectares2:Costs of the suit.The 1st Defendant filed a statement dated 22nd February 2022 in support of the 1st, 2nd and 3rd Defendants defence and counter-claim. He states therein that during the Land Adjudication process, the land parcel No. Bunyala/Bulemia/833 was to be shared amongst six (6) persons, each having an equal share. The land measured 0.76 Hectares and was occupied by the 2nd Defendant. That the portion occupied by the 2nd Defendant was Not titled. Their case therefore is that the Court do order for the Land Adjudication to be reopened so that the 2nd Defendant’s portion can be titled. 23.The 2nd Defendant is, as earlier stated deceased and therefore No statement was filed by her. The 3rd and 4th Defendants did Not also file any statements. 24.The 1st, 2nd and 3rd Defendants also filed a list of documents dated 22nd February 2022 to which are annexed the following documents:1.Copy of Register for the land parcel No. Bunyala/Bulemia/833.2.Copy of a letter dated 4th February 2012 addressed to the Land Registrar Busia by the 1st Defendant and 3 others requesting for an appeal to review the sub-division of land parcel No. Bunyala/Bulemia/833.3.Copy of a letter dated 13th May 2014 by the Land Registrar Busia Tom M. Chepkwesi addressed to whom it may concern with reference to “Untitled Parcel In Bunyala/Bulemia Registration Section.”4.Copy of a report dated 18th October 2013 by the Land Registrar Busia Tom M. Chepkwesi addressed to whom it may concern under ref “Untitled Parcel In Bunyala Bulemia Registration Section.” 25.The 3rd Plaintiff filed a defence to the counter-claim dated 5th June. She repeated the averments in the further amended plaint and joined issues with the 1st, 2nd and 3rd Defendants. She pleaded further that the counter-claim is fatally defective, bad in law and an abuse of the Court process by dint of the determination by the Court in Busia High Court Miscellaneous Application No 9 of 2014. The counter-claim should therefore be dismissed with costs. 26.On 29th September 2023, Mr. Siganga counsel for the 1st and 2nd Plaintiffs informed the Court that the suit against the 2nd Defendant had been withdrawn. 27.The hearing commenced before KaniaruJ on 28th March 2017 when Maureen Ongema Ondato (PW1) testified. She told the Court that she, her mother Anne Ongima Ondato and sisters Lilian Otoro Ondato and Catherine K. Ondato (PW3) own the land parcel No. Bunyala/Bulemia/2622 since 2012. The said land belonged to her deceased father. However, the Defendants have trespassed onto it and cut down the trees. She produced as their evidence the title deed to the said land. 28.Henerico Naluo Ouma(PW2) is the 2nd Plaintiff and in his oral testimony he produced as his evidence a copy of the title deed to the land parcel No. Bunyala/Bulemia/2623 which he said was owned jointly by himself and his brothers before being sub-divided to create the land parcels No. Bunyala/Bulemia/4106 and 4107. That he has lived on the land parcel No. Bunyala/Bulemia/2623 from 1974 to 1991 and the 1st Plaintiff is his neighbour. That the original land was No. Bunyala/Bulemia/833 before it was sub-divided to create parcels No. Bunyala/Bulemia/2620, 2621, 2622, 2623 and 2624 which are all equal. He states in his testimony that the Defendant claims to be living on the land parcels which strides parcels No. Bunyala/Bulemia/2622 and 2623. It is Not however clear from the proceedings of 18th February 2016 as to which of the Defendants he is referring to. For instance, at page 19 of the proceedings as recorded before Kaniaru J, he states:“The Defendant says that that parcel he is claiming is parcel No. 4209. The Defendant claims they got that portion through adverse possession in case No Misc. Application No 9/2014 which involved Rebecca Nerima and County Land Surveyor Busia and other parties.”Given that other than the Land Registrar there are three (3) other Defendants who could be the only ones who could be occupying the land in dispute, it would have helped for the witness to confirm which one of the three (3) Defendants he was referring to. I can only do the best with the record of proceedings as recorded earlier. I need also add that the proceedings commenced way back on 18th December 2014 before Tuiyott J (as he then was) and part of the record is torn. 29.Nonetheless the witness goes on to add that the parcel No. Bunyala/Bulemia/4209 does Not seem to have been derived from anywhere. However, the said parcel was created from the land parcel No. Bunyala/Bulemia/833 on 20th August 2014 as per the Mutation Form which he produced as evidence. He goes on to add however that the parcel No. Bunyala/Bulemia/833 ceased to exist in 1990 and so he was surprised to see from the mutation form that the parcel No. Bunyala/Bulemia/4209 was created from it on 20th August 2014 yet it had ceased to exist in 1990. 30.That a survey done in 2015 confirmed that the land parcels No. Bunyala/Bulemia/2622 and 2623 were both 2.44 Hectares in size. He produced the report of his surveyor one Wilson Ambonyoas part of his documentary exhibits. He stated that the Defendant (without specifying which one) has put up a house on his land which he wants this Court to order removed. 31.Catherine K. Ondatto(PW3) is the 1st Plaintiff. She too testified before Kaniaru J on 19th April 2016. She told the Court that she and her father were registered as the proprietors of the land parcel No. Bunyala/Bulemia/2622 in 2012. They found a woman called Rebecca living on the parcel No. Bunyala/Bulemia/2624. That Rebecca is the mother of the Defendant (she did Not say which Defendant) but as became clear during the trial, the said Rebecca was the mother of the 1st Defendant. The Defendant has invaded both land parcels No. Bunyala/Bulemia/2622 and 2623 where she is putting up a house. 32.Tom Chepkwesi (PW4) the then land registrar Busia also testified before Kaniaru J. In his testimony on 7th March 2018, he told the Court that the original land parcel No. Bunyala/Bulemia/833 measured 12.2 Hectares. It was later sub-divided on 26th June 1990 to create the land parcels No. Bunyala/Bulemia/2620, 2621, 2622, 2623 and 2624 all measuring 2.44 Hectares. That the said land parcel No. Bunyala/Bulemia/833 was later given the identity of Bunyala/Bulemia/4209 but this was only for convenience. He clarified that a parcel of land has to be indicated where it was derived from otherwise, the land parcel No. Bunyala/Bulemia/833 as it existed, did Not include the parcel No. Bunyala/Bulemia/4209. The only parcels created from Bunyala/Bulemia/833 included 2620. 33.The record shows that this witness was stepped down to enable him get some records. However, he was re-called on 21st October 2025 this time as a defence witness. I shall revert to his testimony later. 34.Moriza Ondato (PW5) is the 3rd Plaintiff and had initially joined as an Interested Party. She testified before me on 19th December 2023 when I took over the trial. She adopted as her evidence the witness statement dated 14th January 2019. 35.In that statement, she states that she is the registered proprietor of the land parcel No. Bunyala/Bulemia/2624 which arose out of the sub-division of the land parcel No. Bunyala/Bulemia/833 whose Register was closed on 26th June 1990. That on 18th September 2014, the 2nd Defendant acquired title to a purported parcel of land kNown as Bunyala/Bulemia/4209 on the premises that it was a result of the mutation of the original land parcel No. Bunyala/Bulemia/833 yet the two parcels of land both measure 0.76 Hectares. 36.The 3rd Plaintiff’s case is that the mutation which gave rise to the land parcel No. Bunyala/Bulemia/4209 was fraudulent. The particulars of fraud have been pleaded in paragraph 12 (i) to (vii) of her statement of claim and also in paragraph 6 of her witness statement. She adds in paragraph 7 of her statement that the Green Card of the closed parcel No. Bunyala/Bulemia/833 had been mutated to reflect that 2nd Defendant fraudulently acquired a parcel of land but her name had been excluded which is Not only irregular but also unprocedural. The 2nd Defendant has continued to trespass on the land parcel No. Bunyala/Bulemia/4209 thereby damaging, wasting, polluting and degrading the same and depriving the 3rd Plaintiff of the use of the same. 37.There have also been constant confrontations between her and the 2nd Defendant over the land parcel No. Bunyala/Bulemia/4209 over which the 2nd Defendant has No call of right to claim. The 2nd Defendant canNot claim that she has enjoyed un-interrupted and or exclusive possession of the land parcel No. Bunyala/Bulemia/4209. 38.Prior to being enjoined as the 3rd Plaintiff herein, the 3rd Plaintiff had filed her own statement of claim pursuant to her application dated 22nd October 2018 which was allowed with the consent of the parties before Kaniaru J on 3rd December 2018. Her claim was subsequently merged in the further amended plaint dated 16th February 2021 and filed on 3rd March 2021. I therefore need Not rehash her claim but only to reiterate that the same is hinged on trespass, damages and vacant possession of the parcel No. Bunyala/Bulemia/2624 as well as revocation of title to the land parcel No. Bunyala/Bulemia/4209. 39.I also heard the testimonies of the 1st Defendant LEONARD W. OBIMBIRA (DW2) and that of Tom Chepkwesi (DW3) the then Land Registrar Busia and who, as I stated earlier, had testified as Plaintiffs’ witness No 4 but did Not complete his evidence having been stepped down. I saw No reason to bar him from testifying since the parties were all comfortable with that. 40.The 1st Defendant adopted as his evidence the contents of his statement dated 22nd February 2022 contents of which I have already referred to earlier in this judgment. I need only add that during the plenary hearing the 1st Defendant confirmed that he is son to the 2nd Defendant who died in 2022 when this suit was in progress and that she had lived on the land in dispute for over 35 years. 41.Rose Amukasa Okwako (DW2) is the 3rd Defendant. She adopted as her evidence the contents of her statement dated 29th July 2022 in which she has averred, inter alia, that the 2nd Defendant was her mother-in-law and the registered proprietor of the land parcel No. Bunyala/Bulemia/4209. That when she got married to the 1st Defendant in 1998, she found the 2nd Defendant living on that land where she continues to live with her husband the 1st Defendant. The 2nd Defendant buried three (3) of her children and two (2) of her grandchildren on that land which she believes belongs to the 2nd Defendant. She too asked the Court to rely on the documents filed by the 1st Defendant as her documentary evidence. 42.Tom Chepkwesi DW3 was called as a witness for the defence. He testified that he is familiar with the case which involved the land parcel No. Bunyala/Bulemia/833 having handled it when working as the Land Registrar in Busia. He confirmed that he had prepared two reports in respect to the said land but the land is Not captured on the map and so he could Not determine the dispute between the parties over the said land which was however occupied by the 2nd Defendant. That the land parcel No. Bunyala/Bulemia/833 had been registered in the names of five (5) persons one of whom was Nerima Obimbira. He advised her to file a suit for adverse possession. The witness produced as part of the evidence his two reports dated 13th May 2014 and 18th October 2013. 43.Although the 3rd Defendant filed affidavit of one Gaudencia Sulali Lubia and Peter Ojiambo Maloba, they were Not called to testify on her behalf. 44.At the end of the plenary hearing, submissions were filed by Mr. Siganga instructed by the firm of Siganga & Company Advocates for the 1st and 2nd Plaintiffs, Mr Juma instructed by the firm of J. O. Juma & Company Advocates for the 3rd Plaintiff, Mr Jumba instructed by the firm of Eric Jumba & Company Advocates for the 1st and 2nd Defendants and by Mr. Ouma instructed by B. M. Ouma & Company Advocates for the 3rd Defendant. 45.I have considered the evidence by the parties as well as the submissions by the counsel. 46.The issues for my determination are whether the Plaintiffs are entitled to the remedies sought in their further amended plaint dated 16th February 2021 against the Defendants and which include, inter alia, that they are entitled to possession of the land parcels No. Bunyala/Bulemia/2622 and 4291 from which the 1st and 3rd Defendants should be evicted and directed to pay damages for trespass and the title issued to the 2nd Defendant for parcel No. Bunyala/Bulemia/4209 be cancelled etc. The Defendants deny all those claims and the 2nd Defendant by her counter-claim seeks the main order that the Land Adjudication Register be re-opened for the titling of the portion of land which she occupies. 47.Before delving into those issues which are clearly set out in the parties’ respective pleadings, I must address an issue regarding the Plaintiffs’ pleadings. 48.Order 2 Rule 3(1) of the Civil Procedure Rules provides that:“Subject to the provisions of this rule and rules 6, 7 and 8, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but Not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.” Emphasis mine 49.I have perused the further amended plaint herein. I must confess that I found the pleadings rather verbose, repetitive and touching on evidence which is expressly prohibited by the provisions of Order 2 Rule 3(1) of the Civil Procedure Rules as cited above. For instance, I did Not think it was necessary in the plaint to invoke the terms “scare-mongering and sober-rattling” (paragraph 6 II), the 1st Defendant has retorted that the Plaintiffs “will take me Nowhere” (paragraph 6 III), “erected a fabulous hacienda” (paragraph 6 IV, exposing the Plaintiffs to “hunger, self-shame, destitution, land issues, obloquy and public odium” (paragraph 7), the 1st and 3rd Defendants “have proceeded to build a statuesque palace on the land” (paragraph 7 A), the 2nd Plaintiff has “proceeded to menacingly and through varying tones of scarce mongering and sable-rattling out down the Plaintiffs’ trees” (paragraph 16(b)), the 2nd Defendant has “retorted that the Plaintiffs will take me Nowhere” (paragraph 16(c)) and also that the 2nd Defendant has “omiNously vowed to deal with” the 1st Plaintiff (paragraph 6(d)) and finally in paragraph 16(f), that the Defendants have “during the pendency of this suit erected a fabulous hacienda on a Non-existent parcel of land”. I believe some of these phrases would best be used in evidence rather than in a pleading. As the Court of Appeal advised in the case of William Koross -v- Hezekiah Kiptoo Kimue & 4 Others C.A. Civil Appeal No 223 of 2013 in reference to the drafting of a Memorandum of Appeal;“precise, concise and brief is wiser and better.”The same should apply in the crafting of other pleadings such as a plaint. Counsel should be guided by the above precedent and the law earlier set out. Failure to do so, however, is Not fatal to the Plaintiffs’ case. 50.Nonetheless, I must admit that my vocabulary has Now expanded. Thanks to counsel. 51.Having said so, I shall first consider the Plaintiffs’ case against the 2nd Defendant together with the 2nd Defendant’s counter-claim against the CHIEF LAND REGISTRAR and the DIRECTOR OF SURVEY who are named as the 1st and 2nd Defendants respectively in the counter-claim. 52.This suit was first filed by the 1st and 2nd Plaintiffs against the 1st Defendant. By the time the plaint was further amended on 16th February 2021, there were three (3) Plaintiffs and four (4) Defendants. It is common ground that the 2nd Defendant died on 15th June 2022 and the 1st and 3rd Defendants planned to inter her remains on the land parcels Bunyala/Bulemia/2622, 2624 and 4291 on 2nd July 2022. However, the Plaintiffs filed a Notice of Motion dated 20th June 2022 seeking to injunct the 1st and 3rd Defendants from doing so. By a ruling delivered by Omollo J on 4th August 2022, the 1st and 3rd Defendants were allowed to inter the remains of the 2nd Defendant on the said land but on the condition that should the Plaintiffs succeed in their claim, the 1st and 3rd Defendants would exhume the 2nd Defendant’s remains. 53.The 2nd Defendant having died on 15th June 2022, the law required that her legal representative be appointed within one year to represent her. Order 24 Rule 4(1) of the Civil Procedure Rules provides that:1.“Where one of two or more Defendants dies and the cause of action does Not survive or continue against the surviving Defendant or Defendants alone, or a sole Defendant or sole surviving Defendant dies and the cause of action survives or continues, the Court, on an application made in that behalf, shall cause the legal representative of the deceased Defendant to be made a party and shall proceed with the suit.”Sub rule (3) provides that:(3): “Where within one year No application is made under subrule (1), the suit shall abate as against the deceased Defendant.”Order 24 Rule 2 and 3(2) have similar provisions with regard to a deceased Plaintiff. Faced with that dilemma and bearing in mind that there was No legal representative appointed in place of the 2nd Defendant, Mr. Siganga did inform the Court on 25th September 2023 that:“The suit against the 2nd Defendant was withdrawn”Following the withdrawal of the suit against the deceased 2nd Defendant, with it also goes her counter-claim. This is because, the 2nd Defendant’s counter-claim was Not filed against the Plaintiff. It was filed against the Chief Land Registrar and the Director Of Survey and who are Not among the Plaintiffs in this case. They have therefore Not filed any claim against the 2nd Defendant. A counter-claim is defined in Black’s Law Dictionary 10Th Edition as follows:“A claim for relief asserted against an opposing party after an original claim has been made; esp, a Defendant’s claim in opposition to or as a set off against the Plaintiff’s claim.”In view of the fact that neither the Chief Land Registrar Nor the Director Of Surveyor their representative field any suit making any claim against the 2nd Defendant, there can be No basis upon which she can sustain any counter-claim against those two entities. 54.Secondly, a party who files a counter-claim becomes the Plaintiff. The 2nd Defendant therefore became the Plaintiff in respect of her counter-claim. She died on 15th June 2022. No person has been appointed as the legal representative to enable her claim to be prosecuted. Order 24 Rule 3(1) and (2) of the Civil Procedure Rules provides that:3(1)“Where one of two or more Plaintiffs dies and the cause of action does Not survive or continue to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the cause of action survives or continues, the Court, on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit.”2.“Where within one year No application is made under subrule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant, the Court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff.Provided the Court may, for good reason on application, extend the time.”Abatement of a suit will follow automatically where a sole Plaintiff dies if No application is made within one year following the Plaintiff’s death. The Defendant will only be required to apply for costs – see Rebecca Mijide Mungole & Another-V- Kenya Power & Lighting Company Ltd & 2 Others2017 KECA 544 KLR and also the case of Said Swailem Gheithan Saanum -v- Commissioner Of Lands & 5 Others C.A.Civil AppealNo 16 of 2015. 55.In this case therefore, Not only was the suit against the 2nd Defendant voluntarily withdrawn by the 1st and 2nd Plaintiffs on 29th September 2023 but the same abated by application of the law on 15th June 2023 which was a year following her demise on 15th June 2022 since No legal representative had been appointed to represent her Estate. And although the 1st Defendant is her son, he lacks the capacity to represent her Estate and can only testify as a witness in his own case. 56.In the circumstances therefore the only order I can make in respect to the suit against the 2nd Defendant and her counter-claim is to mark both as withdrawn and/or having abated by law. There shall be No orders as to costs. 57.With regard to the Plaintiff’s case as against the 1st and 3rd Defendants they have pleaded inter alia, that at all material time the 1st Plaintiff was the joint owner of the land parcel No. Bunyala/Bulemia/2622 measuring 2.43 Hectares, the 2nd Plaintiff was the owner of the land parcel No. Bunyala/Bulemia/2623 measuring 2.44 Hectares while the 3rd Plaintiff was the owner of the land parcel No. Bunyala/Bulemia/2624. All those titles arose from the mutation of the original land parcel No. Bunyala/Bulemia/833 which title was closed on 26th June 1990. Title No. Bunyala/Bulemia/2623 was further mutated to create land parcels No. Bunyala/Bulemia/4290 and 4291 registered in the name of the 2nd Plaintiff and parcels No. Bunyala/Bulemia/4292 and 4293. Prior to the amendment of the plaint, the 1st Defendant who was the only Defendant had filed his defence dated 29th May 2015 in which he had denied those averments and put the Plaintiff to strict proof thereof. In his subsequent statement dated 22nd February 2022 which he filed following the further amendment of the plaint, he stated that during the Land Adjudication process, the original land parcel No. Bunyala/Bulemia/833 was shared among six (6) persons and that his mother the 2nd Defendant was occupying a portion thereof measuring 0.76 Hectares but which was Not titled. On her part the 2nd Defendant who is the wife to the 1st Defendant and daughter-in-law the 2nd Defendant stated in her statement dated 20th July 2022 that the 2nd Defendant was the proprietor of the land parcel No. Bunyala/Bulemia/4209. She produced the title deed for the said parcel issued on 26th September 2014 indicating that it measures 0.76 Hectares and that it was created following the mutation of the original land parcel No. Bunyala/Bulemia 833. The Register for the land parcel No. Bunyala/Bulemia/833 shows that it was created on 20th October 1985 and was closed on 26th June 1990 to create the land parcels No. Bunyala/Bulemia/2620, 2621, 2622, 2623 and 2624. The Register shows an attempt to add parcel No 4209 on 26th June 1990 as a sixth (6th) portion. The title deed for the land parcel No. Bunyala/Bulemia/4209 registered in the name of the 2nd Defendant and whose interest the 1st and 3rd Defendant claim to prosecute canNot be a legal document because it purports to be a sub-division of the original land parcel No. Bunyala/Bulemia/833 on 26th September 2014 yet the title had been closed way back on 26th June 1990 as pleaded in paragraph 4(A) of the further amended plaint. Title No. Bunyala/Bulemia/4209 was clearly obtained fraudulently and must be revoked as sought by the Plaintiffs. The register for the original land parcel No. Bunyala/Bulemia/833 shows that it measured 12.2 Hectares. Out of it the following land parcels mutated:Parcel Size1.Bunyala/Bulemia/2620 - 2.44 Ha2.Bunyala/Bulemia/2621 - 2.44 Ha3.Bunyala/Bulemia/2622 - 2.43 Ha4.Bunyala/Bulemia/2623 - 2.44 Ha5.Bunyala/Bulemia/2624 - 2.44 HaTotal- 12.19 Ha 58.That was as per the evidence of Tom Chepkwesi (PW4) when he testified before Kaniaru J on 7th March 2018. It canNot therefore be lawful that a title for the land parcel No. Bunyala/Bulemia/4209 measuring 0.76 Hectares could have mutated from the land parcel Bunyala/Bulemia/833 unless the said land parcel increased in size. 59.Indeed, when he testified on 7th March 2018 Tom Chepkwesi (PW4) said of parcel No. Bunyala/Bulemia/833 that:“There was an acreage of 0.01 Ha for road the total comes to 12.2 Ha. That was the size of 833. The size of parcel No 4209 is 0.76 Ha. The size of parcel No 4209 was Not included in the size of parcel No 833. It was created from parcel 833 parcel No 4209 never affected the size of the earlier sub-divided parcels when it was created. When parcel No 833 was subdivided, the title was closed. Parcel No 4209 is stated to have been created from parcel No 833 for convenience only as a parcel of land has to be stated to be derived from aNother. Otherwise parcel No 833 as it earlier existed did Not include parcel No 4209.” Emphasis mine.It can only mean therefore, as pleaded by the Plaintiffs in paragraphs 14, 15 and 16 of the amended plaint, that the land parcel No. Bunyala/Bulemia/4209 which the 1st, 2nd and 3rd Defendants claim to occupy and possess is in fact the land parcels No. Bunyala/Bulemia/2622 and 4291 belonging to the 1st and 2nd Plaintiffs as well as others jointly and on which parcels of land the 1st, 2nd and 3rd Defendants trespassed and caused damage thereon including constructing structures. The 1st, 2nd and 3rd Defendants canNot be in possession of the land parcel No. Bunyala/Bulemia/4209 which does Not exist in law. Counsel for the 1st and 2nd Plaintiffs is correct therefore when he submits that his clients have legitimate titles over the land parcels No. Bunyala/Bulemia/2622 and 4291. 60.It is also clear from the two reports prepared by the Land Registrar MR Tom Chepkwesi that the 2nd Defendant, through whom the 1st and 3rd Defendants claim, did Not kNow the particulars of the land parcel which she occupied. The said land was given to her by her brother-in-law after she had been displaced from her original land in Budalangi from where she had vacated due to floods. 61.In the report dated 13th May 2014 the said Land Registrar makes the following remarks in the last paragraph:“The Land Register for parcel Bunyala/Bulemia/833 had the following names as proprietors in the registration.Olinya AbiAlberto AbiDismas Abi 1/6 Share eachOuma AbiJuma OumaThe question that begs an answer is why 1/6 share each when the names appearing are 5? Was one name omitted? Could that one name be that of Rebeca Nerima? This could be answered if I got an adjudication register which for Now is missing. I find it difficult to fix a boundary for the complainant under the circumstances and therefore refer her to file a petition for registration by adverse possession.”In the report dated 18th October 2013, the same witness made the same comments. What I gather from the evidence of the Land Registrar Tom Chepkwesi together with his reports is that someone in the Land Registry Busia was faced with a dilemma due to the fact that the 2nd Defendant was living on a parcel of land which was Not titled. A decision was therefore made to create a parcel for her and she was also advised to file a suit for adverse possession which however came to Nought. As is Now clear, the title No. Bunyala/Bulemia/4209 which was created for her was done so fraudulently. It is null and void and the 1st and 3rd Defendants who are claiming it on her behalf have No case. Indeed, in his submissions, MR OUMA counsel for the 3rd Defendant has stated at page 2 that:“The 2nd Defendant took possession of the portion of L.R Bunyala/Bulemia/833 in 1976 having been given by her brother-in-law the late RAPHAEL DWARIRE MALOBA and she took possession until she met her death in 2022 and left her family in occupation todate.The Land Registrar with the County Surveyor went to the suit land and discovered that there was untitled portion of land where the 2nd Defendant and family had a home and she stayed there since 1976 and it was Not titled todate and he advised the 2nd Defendant and family to file suit for adverse possession.The 2nd Defendant moved the Court through a miscellaneous application No 9 of 2014 wherein an order was obtained and the untitled land was through that Court order from the Miscellaneous No 9 of 2014 allocated a new number kNown as L.R No. Bunyala/Bulemia/4209.” 62.On his part Mr. Siganga counsel for the 1st and 2nd Plaintiffs submitted as follows in paragraphs 41 and 42 of his submissions:41:“On the issue that the deceased Rabecca Nerima had lived on the suit land parcel since 1976 to the time of her death in June 2022, it is Note worthy that the creation of Bunyala/Bulemia/4209 was through a miscellaneous application being Busia Miscellaneous ApplicationNo 9 of 2014 Rebecca Nerima Obimbiraversus The County Land Surveyor Busia which was withdrawn by the Applicant on November 18th 2020. The deceased’s title was extinguished and No evidence was produced by the Defendants that the land parcel exists in the survey records for the area.42:“The burial of a person on land and developments on such parcel does Not confer title over the property.” 63.On his part Mr Jumacounsel for the 3rd Plaintiff substituted as follows in paragraphs 17, 18, 25, 26 and 27 of his submissions:17:“The 2nd Defendant obtained title to a purported land parcel kNown as No. Bunyala/Bulemia/4209 on September 18, 2014 claiming to be a mutation of plot number Bunyala/Bulemia/833. This was a resultant to a Busia Miscellaneous Application No 9 of 2014 Rebecca Nerima Obimbira versus The County Land Surveyor Busia and 3 others and Catherine Khabiria Ondatto & 2 Others as Interested Parties which was eventually withdrawn by the Applicant’s advocate and all consequent orders were vacated including the title deed to Bunyala/Bulemia/4209”18:“In the course of proceedings the 2nd Defendant Rebecca NERIMA OBIMBIRA passed away in late June 2022 as the suit against her abated and she was buried in the 3rd Plaintiff’s land.”25:“During the hearing the 3rd Plaintiff testified and produced exhibit 1 (copy of title deed) to show she was registered owner of suit parcel No. Bunyala/Bulemia/2624”26:“She further testified that the mutation forms for the parcel of land Bunyala/Bulemia/833 measures 0.76 Ha while the mutation of Bunyala/Bulemia/4209 belonging to the 2nd Defendant equally measures 0.76 Ha. This alleged mutation which gave rise to Bunyala/Bulemia/4209 was indisputably fraudulent.”27:“As a result of the illegal and fraudulent mutation by the 4th Defendant, a parcel of land to wit Bunyala/Bulemia/4209 was allocated to 2nd Defendant which did Not initially exist on the ground thereby hiving off part of the 3rd Plaintiff’s parcel of land.”I must disabuse counsel for the 3rd Defendant of the Notion that any Court could have made an order creating any parcel of land leave alone the land parcel No. Bunyala/Bulemia/4209. That was a creation of the 4th Defendant and it was done illegally and fraudulently by interfering with the Plaintiff’s land. This Court must revoke it. 64.The Plaintiffs are also entitled to General Damages for trespass because the land which they occupy and have developed in the belief that it is the 2nd Defendant’s land purportedly kNown as Bunyala/Bulemia/4209 is infact land belonging to the Plaintiffs. In assessing those damages, I am guided by the fact that trespass is actionable per se and does Not require proof of actual damage - Park Towers Ltd -V- John Mithamo Njika & Others 2014 eKLR. See also Kenya Power & Lighting Company Ltd -V- Fleetwood Enterprises Ltd 2017 KECA 358 KLR. All that the Plaintiffs were required to prove, and which they have done was the illegal entry upon their land. Taking into account that the title to the land parcel No. Bunyala/Bulemia/4209 was illegally and fraudulently created by the 4th Defendant who should have kNown better, I find that a sum of Kshs.100,000 will meet the interests of justice in the circumstance of this case. 65.Having made an award of General Damages the Plaintiffs are Not entitled to the award of mesne profits. Such a claim is also in the nature of special damages which must be specifically pleaded and proved. That was Not done in this case and both those claims canNot be awarded together – Kenya Hotel Properties Ltd -V- Willesden Investments Ltd 2009 KECA 439 KLR [C.A. Civil Appeal No 149 of 2007]. That claim is declined. 66.An order of permanent injunction is issued restraining the 1st and 3rd Defendants from continuing to remain on the land parcels No. Bunyala/Bulemia/2622 and 4291 whether by themselves, their families, agents or servants. They are trespassers thereon and must give way to the Plaintiffs. 67.Having considered all the evidence herein this Court makes the following disposal orders:1.The suit against the 2nd Defendant and her counter claim are marked as withdrawn/abated with No orders as to costs.2.The title to the land parcel No. Bunyala/Bulemia/4209 is revoked.3.A declaration is issued that the Plaintiffs are entitled to exclusive and un-impeded right of possession of the land parcels No. Bunyala/Bulemia/2622 and 4291.4.An order of permanent injunction restraining the 1st and 3rd Defendants whether by themselves, their servants or agents or any persons claiming through them from continuing in occupation of the land parcels No. Bunyala/Bulemia/2622 and 4291.5.The 1st and 3rd Defendants and their servants, agents or any other persons claiming through them must within 90 days of this judgment give vacant possession of the land parcels No. Bunyala/Bulemia/2622 and 4291 and remove any structures or developments thereon or be evicted therefrom in accordance with the law.6.The Plaintiffs are entitled to General Damages of Kshs.100,000 for trespass.7.The claim for mesne profit is declined.8.The 1st, 3rd and 4th Defendants shall meet the Plaintiffs costs. BOAZ N. OLAOJUDGE16TH JULY 2026Judgment dated, signed and delivered by way of electronic mail on this 16th day of July 2026 with Notice to the parties.Right of AppealBOAZ N. OLAOJUDGE