https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4302

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC NO 005 OF 2020** **PAUL KIMONDIU SONGOLO………………………………..PLAINTIFF** **-VERSUS** **THE COUNTY GOVERNMENT OF MAKUENI.......…….....DEFENDANT** **JUDGMENT** **Introduction** 1. By a plaint dated 30th January, 2020, the Plaintiff sought the following reliefs against the Defendant. 2. **An order of permanent injunction restraining the Defendants, their agents, servants, invitees, and/or licencees from trespassing on, encroaching on, constructing anything on and/or in any other manner whatsoever from interfering with land parcel No. Makueni/Unoa/1396.** 3. **An eviction and/or a demolition order against the Defendant to vacate the Plaintiffs land, to be supervised by the OCS Makueni Police Station.** 4. **Cost of this suit and interest.** 5. **Any other relief that this honourable court deems fit to grant.** 6. The Defendant filed a counterclaim dated 30th January, 2023 in which he sought the following reliefs: 7. **A declaration that the suit property belongs to the Plaintiff.** 8. **An order for the cancellation of the title that was issued to the Plaintiff in respect of the suit property and for the issuance of a new title for the said parcel of land in favour of the County Government of Makueni.** 9. **Damages for loss of use.** 10. **Costs.** 11. **Any other or further relief as this court may deem fit and just to grant.** **Plaintiff’s Case** 1. The Plaintiff testified that he is the registered owner of LR No. Makueni/Unoa/1396 which was registered in his name on 28th June, 2018 by way of transmission (suit property). The suit property belonged to his deceased wife Annah Nthoki Kimondiu. He obtained grant of letters of administration in respect of his wife’s estate. The grant was confirmed on 19th April, 2018 after which he became the registered owner of the suit property by way of transmission. 2. The Plaintiff stated that his deceased wife had purchased the suit property from Joseph Mutuku Masilia. On 26th January, 2020, he was on routine check of the suit property when he found construction going on. On inquiring as to who was constructing, he was told that it was the Defendant who was putting up a dumping site for the upcoming Makueni People’s Park (Now known as Wote Green Park) which is opposite the suit property. 3. He states that the Defendant has no legal basis for taking over the suit property which belongs to him. It is on this basis that he is seeking the relief sought herein. **Defendant’s Case** 1. The Defendant presented its case through Dominic Muthama Muange the County Land Surveyor. He testified that the origin of the suit property is LR No. Makueni/Unoa/527 which belonged to Peter Mutuku Masilia. This property was subdivided into several parcels among them LR No. Makueni/Unoa/1395 which was sold to Wote Town Council. The mutations were completed on 16th December, 2001 by the Land Registrar. 2. The witness stated that the suit property was illegally created out of land parcel No. Makueni/Unoa/1395 which had been set aside for construction of a stadium. He went on to state that though the mutations were closed on 16th December 2001, the suit property among several others emerged in a document dated 16th April, 2002 which was said to be an annexture of the mutation which had been closed on 16th December, 2001. He stated that titles arising from that mutation which include the suit property were directly issued in the names of the recipients contrary to the normal practice that all the subdivisions ought to have come out in the name of the original owner after which he could transfer the subdivisions to the owners upon obtaining the requisite consent of the Land Control Board. 3. He further testified that the mutation which resulted in the suit property was not signed by the person who prepared it. He concluded that the creation of the suit property was illegal. **Parties Submissions** 1. The parties were directed to file written submissions. The Plaintiff filed his submission dated 13th May, 2026. As at the time of writing this judgment on 7th July, 2026, the Defendant had had not filed submissions. 2. The Plaintiff submitted that as a registered owner, his title cannot be impeached unless it is done under Section 26 of the Land Registration Act. He further submitted that the Defendant’s act of constructing a dumping site on his land amounts to trespass and that the Defendant should be evicted from the suit property. He relied on case of **Nyamboki –vs- The Nairobi City County** **& 251 Others (2023) eKLR** where it was held as follows: **“145. Furthermore, the moment the registered proprietor has neither authorized nor sanctioned the impugned entry upon and/or occupation of the suit property, then any occupation thereof, constitutes violation of and/or infringement of the rights of the registered owner.** **146. Consequently, in such a situation, the registered owner of the property would no doubt, be entitled to procure and obtain an order of eviction against the trespasser (s).** **148. To summarize, it is my finding and holding that by virtue of being the registered owner of the suit property, the Plaintiff is entitled to exclusive possession, occupation and use thereof.”** **Analysis and Determination** 1. I have carefully considered the evidence adduced by the Plaintiff as well as the evidence adduced by the Defendant. I have also considered the submissions by the Plaintiff. The issues which emerge for determination are firstly whether the suit property was lawfully created. Secondly, whether the suit property formed part of what originally the property of Wote County Council which is the predecessor of the Defendant. Thirdly, whether the Plaintiff and Defendant are entitled to their respective claims. 2. I will deal with issue number one and two together. The documents before court show that what is now known as Green Park was originally reserved for a stadium. This is according to a proposed replanning of stadium which was prepared on 9th March, 1998. In 2001 a mutation for subdivision of what was LR No. Makueni/Unoa/527 was prepared. This mutation introduced eight (8) smaller plots within what had been reserved for a stadium. These plots ranged from Makueni/Unoa/1396 to 1403. 3. The mutation of 2001 was illegally done as the eight (8) plots which include the suit property were curved out of land reserved for a stadium. The land having been reserved for a stadium, there was no land available which would have been curved out of that land. 4. The original land that is Makueni/Unoa/527 was freehold land. There was no evidence adduced to show that the consent of the Land Control Board was obtained to subdivide the land. The Plaintiff was registered as owner of the suit property through transmission. A copy of green card which the Plaintiff produced shows that the Plaintiff’s wife was registered as owner of the suit property on 8th February, 2002. The registration was based on a sale. There was no sale agreement between Joseph Mutuku Masilia and the Plaintiff’s wife. There was no transfer produced. 5. In the case of **Munyu Maina –vs- Hiram Gathiha Maina (2009) eKLR**, it was held that where a proprietor’s root of title is challenged, it is not enough for the proprietor to dangle title as proof of ownership. He must show that the title was lawfully and procedurally obtained. 6. In the instant case, the Plaintiff while being cross examined stated that he did not have a copy of the agreement between his deceased wife and Joseph Mutuku Masilia. He did not even bother to produce a copy of transfer of the suit property from Joseph Mutuku Masilia to his deceased wife. This being the case, there was no lawful title which was capable of being transmitted to him. 7. Among the eight plots curved out the land originally reserved for a stadium, two plots were registered in the name of Joseph Mutuku Masilia. These are plot numbers Makueni/Unoa/1400 and 1401. Joseph Mutuku Masilia was the owner of Makueni/Unoa/527 which resulted in the illegal eight (8) subdivisions. According to the survey report of Peter Ndonye which was produced by the Defendant, the said Joseph Mutuku Masilia denounced the two plots in his name. He denied any knowledge of the eight (8) plots curved from land meant for the stadium. 8. The court issued an order for maintenance of the status quo upon the Plaintiff applying for injunction. The order of status quo was given in a ruling delivered on 23rd December, 2020. Despite these orders being in force until the suit is determined, a search which the Defendant conducted on 20th June, 2024 shows that the suit property has changed hands to Peter Nthuli Nuulu who was registered as owner on 5th September, 2024. This was after the Plaintiff had testified and closed his case on 27th February, 2024. This is contrary to the doctrine of lis pendens. I therefore find that the Plaintiff’s deceased wife obtained title to the suit property illegally and therefore there was nothing to be transmitted to the Plaintiff upon her demise. 9. On the third issue, this court having found that the title to the suit property was unlawfully obtained, the Plaintiff’s claim falls flat and none of the prayers can be granted to the Plaintiff. On the other hand, the Defendant has demonstrated that the land from where the suit property was curved had been reserved for a stadium which the Defendant later changed to Wote Green Park. The evidence which was adduced by the Plaintiff is that he has never utilized the suit property. There is therefore no basis for grant of damages for loss of use as prayed. **Disposition** 1. The Plaintiff’s suit is dismissed with costs to the Defendant. The Plaintiff by way of counterclaim has proved its case on a balance of probabilities. I enter judgement for the Plaintiff in the counterclaim as follows: 2. **A declaration that the suit property belongs to the Plaintiff in the counterclaim.** 3. **An order is hereby given cancelling title in respect of Makueni/Unoa/1396 issued to the Plaintiff in the main suit or any subsequent transfer to any other individual and a new title to be issued to the name of the Defendant in the counterclaim.** 4. **The Plaintiff in the counterclaim shall have costs of the suit.** **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 13TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Kioko for Defendant. Mr. Muendo for Plaintiff Court assistants – Kilonzo & Musyoki