https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4777

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC CASE NO. 61 OF 2017** **SAMWEL OKECH ONYANGO…………………………………PLAINTIFF** **VERSUS** **THE OCS. AWENDO POLICE STATION……………..1ST DEFENDANT** **THE O.C.P.D. AWENDO POLICE STATION……...2ND DEFENDANT** **THE HON. ATTORNEY GENERAL…………………….3RD DEFENDANT** **JUDGMENT** **INRODUCTION AND PLEADINGS** 1. It has been restated time and again by the Supreme Court, the Court of Appeal, several Judges of this Court, including myself, and many subordinate courts that the root of a title of any property is of fundamental importance to any claim by an alleged owner thereof. Let it go on record once more that for a party to successfully vouch for a title he/she/it claims to own, he/she/it must demonstrate that the root that “grew” or supports the title ought to be genuine and of the right and lawful foundation. Otherwise such a title is a nullity, hollow and fruitless, and gives both bitter and poisonous fruits to both the owner and society no matter how long one has/ holds it because such “*foundationless”* ownership documents have lain the props of pilferage of our country’s public resources, deprived of private individuals their rightful resources and possessions, and often engendered corruption and social strive. 2. With the above in mind, I now turn to the competing claims herein: as contained in the Plaint and Defence and Counterclaim and subsequent pleadings. Through a Plaint dated 14th April 2014, the Plaintiff sued the Defendants seeking the following reliefs, as listed verbatim; 3. **Declaration that the plaintiff is the registered and/or lawful owner of LR. NO. SOUTH SAKWA/WAWARE/1084.** 4. **Permanent injunction restraining the 1st and 2nd defendants either by themselves, agents, servants and/or any one claiming under the said defendants from entering upon, re-entering, trespassing onto, cultivating, alienating, wasting, building structures (on), interfering with and/or in any other manner dealing with the suit land, that is LR. NO. SOUTH SAKWA/WAWARE/1084 and/or any portion thereof.** 5. **General damages for trespass.** 6. **Interest on (iv) hereof at court rates.** 7. **Costs of this suit to be borne by the defendant.** 8. **Such further and/or other relief as the Honorable court may deem fit and expedient so to grant.** 9. The Plaintiff pleaded that the parcel of land known as South Sakwa/Waware/1084 was registered in his names on 7th February 2012. Further, it originated from parcel No. South Sakwa/Waware/925 which was registered in the name of one Risper Auma James. That she sub divided it on 7th December 2006. She entered into a sale agreement with the Plaintiff subsequent to which the suit land was then transferred and registered in his name, and he took possession of it. 10. The Plaintiff averred further that on 1st April 2014, the 1st and 2nd Defendants illegally entered his land. They began to cultivate it, depriving him of his right to possession and use of the same. He then instituted the present suit seeking the aforementioned reliefs. 11. The defendants entered Appearance and filed an Amended Statement of Defence and Counterclaim on 18th March 2021. In it they contended that land parcel L.R. No. South Sakwa/Waware/155 had been acquired by the Government, and the Plaintiff had fraudulently obtained the suit property. They sought the dismissal of the Plaintiff’s suit and the following reliefs in the Counterclaim; 12. **A declaration that LR. NO. SOUTH SAKWA/WAWARE/155 was legally acquired by the Government of Kenya.** 13. **A declaration that the 1st defendant in the counterclaim is a trespasser on LR. NO. SOUTH SAKWA/WAWARE/155.** 14. **An order of eviction do issue against the 1st defendant from land known as LR. NO. SOUTH SAKWA/WAWARE/155.** 15. **An order revoking the defendant alleged title to LR. NO. SOUTH SAKWA/WAWARE/1084.** 16. **Permanent injunction restraining the 1st defendant in the counterclaim either by himself, through his agents or servants from interfering in any way with LR. NO. SOUTH SAKWA/WAWARE/1084.** 17. **General damages.** 18. The Defendant to the Counterclaim then filed a Reply to the Amended Statement of Defence and Counterclaim whereby he generally denied its contents. 19. It is worth stating at this point that this suit was initially Kisii ELC No. 151 OF 2014. It was later transferred to this Court and registered Migori as ELCC No. 61 of 2017 which is the instant suit. 20. The matter then proceeded for hearing. On his part the plaintiff called three (3) witnesses in support of his case whereas the defendants called two (2). **EVIDENCE** 1. **PW1** was **Samwel Oketch Onyango**, the Plaintiff. He testified that he knew the late Risper Auma James in January 2011. She sold to him land parcel No. South Sakwa/Waware/ 1084, approximately 2.59 hectares which was derived from land parcel No. South Sakwa/Waware/925. As part of due diligence, Risper Auma James gave him a copy of the **Judgment in Kisumu HCCC No. 417 of 1999**, which was between **James Matu -vs- Sony Out Growers Co. Ltd and Anor** which was delivered on 26th November 2004. He produced herein the decree issued therein pursuant to the Judgment as P Exhibit 3. Further, that he was shown a copy of title deed to the suit land. It was given/ issued on 5th March 2007. He produced it as PExhibit 4. 2. He stated that on 5th May 2011 he entered into a sale agreement with Risper Auma in respect of the land. He obtained a title deed issued on 7th July 2012. The claimant stated further that on 31st March 2014, when he sought to fence the suit land the 1st and 2nd defendants repulsed his agents. He, additionally, stated that the green card for L.R. No. South Sakwa/Waware/925 showed that James Matu Odoyo was the proprietor and the name of Awendo Police Station does not feature on it. 3. During cross examination, the witness stated that he purchased parcel No. 1084 and filed the sale Agreement thereto. That a transfer was prepared and a consent to transfer obtained but he did not file them in court. The purchase price was Kshs. 900,000/=. He had paid the entire amount. He stated further that he was not aware that the land was acquired by Government, and it is the court that confirmed the land belonged to Risper. 4. **PW2** was **Peter Wanjala**, the Surveyor, Migori County who prepared a report on Parcel Nos. South Sakwa/Waware/1549 and 1084 pursuant to an Order of this court dated 31st July 2018. He testified that upon visiting the site on 20th February 2020 and carrying out a survey of the parcels, he found that parcel No. 1549 was non-existent. Further, that the site in question (suit land) was opposite the Sub-County Hospital. He added that there was need to do re-planning of the Town Plan because the boundaries, as per the Land Adjudication plans, had since changed and it was impossible to re-erect the boundaries. He stated that nevertheless he carried out the survey within the vicinity of the 2.6 Ha parcel. He added that if the land was compulsorily acquired the process was not exhaustively done. 5. During cross examination, he stated that he was aware that in 1978 the Government acquired the area around Sakwa/Waware. Further, he had the green card for parcel 1084. It shows it resulted from a subdivision of parcel No. 925. The subdivision was done in 2007. That Parcel 925 is itself was a subdivision of parcel No. 652 and it was subdivided in 1998. The subdivision was carried out in 1975 from parcel No. L.R. No. South Sakwa/Waware/155. The Government had acquired parcel No. 155 on 30th May 1976 and a caution placed on the land 30th May 1977, and there was no entry to show that the caution was removed. 6. His further evidence was that the Gazette Notice dated 8th October 1976 lists the parcels that the Government wanted to acquire. It included South Sakwa/Waware/155 whose original owner was Mr. Odoyo Ojambi whose name appears in the Green Card. There was also another Gazette Notice for intention to acquire 6.0 Ha of South Sakwa/Waware/155. The total area acquired was 21.5 hectares. Further, the owner was paid 52,240 Kshs. He urged that he did not have this information when he was preparing the report but from the records and going by the payment made the said acquisition was actualized. 7. After the acquisition of the land there was no need to retain the said South Sakwa/Waware/155 because subsequent subdivisions would be questionable but not legal. Parcel 1084 was a subdivision of South Sakwa/Waware/155 that was already acquired, and the surveyor (who did the subdivision) assumed the land was still in existence and the said information was misleading. 8. **PW3** was **Philip Makini** the Land Registrar, Migori Land Registry. He stated that he visited the site and generated a report that was filed in court. The purpose of the visit and report was to determine the boundary between land parcels South Sakwa/Waware/1084 and 1549 pursuant to an Order of this court and to find out if Awendo Police Station was built on both land parcels. He interviewed the owner of the land and the Sub-County Police Commander. He was informed that the land was acquired by the government through compulsory acquisition. He was shown documents relating to the same. The plaintiff’s agreement stated that he bought his land from one Risper, and he stated he did due diligence and didn’t know anything about the compulsory acquisition. 9. His visit found that the Police Station is built on the sub-divisions from L.R. No. South Sakwa/Waware/155. He found that land parcel 1549 does not exist in the register. Part of the Police Station was on the parcel number 1084, belonging to Samwel Okech Onyango. He produced the Report as PExhibit 12. 10. During cross examination he stated that 1084 was created from South Sakwa/Waware/925 in 2007 when subdivision was done and South Sakwa/Waware/925 was created on 4th February 1998, as a sub-division from parcel 652. That the register for 652 was opened on 10th December 1976 and was created after sub-division of parcel/155 and it is the mother title as it was from the Adjudication exercise. That the government had acquired the original parcel as per the Adjudication records and its interest was registered in entries Nos. 3 and 4 which are dated 30th May 1977. Further, the government of Kenya claimed purchasers’ interest on parcel number LR NO. South Sakwa/Waware/155 for an area measuring 12.94 Ha and he had not seen any removal of the caution. 11. He confirmed that the last entry No. 5 had not been dated nor signed. That there was a Gazette Notice was dated 24th December 1976 and a 2nd Gazette Notice where the government wanted to acquire 6.0 Ha and added to the previous acquired. The Government acquired a total of 21.5 Ha and from the record and the register, the suit land was not available for sub-division, and any subsequent entry after the acquisition is invalid. 12. With that the Plaintiff closed his case. 13. **DW1** was **John Omollo Omollo**, a retired senior chief of East Sakwa Location, Waware Sub Location. He stated that he was a resident of the area. Further, by the time the government was acquiring the land he was a teacher at Mulo Primary School. That there were two notices of compulsory acquisition that were issued with the first on 8th October 1976. That the suit relates to parcel number 1084. The register of the parcel was opened on 2nd May 2007. It created out of parcel number LR No. South Sakwa/Waware/925. The register was opened on 4th February 1998. It was a sub division of parcel no. 652 and was registered on 5th April 1975. It originated from parcel number LR NO. South Sakwa/Waware/155 which was the original mother title. Its register was opened on 5th April 1975 and the 1st registered owner was Odoyo Ojambi. 14. DW1 stated further that on 30th May 1977 a caution was registered on the land claiming interest in the land. There was a gazette notice dated 8th October 1977 for acquisition of 15.5 Ha from parcel LR NO. South Sakwa/Waware/155. There was a 2nd gazette notice of 24th December 1976 for acquisition of LR No. South Sakwa/Waware/155 from Odoyo Ojambi for 6.0 Ha. The suit land was thus acquired by the government through the two gazette notices. He further stated that he knew that Odoyo Ojambi was paid through Cheque as he helped him to fill the payment forms for the cheque. He confirmed that they were all compensated. He owned parcel South Sakwa/Waware/ 92 and Odoyo Ojambi was paid Kshs. 52,240/=. 15. He stated that the land was transferred fraudulently, sold and sub-divided, and it was a problem which he solved as a chief. Further, that Risper Auma has never owned any land in the area and he never found her name on any parcel that she could sell to anybody. 16. **DW2** was **Daniel Ambunya** who stated that LR No. South Sakwa/Waware/155 was acquired by the Government and part given to Awendo Police Station. It was to be neighboured by the NCPD, Awendo Hospital and KMTC, the Catholic Church and Sony Sugar Secondary School which are all public utilities. On handing over of the station, he was given the file on the Police Station showing there was acquisition of its land. He was aware that the suit (over the acquisition of the land) went all the way to the Supreme Court. The Supreme Court found that the land was properly compulsorily acquired. He testified that on where the Police Station was situated is government land. He prayed that the land to revert back to the Station. 17. That was the close of the Defendant’s case. 18. The parties were directed to file submissions. The plaintiff filed submissions dated 3rd October 2025 whereas the Defendants filed theirs dated 7th October 2025. **The Plaintiff’s Submissions** 1. Learned counsel abridged the facts underlying the case and identified the issues for determination. He urged that the first issue for determination was whether the Defendants/Counter-Claimers had the locus to lodge the Counter-Claim. He pointed out the amended statement of defence and counterclaim and particularly the allegation of trespass and urged that the Defendants never placed any documents in Court to show the nexus between the suit property and LR No. South Sakwa/Waware/1549 That in regards to the claim of fraud, only the Permanent Secretary for Ministry Lands, Public Works, Housing and Urban Development could lodge a Counter-Claim’ and not the Defendants. Counsel posited that they failed to describe on what capacity were they bringing the Counter-Claim against the Plaintiff. He emphasized that the Defendants had no title to defend, neither did they have the locus standi to lodge the Counter-Claim, placing reliance on the Supreme Court case of **Torino Enterprises Limited v Attorney General [2023] KESC 79 [KLR]**. 2. Counsel urged that the defendants had no ownership over the said land as an Allotment Letter could not pass the title until same was perfected. Other than the Counter-Claim being statute barred, the Defendants herein had no registerable rights over and in respect of the said property and/or the suit property thus could not lodge a Counter-Claim. He urged that LR No. South Sakwa/Waware/155 had long been sub-divided hence did not exist as at the time this suit was lodged in the year 2014. 3. Counsel contended that the claim was statute barred as the suit was lodged in the year 2014 with the Defendants lodging their Counter-Claim on 18th March 2021, approximately 7 years later and therefore they could not lodge a claim of fraud against the Plaintiff and the other Defendants in the Counter-Claim. Reliance was placed on the case of Javed Iqbal Abdul Rahman & Anor vs Bernard Alfred Wekesa Sambu & Anor CACA NO. 11 OF 2001. 4. Another issue counsel identified for determination was whether the decision vide **Town Council of Awendo vs Nelson Onyango & 13 Others; Abdul Malik Mohammed & 178 Others (Interested Parties) [2019] eKLR** discussed the legality of the Plaintiff’s title to the suit property. He urged that during the hearing of the instant suit, the Defendants alluded to the fact that the suit property had been acquired illegally basing their arguments on the Supreme Court decision. A Notice of Preliminary Objection had been lodged by the Defendants alleging that the suit property had been compulsorily acquired and the Supreme Court Judgement confirmed as much. The Notice of Preliminary Objection was dismissed by the Court hence the suit herein proceeded. 5. Counsel submitted that it is to be noted that the suit herein was determined in the year 2019 after the Plaintiff had acquired his property and the issue in question was whether the Respondents had reversionary interest in unutilized portions of land that were compulsorily acquired by the Government. The Plaintiff herein was not a party to the said proceedings and the Gazette Notices number 2996 and 3737 of 1976 came to play in the said Petition. The Court held that the Respondents had no reversionary interest on the parcels of land listed in the Gazette Notices. The Supreme Court also held that the parcels of land listed in the Gazette Notices had been compulsorily acquired and vested in the Government of Kenya. Counsel posed the question as to whether the original suit Property was in existence in the year 1976 when the Gazette Notices were published and whether the Government can compulsorily acquire a non-existent parcel of land. 6. Learned counsel urged that by the time the Supreme Court was delivering its judgement on 30th April 2019, there had been previous suits by the original owner of the suit property and that the said courts with competent jurisdiction vindicated the original owner's rights over and in respect of the suit property. He referred the court to the Judgement and Decree vide **KISUMU HCCC NO. 417 OF 1999** between **James Matu and Sony Out-growers Limited & Another** where the Court decreed that the Plaintiff therein was the registered owner of LR No. South Sakwa/Waware/925 which parcel of land finds its roots from the original suit property, and which decree was never set aside. He also referred to the Judgement and Decree vide KISII HCCC No. 208 OF 2009 between Risper Auma James and Abdi Hussein and Tom Lawrence Mboya in respect of the suit property and other sub-divisions of LR No. South Sakwa/Waware/925 and was held in favor of the Plaintiff therein, also the original owner of the suit Property. 7. Counsel urged that the Supreme Court case was determined in 2019 while these two cases were determined on 26th November 2004 and 29th October 2010 respectively. That the said Judgments typically meant that they remain valid and binding. The original owner was declared to be the rightful owner of the suit property and it was on the basis of the Judgments that the Plaintiff purchased the suit property and was an innocent purchaser for value. 8. Learned Counsel submitted on whether the suit property was compulsorily acquired in the year 1976 vide Gazette Notice Numbers 2996 of 8th October 1976 and 3737 of 24th December 1976. He urged that LR No. South Sakwa/Waware/155 had long been sub-divided on 5th April 1975 and therefore there was no property by that name to be acquired. Further, that it was the evidence of the Defendants that on 5th April 1975, the original suit property as captured in the Gazette Notices Nos. 2996 and 3737 of 1976 was no longer existing. 9. He urged that LR No. South Sakwa/Waware/652 & 653 being the subsequent sub-divisions of the original suit property were not affected by the compulsory acquisition in 1976 as the register had been opened on 5th April 1975 thus the Gazette Notice did not capture or state that these properties were compulsorily acquired, and there was no subsequent Gazette Notice to compulsorily acquire them. 10. It is the plaintiffs’ case that the purported caution by the Government as demonstrated in entry Number 3 on 30th May 1977 of the Green Card of LR No. South Sakwa/Waware/155 was of no significance as the title had been extinguished and/or closed. Similarly, the entries 2 and 3 of LR No. South Sakwa/Waware/652 were of no use as the said parcel of land had not been compulsorily acquired vide the Gazette Notices and this would apply to the entries made on the Green Card of LR No. South Sakwa/Waware/653. 11. Further, counsel urged that the Plaintiff explained that the original owner of the suit property had to sue the 1st Defendant when same purported to trespass on the suit property. The Defendants did not heed to the Judgment vide KISII HCCC NO. 208 OF 2009 and the trespass commenced afresh when the Plaintiff took over possession of the suit property in 2014, 4 years after the said Judgment. Counsel highlighted the findings of PW2 was the County Surveyor who produced the Report dated 24th February 2020, urging that he confirmed that the Defendants are in occupation of a portion of the suit property and the Defendants admitted as much that the Police station was constructed on the suit property. He also referred to the testimony of PW3, urging that both the experts indicated that the Defendants believed that the suit property and the area therein was compulsorily acquired by the Government hence they had the right to occupy same. He then reiterated that the Plaintiff established that in the year 1976 when the compulsory acquisition was being effected, parcel No. South Sakwa/Waware/155 had been sub divided already. 12. He urged that the plaintiff produced the Sale Agreement between him and the original owner of the suit property which demonstrated that the suit property was free from any encumbrance and, after being shown the two Judgments that decreed the Vendor as the legal owner of the suit property, he purchased it. He maintained that the Plaintiff proved his case against the Defendants on balance of probabilities and that the defendant’s only evidence of fraud was that the suit property was acquired compulsorily by the Government in 1976. That however, it has been established that the original property did not exist. 13. Counsel submitted that the plaintiff established that he is entitled to the orders sought in the Plaint and prayed that the suit be allowed with costs. **Defendants’ submissions** 1. The defence counsel opened his submissions by urging that it is important to note that during the pendency of the suit, the plaintiff misinformed the court into issuing an order for the County Land Registrar and County surveyor proceed to visit and establish a boundary onto non-existent parcels of land known as LR No. South Sakwa/Waware/1084 and 1549. That though the visit was done as directed by the court and a report accordingly filed in court, the County Land Registrar and County Surveyor concurred that what's before the court is not a boundary dispute but an ownership issue which must be determined by the court. 2. Counsel urged that according to the contents of the County surveyor’s Report dated 24th February, it clearly states that indeed parcel of land known as South Sakwa/Waware/1084 falls with the Physical Development Plan which is within the planned area for Awendo Township. Equally the report by the surveyor confirms that indeed the alleged parcel of land (1084) falls within designated Awendo police station. That in summary the County Surveyor, in his report, is simply saying there is no land known as South Sakwa/Waware 1084 on the ground as the purported location of the suit land is an area that has already planned and designated for various uses by Awendo town. The planning was done way back in 1979. 3. Counsel also sought to clarify the two issues in respect to Defendant’s locus to institute Counterclaim and the issue of being statute time barred as raised by the plaintiff. He argued that the issues were never raised during the hearing of the suit and were not part of the pleadings before court hence they were an afterthought and an abuse of the Court process. Urging that submissions cannot be a substitute for pleadings especially on contested issues, he cited the holding in the two cases of **Independent Electoral and Boundaries Commission & Anor, vs. Stephen Mutinda Mule & 3 others (2014) eKLR** and **Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR** on the essence of pleadings. He urged the court disregards the said issues. 4. Additionally, that the 1st and 2nd defendants have been sued as employees of Ministry of Interior and Administration of National Government, that by virtue of their posting and occupation of the suit land they have demonstrable interest in protection of the suit land hence they derive authority to exercise the right to access court as provided for under Articles 22 and 258 of the Constitution of Kenya. He cited **Priscilla Nyokabi Kanyua versus Attorney General & another Constitutional Petition No. 7 of 2010 (unreported)** on the approach to locus standi. Further, the 3rd defendant in the Counterclaim is the Attorney General exercising his duties as bestowed under Article 156 of the Constitution of Kenya hence rightly before this court. 5. On the issue of the Counterclaim being statute time barred, counsel urged that the defendants’ position in respect of the suit land is that it is public land, having been compulsorily acquired and vested in the Government of Kenya in 1976, which position was affirmed by the Supreme Court of Kenya in Petition number 37 of 2014 between **Town Council of Awendo vs Nelson O. Onyango and 13 others, Abdul Malik Mohamed & 178 others** (sic). Therefore, the provisions of the limitation statute did not apply to recovery of public land. Similarly, the Counterclaim raised by the defendants in this matter is purely for recovery of public land as such it is exempted from the provisions of the limitation period by virtue of Sections 41 and 42 of the Limitation of Actions Act cap 22 thereof. 6. On whether the suit land known as LR No. South Sakwa/Waware/1084 is part of land known as LR No. South Sakwa/Waware/155 that was compulsorily acquired by the Government of Kenya in 1976 counsel urged that during his testimony the Land Registrar confirmed that the land known as LR No. South Sakwa/Waware/155 was one of the original parcels that emanated directly from Adjudication process. That upon being adjudicated in early 1970s, it was then registered in the name of Odoyo Ojambi on 5th April, 1975 as per entry number 1. That on 13th August, 1976 Odoyo Ojambi was issued with a land certificate as per the entry number 2. That upon acquisition of the said piece of land by the Government in 1976, a restriction was placed by the Government on 30th May, 1977 as per entry number 3. 7. The Land Registrar went further and stated that there are two strange and unsupported entries on the green card, one being entry number 4 purportedly made of 7th September 1979 which is not supported by any document and not authenticated by the signature of the Land Registrar. That the Land Registrar noted that there was some writing immediately after entry number 4 which does not have entry number, it was not dated and or signed. It purports to indicate that land known as LR No. South Sakwa/Waware/155 was closed on subdivision. He equally confirmed that there was absolutely nothing on record to support that alleged subdivision of the suit land. It is not even possible to tell when and who initiated the alleged subdivision. 8. Learned counsel posited that this unsupported, undated, unnumbered and unsigned entry allegedly creating parcels 652 and 653 is where the real mischief to appropriate public land was conceived. That the witness further confirmed that it was not possible to have land known as LR No. South Sakwa/Waware/155 subdivided without first removing the existing restriction placed by the Government through the elaborate processes established under the Act. Additionally, that according to the original green card which was produced before court, the restriction registered over LR No. South Sakwa/Waware/155 by the Government is still intact and at no point was it ever removed. He highlighted that PW3 further stated that the creation of Green cards for alleged parcels known as LR No. South Sakwa/Waware/652 and LR No. South Sakwa/Waware/653 was unsupported, irregular and the documents are thus invalid, null and void. 9. Again, counsel posited that similarly, a casual look at the allegedly created green cards for parcels number LR No. South Sakwa/Waware/652 and LR No. South Sakwa/Waware/653 would further reveal that indeed the said green cards were allegedly opened on 5th April, 1975 the same day as mother title being parcel LR No. South Sakwa/Waware/155 was being opened which is not possible at all. The records further indicate that the Land owner was issued with land certificate later on 13th August 1976. 10. Further, counsel asked the court to take judicial notice that there has been a lot of malpractice originating from the compulsory acquisition that was undertaken by the Government through Gazette notices number 2996 and 3737 of 1976. That despite compulsory acquisition and restrictions being placed on the suit parcels, the officials from the lands Ministry confirmed to the court that indeed unauthorized and irregular subdivisions were still being undertaken by the parties in conjunction with rogue Government officers from land department. This position was aptly stated in the Court of Appeal at Nairobi, Civil appeal No. 232 of 2011 between Peter Ouma Omolo and Another vs Awendo Town Council and Another 11. Learned counsel urged that the sequence further shows that after creation of two fictitious registers for parcels 652 and 653 from the alleged subdivision of parcel LR No. South Sakwa/Waware/155 parcel number LR No. South Sakwa/Waware/652 was then allegedly subdivided to create parcels LR. NO, SOUTH SAKWA/WAWARE/925 and LR No. South Sakwa/Waware/926 in the year 1998. On further scrutiny of the documents, the green card for parcel number LR No. South Sakwa/Waware/925 is allegedly subdivided thus creating the instant parcel being LR No. South Sakwa/Waware/1084 on 2nd March 2007 among others. All the above records together with testimony of the Land Registrar Clearly demonstrates that the alleged subdivisions were done on paper and not on the ground. 12. Counsel urged that these uncontested material facts lead to the irresistible conclusion that indeed parcel of land known as LR No. South Sakwa/Waware/1084 traces its roots from land known as LR No. South Sakwa/Waware/155 which is the mother title. The Defendants duty in this matter was purely to demonstrate that linkage. 13. Having established that indeed parcel known as LR No. South Sakwa/Waware/1084 is a resultant fictitious subdivision from parcel known as LR No. South Sakwa/Waware/155, Counsel moved to demonstrate that indeed the Government of Kenya in 1976 compulsorily acquired the whole 21.5 Ha comprised in the above parcel of land. He urged that during the hearing, the defendants produced 22 exhibits in support of its counterclaim as well as compulsory acquisition process. That the Government of Kenya published two notices of intention to acquire land under gazette notice number 2996 dated 8th October, 1976 and Notice of Inquiry Being Notice number 3632 dated 10th December, 1976 for South Nyanza Sugar Scheme. Under the said notices all the parcels of land that were to be acquired by the Government and their respective titles were properly mapped and identified. That from parcel of land known as LR No. South Sakwa/Waware/155 measuring 21.5 Ha, the Government of Kenya acquired 15.5 Ha. 14. Similarly, the Government of Kenya issued two others Notices, one being the Notice of Intention to Acquire which was number 3737 and the Notice of Inquiry being number 3738. Both were dated 24th December 1976 for South Nyanza Sugar Scheme (Awendo Township Expansion). In the two Notices, as it can be seen from the record, the Government intended and indeed acquired additional 6.0 Ha from land known as LR No. South Sakwa/Waware/155. 15. Counsel urged that in summary and based on Gazette Notices numbers 2996, 3632, 3737 and 3738, the total size of the land that was acquired by the Government of Kenya is 15.5 Ha + 6.0 HA =21.5 Ha. This is the entire land comprised in title known as LR No. South Sakwa/Waware/155 as per the records. Further, that the defendants demonstrated during the hearing that pursuant to that compulsory acquisition, a List of individuals to be compensated was thereafter prepared as well as schedule of payment dated 1st November 1977 by the Commissioner of Lands. Accordingly, all the beneficiaries were paid through cheque as per the cheque payment sheet that the defendants produced in court. According to the cheque payment sheet Waware sub-location, for South Sakwa/Waware /155 which was wholly acquired, the original owner one Odoyo Ojambi was fully paid a total of Kshs 52,240/= via cheque number 2326 on 9th December 1977. 16. Learned counsel maintained that the Defendants have satisfactorily demonstrated that indeed parcel of land known as South Sakwa/Waware /155 was wholly acquired by the Government of Kenya in 1976 and the original owner fully compensated hence the said parcel of land was not available for subdivision as alleged by the plaintiff or at all. 17. Counsel urged that based on the material they placed before court, the plaintiff only provided an agreement for sale and the copy of title but failed to provide and/or demonstrate the processes he underwent, the necessary completion documents that he obtained before the alleged title deed was issued to him. He cited the Supreme Court of Kenya in the case of **Dina Management Limited v County Government of Mombasa & 5 others (Petition No. 8 (E010) of 2021** (*sic*) and urged that all the alleged subdivisions emanating from 155 were irregular, illegal and nullity hence any title emanating from the said irregular process including the Plaintiffs title is invalid, null and void. 18. Counsel urged that the plaintiff’s pleadings, list of documents, testimony and submissions thereto were contradictory and advanced two parallel positions both aimed at hoodwinking the court. Further, that assuming that indeed land known as South Sakwa/Waware /155 was partially acquired by the Government as alleged then the process to re-survey and sub-divide could only be initiated by the Government and not the initial land owner. He urged that the plaintiff has not demonstrated that he lawfully acquired any interest over land known as South Sakwa/Waware/1084 capable of being protected by the law, praying that the suit be dismissed with costs. 19. Counsel urged that the counterclaim proceeded unopposed, reiterating that the issue of compulsory acquisition of the land parcel known as South Sakwa/Waware is a settled issue as per the Supreme Court decision. Further, that by dint of the provisions of Article 40(6), the plaintiff cannot seek refuge and/or any protection under the provisions of Article 40 (1) - (5) of the Constitution. Additionally, that the alleged seller one Risper Auma James had no title to pass hence the plaintiff could not obtain a proper and an indefeasible title capable of being protected by law. He cited Teleposta Pension Scheme Registered Trustees v Intercountries Importers and Exporters Limited and 5 Others. Civil Appeal No. 293 of 2016 on indefeasibility of title. 20. Counsel urged that as a result of injunction orders obtained by the plaintiff herein, the project of the Awendo Police Station building stalled and in fact the building has been vandalised causing unnecessary burden to the tax payer. That a global sum of Kshs 5,000,000 would be enough compensation to the Defendants as damages to restore back the vandalised buildings and also to send a clear warning to those who perpetuate land fraud at the expense of the general public. 21. Counsel prayed that the plaintiff’s suit be dismissed with costs and the unopposed counterclaim dated 18th November 2020 be allowed in its entirety and orders sought therein be granted as prayed. **Analysis and Determination** 1. Before delving into the main issues for determination, I note that the plaintiff has raised the issues of locus standi and statutory time bar with regards to the counterclaim. The plaintiff contends that the defendants do not have the locus standi to institute the counterclaim as they are not the registered owners of the suit land. Additionally, he contends that the counterclaim is statutorily time barred with regards to the issue of fraud. 2. Notably, these issues were never pleaded in any of the pleadings and are only raised in the submissions. It has long been held that submissions are not pleadings and therefore, the raising of these issues through submissions is untenable. In **Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment)**, the Court of Appeal held; **“Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”** 1. Suffice it to say, it is trite law that parties are bound by their pleadings, and submissions that are not in consonance with pleadings must be rejected. In **Basari Company Ltd vs Mwamburi Wangio [2018] eKLR** it was held; **“It is an established and crystalized point and position of the law that submissions by themselves are not pleadings nor evidence. However when submissions are offered to court to purely assist it come to an award comparable to previous awards for comparable injuries, the same must be seen as assistance offered to court by the litigant or counsel towards discharge of duty to court. In that event a court is obligated to make reference and take regard of such submissions even if such is done at the level of courtesy and appreciation of the parties’ industry. It would be to this court unwarranted for parties to take time and employ material resources in offering submissions to court only for the court to wholly ignore same.”** 1. Moreover, parties are bound by their pleadings. They cannot be permitted by discretion or ingenuity to trudge beyond their pleadings. Otherwise, how can one’s case keep evolving without bounds? If this is permitted, parties’ cases will evolve and mutate to mongrels at the whims of the claimants or defendants in order to defeat the interests of justice. 2. This Court has in many occasions reiterated that pleadings are a critical component of a party’s case and they bind the party. For instance, in Mutwol v Mutwol & 4 others (Environment and Land Case 37 of 2020) [2026] KEELC 1876 (KLR) (17 March 2026) (Judgment), it held as follows: ***“215. To determine the issue, the law is that parties present their cases to courts or judicial for a through pleadings. They bind themselves to their pleadings. The starting point here is that pleadings are a critical nerve in the life of any claim. Parties must always pay attention to their pleadings because they are bound by them. They cannot trudge beyond their claims. The Supreme Court of Kenya in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR while discussing the essence of pleadings in an election petition found and held…***” 1. Of this important principle of law, the Supreme Court of Kenya in **Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR** while discussing the essence of pleadings in an election petition found and held as follows in respect to:- ***“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings...’”*** 1. In **Odongo v Wadiya & 2 others (Environment and Land Appeal 029 of 2025) [2025] KEELC 7976 (KLR) (13 November 2025) (Judgment)**, this court held; ***“Parties bound by their pleadings. They are not permitted to depart in adduction of evidence from the pleadings otherwise it would amount to trial or defence by ambush. One’s case must be stated and made plain to the other or adverse party so that they know what to expect both in pleadings and evidence so that they too prepare. To do otherwise would lead to an unfair trial which is not only unconstitutional but would open a den and present to the adverse party of a boundless marouding mongrel which would obviously devour them. That would be unfair and an uneven ground for play.”*** 1. In a fairly similar issue for determination, A C Mrima J. in the case of **Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR**, stated as follows: - ***“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”*** 1. In **Tolksdorf v Mwangi & 3 others (2025) KEELC 848 (KLR)**, the court restated this principle by holding that; ***‘Additionally, this is an issue that was not pleaded in them Plaint dated 8th April 2022. It is trite that parties are bound by their pleadings and cannot be allowed to depart from the same.’*** 1. Even the situation which may call for the Court to look at parties’ pleadings differently by altering them are not permitted by the law, unless in extremely exceptional circumstances where the content does not change at all. Thus, in **Obonyo v Owuoti & another (Environment and Land Appeal E031 of 2024) [2026] KEELC 405 (KLR) (29 January 2026) (Judgment)** this court stated as follows: “***It is trite law that parties are bound by their pleadings, and the court should not trudge into granting that which has not been pleaded, unless whatever relief other than that which is pleaded is arising out of the necessity to give efficacy to the main reliefs granted. In the circumstance, it is this court’s view that in as much as the trial court found that the 1st Respondent was the owner of the suit parcel, the trial magistrate erred in fact and law in directing the Land Registrar Migori County to remove the caution registered by the Appellant because in any event the Land Registrar was not a party to the proceedings.***” 1. Given the erudite opinions above, this Court opines that if the Plaintiff herein did not plead a matter he wishes to raise now in his submissions, he is estopped from going in that direction. In those circumstances, the issues of locus standi and the statutory time limit were not pleaded or addressed in the course of the suit, the same are not up for determination at this juncture and shall not be given consideration. Even if they could be in issue, as to limitation of time, it depends on when fraud is discovered or when it could have with reasonable diligence been discovered. In the instant case, the fraud was discovered by the Defendants when the plaintiff purported to assert ownership claims over the land. That period is less than three years from the time of the counterclaim. 2. In any event, fraud is not one of the legal ways of acquisition of property. What I mean is that the Plaintiff herein claims that since the government, according to him, could have discovered in the years 2012 or when he obtained the fraudulent title he owns, then because it did not raise the claim of fraud against him, the government is estopped from raising a Counterclaim to defeat his title. This in my humble view is an all powerful slap on the face of justice. It is an absurd position to be held by anyone besides the Plaintiff. 3. That said, thecrux of this suit is that the plaintiff claims that he is the rightful registered proprietor of the parcel known as South Sakwa/Waware 1084, which was a sub division of South Sakwa/Waware/925. Briefly put, he claims that he purchased the parcel of land from one Risper Auma vide a sale agreement dated 5th May 2011. On their part, the defendants contend that the suit land is a sub-division of South Sakwa/Waware 155 which was acquired by the government vide Gazette Notices 2996 and 3737 of 1976. 4. Defeasibility of title is governed by the provisions of Section 26 of the Land Registration Act which provides thus:- 5. **The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—** 6. **on the ground of fraud or misrepresentation to which the person is proved to be a party; or** 7. **where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.** 8. **A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original”** 9. Of indefeasibility or otherwise of title, the Court in **Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another (2013) eKLR** the court held; **“…the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.”** 1. Similarly, of this concept, the Court of Appeal in the case of **Munyu Maina v Hiram Gathiha Maina [2013] eKLR** held as follows: **“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. 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 and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”** 1. The Supreme Court reaffirmed this approach in **Jan Mohammed (SC) (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v Lagat & 4 others (Petition No.17(E021) of 2023 and 24(E027) of 2022 (Consolidated) [2024] KESC 39 (KLR)** thus: **“As regards the principle of indefeasibility of title, and bona fide purchaser for value without notice of the defect in title, this court set guiding principles in the cases of Dina Management Limited v County Government of Mombasa & 5 others SC Petition No 8 (E010) of 2021; [2023] KESC 30 (KLR) and Torino Enterprises Limited v Attorney General SC Petition No 5 (E006) of 2022; [2023] KESC 79 (KLR). The Court stated that where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. The registered proprietor must go beyond the instrument of title and show that the acquisition was legal, formal and free from encumbrance. However, the responsibility to prove legitimacy of title is not only limited to the party whose title is being challenged. It also extends to the party claiming infringement of his property rights, to prove his entitlement warranting the attendant constitutional protection sought.”** 1. I have considered the evidence on record and the testimonies of the evidence of the witnesses and the sequence of events that led to the existence of the suit land is very clear in my mind. The Government issued two Gazette Notices on 8th October 1976 and 10th December 1976 being a Notice to Acquire land and a Notice of Inquiry numbered 2996 and 3632 respectively. It additionally issued a notice of enquiry through Gazette notices 3737 and 3738 on 24th December 1976 for Sony Nyanza Sugar Scheme. According to the notices, the registered owner of the parcel known as LR No. South Sakwa/Waware/155 was Odoyo Ojambi. The Green card for parcel 155 reveals that it was opened on 5th April 1975 and title issued to Odoyo Ojambi on 13th August 1976, which corroborates the information on the gazette notice as to proprietorship. 2. The entries on the green cared of the parcel No. South Sakwa/Waware/155 shows that a caution was placed on 30th May 1977 for a purchasers’ interest by the Government of Kenya. Notably, this caution is never indicated to have been removed at any point in time. After the caution, there are undated and unsinged entries pertaining to the sub division and the closing of the title. The resultant subdivisions, 652 and 653, from their green cards, indicate that they were opened on 5th April 1975, which is the same date that the mother title was opened. These irregularities were unexplained and cannot be ignored. 3. Parcels LR No. South Sakwa/Waware/652 and 653 were further sub divided with 652 resulting in 925 and 926 in the year 1998 with the register for 925 having been opened on 4th February 1998, and a title issued to James Matu Odoyo on 1st April 1998. A restriction was then placed on the land on 11th May 2001 for the reason that the title had been acquired by the Government. The next entry was the removal of the restriction by the Chief Land Registrar on 19th September 2005. A title was then issued to Risper Auma James on the same date and another restriction was subsequently placed on the title on 18th January 2006. The Green card for the suit land 1084, indicates that it was a sub division of 925 with the register having been opened on 2007 with a title having been issued to Risper Auma and subsequently to the plaintiff on 7th February 2012. 4. The evidence tendered reveals that the suit land is a sub division of 155. It is also clear that through gazette notices 2996, 3632, 3737 and 3738, the Government acquired a total of 21.5 Hectares of land comprised in South Sakwa/Waware/155. Odoyo Ojambi was paid Kshs. 52,540 vide a cheque number 2326 on 9th December 1977 with evidence of the same having been tendered in court vide the cheque payment sheet produced by the defendants. 5. The plaintiff’s position is that the portions of land were sub divided by 1976 and as such, the subsequent sub divisions were not affected by the compulsory acquisition of South Sakwa/Waware/155. Further, that the Government officers did not conduct due diligence while publishing the Gazette Notices. 6. I find this sequence of events and contention implausible as the evidence on record clearly shows the origin of all the titles. His title is the one whose origin cannot be traced to a proper source or its root capable of establishing its legality or proper acquisition. I state so because, as per the green card in respect of parcel No. 155, the mother title was created on 05th April 1975 and the land certificate issued to Odoyo Ojambi on 13th August 1976. Then there were purported sub-divisions which are the product of a conveniently undated entry on the green card. Notably also, the entry was made after a Caution had been placed on the title on 30th May 1977 and after which the Government of Kenya had paid a sum of KShs 4428/= on 07th September 1979 for the title and its entry duly entered on the register. It is worth repeating that there was no entry of removal of the caution. Thus, the entry of subdivision and closure of the title, which is neither dated not signed for by anyone was made during the subsistence of the Caution. This and the subsequent dealings on the parcel of land by any private individuals including the purported seller, one Risper, to the Plaintiff were clearly fraudulent activities and can’t be relied upon to establish good title for them and the Plaintiff. 7. Removal of a caution is governed by Section 73(1) of the Land Registration Act (which repealed the previous statute on placement of cautions on properties) which provides as follows; 8. **A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the Registrar.** 9. To date, there is no evidence that the caution that was entered in 1977 was ever removed. I therefore repeat that it follows that the subsequent sub divisions were irregular at the very least and fraudulent at most. As such, they were void ab initio due to the irregularities. 10. The Plaintiff additionally failed to prove that he conducted due diligence when purchasing the land. He contended this he did when Risper Auma James gave him **PExh 3** a copy of the **Judgment in Kisumu HCCC No. 417 of 1999**, a case between **James Matu -vs- Sony Out Growers Co. Ltd and Anor** whose decision was delivered on 26th November 2004. He added that part of the due diligence was PExhibit 4 being a copy of title deed to the suit land issued on 5th March 2007 which the seller showed him. With that he entered into a sale agreement with Risper Auma in respect of the suit land on 5th May 2011. 11. Of important note is that during cross examination, it emerged that he did not have the transfer forms and the consent forms for the land which are crucial documents to establish how he got to be registered as owner of the land. Absent of these, possession of the title itself only could not demonstrate the root of title for his parcel of land. Again, from his own evidence then on due diligence he did not visit the suit land before entering into the agreement. He stated further that it was in 2014 that he moved to the land only to find that the police station claimed it and his workers were repulsed by them. 12. In my humble view the activities of the Plaintiff did not constitute sufficient due diligence. He did not carry out an official search; he did not visit the land to establish that it was not occupied by anyone than the seller; he did not establish the root of the title he was shown as having been legal or regularly processed. 13. Additionally, there was no evidence that the land was ever degazzetted and therefore, upon gazettement and compensation to the title holders, the mother title was not available for sub division. I also note that the land was part of the parcels that were the subject of **Town Council of Awendo v Onyango & 13 others; Mohamed & 178 others (Interested Parties) [2019] KESC 38 (KLR)** where at paragraph 19, the Supreme Court held; **“Through the instrumentality of Gazette Notices Nos. 2996 and 3737 of 1976, all parcels of land whose land titles were listed therein respectively, were compulsorily acquired and vested in the Government of Kenya. The appellant (or its successor in title) held that land in trust for the residents of the area, and as the implementing agency of the public purpose for which the land was compulsorily acquired. The letter written by the Land Registrar, directing the appellant to re-survey the land and allocate the same to the original owners or their successors in title had no legal basis.”** 1. The plaintiff’s argument on the effect of this judgment on his claim is that the same was made after there were other judgments on the sub divisions and, that the parcel of land did not exist as at the time of the judgment. It is my considered view that this line of argument holds no water as it has been shown that the sub divisions were irregular and illegal. From the dates the registers were opened, it appears there has been backdating of these documents to give the impression that the sub division occurred before the compulsory acquisition. Additionally, under the common law legal system our country operates in, the hierarchy of courts dictates that the decision of the Supreme Court is binding in all other courts. Thus, the impact of the decision was that the parcel LR No. South Sakwa/Waware/155 was acquired by the Government, and consequently, all sub divisions were nullified. But even if the Supreme Court did not make such a finding, this court has found, from a careful scrutiny of the green card in respect of parcel No. 155 and the evidence of **DW1** and **DW2**, that the land was acquired by government which placed a caution on the register. Then before even the caution could be removed, someone purported to cause subdivision and closure of the title without even signing or dating the entries thereunder. This was sheer “theft” of government land. 2. Regarding the argument that the plaintiff was an innocent purchaser for value because the judgment produced as **PExh 3** declared the original owner the true owner, this Court has carefully analysed the Plaintiff’s evidence. Before drawing a conclusion on the submission on the issue, of an innocent purchaser for value, the Supreme Court in **Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR)**, held that such a purchaser is the buyer who exercises due diligence, which includes, but is not limited to, carrying out an inspection of the suit property. It defined that person as follows; ***“An innocent purchaser for value would also denote one was aware of what they were purchasing by inspecting the suit premises. This takes us to the question of whether the appellant had visited the suit premises and if so, what was its impression of the military installations on the suit premises? The fact that the suit land was occupied must have sounded a warning of “buyer be aware” to the appellant. We therefore find that it was not an innocent purchaser for value entitled to orders for restoration or compensation” [Emphasis added].*** 1. Further, the **Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment)** reiterates that “***It is worth emphasizing that the innocent purchaser doctrine only protects the purchaser against those basing their claims upon an equitable interest in the suit land***.” 1. Additionally, the Supreme Court **Sehmi** case (supra) restated the principle of an innocent purchaser for value as follows: ***“58. It is a fundamental principle of the law of property in land that a purchase of a legal estate for value without notice is an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner or encumbrancer. The onus of proof however lies upon the person claiming to be a bona fide purchaser. Three main ingredients must be present for a claimant to mount a successful defence based on the doctrine. These are, innocence, purchase for value, and a legal estate.*** ***59. The element of innocence means that the purchaser must act in good faith. His conduct must not raise any doubt as to whether indeed, he did not have any notice or knowledge as to the existence of a rival interest in the suit land. If for example, it comes to light that during the process of purchase, the claimant engaged in conduct that was unconscionable in the eyes of equity, such conduct would weaken his claim of innocence as to the existence of a rival interest. The element of innocence also connotes the exercise of diligence expected of any reasonable purchaser. The claimant must demonstrate that he acted diligently and conducted a reasonable inquiry into the status of the estate or land that he sought to purchase.”*** 1. In the instant case, the Plaintiff claims that he was an innocent purchaser for value, having been shown by the seller a Judgment that declared the original owner as proprietor of the suit land. But as stated above I have found that the Plaintiff did no meaningful due diligence which would place him in the position of an innocent purchaser for value. 2. His further argument was that the Supreme Court case was determined in 2019 while the two cases he relied in the establishment of the root of title, namely, **KISUMU HCCC NO. 417 OF 1999** between **James Matu and Sony Out-growers Limited & Another** where the Court found the Plaintiff the registered owner of LR No. South Sakwa/Waware/925 and KISII HCCC No. 208 OF 2009 between Risper Auma James and Abdi Hussein and Tom Lawrence Mboya were determined on 26th November 2004 and 29th October 2010 respectively. He added that the said Judgments remain valid and binding. 3. In my humble considered view, the government of Kenya which was the rightful owner of the suit land, which is parcel No. South Sakwa/Waware/155, and not the parcels of the irregular subdivisions, was not joined as a party in the two cases. Moreover, the Plaintiff did not demonstrate that the root of title in the two decisions was traced and found to have been established. In any event as I have found above that the titles which were purported subdivisions and ownership by private individuals from parcel No. 155 were unprocedural. The Plaintiff did not prove that the government of Kenya was a party in the two cases alleged to have created a root of the titles that were litigated over in the suits. As an explanation to insufficiency of the contention regarding the two cases, this Court wishes to put it clear by analogy as follows: If I am the true owner of parcel of land No. X, and two people one of whom has a fake or unprocedurally acquired title documents over my said title sue each other over the same without both my knowledge and involvement, and one of them obtains a judgment declaring him as owner, that will not deprive me of my legal ownership. Therefore, in my humble view, any judgment, of the two that declared Risper Auma as owner of the suit is at best a simple declaration between the litigants and no more. It follows that no proper root of title existed in her favour and has been established. The plaintiffs’ claim fails in its entirety as his title is one of the unprocedurally acquired and nullified sub divisions. 4. The defendants, in their counterclaim, prayed for a declaration that the plaintiff is a trespasser. Section3(1) of the Trespass Act, Cap 294 provides that; **Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.** 1. I take note that the Section is specific as to the land being private for trespass to have been committed. As the land is established to have been public land, I find that the orders on trespass, including general damages cannot issue in the circumstances. 2. As for the eviction of the plaintiff, it was the evidence of the surveyor who visited the suit land was that the Police Station was partially erected on parcel number 1084. No clear evidence was led as to the occupation of the suit land by the plaintiff. PW1 stated that he moved to occupy the land in 2014 when he could not because his workers were repulsed by the police. It is doubtful whether the Plaintiff is on or may have been on the suit land. In any event, the order of injunction has issued against the Plaintiff/ 1st Defendant in the Counterclaim prohibiting him, his servants, agents or anyone claiming through him from entering or remaining on parcel No. South Sakwa/Waware/155 or part thereof. Thus, he or they should not remain on the land. Additionally, I have found that the Plaintiff is not the owner of the suit land hence there cannot be any basis for to remain on another’s land or claim trespass thereon. 3. The upshot is that given the checkered past regarding the ownership of this land, and that this is a claim for recovery of public land, and in light of the decision in the Supreme Court on the acquisition of the land, the counterclaim succeeds in the following terms; 4. **The Plaintiff’s suit is dismissed while the counterclaim succeeds.** 5. **An order of eviction is hereby issued against the 1st defendant in the Counterclaim, in the event that the he is on the suit land, from the land known as LR. NO. SOUTH SAKWA/WAWARE/155, and specifically the part thereof that he claims to comprise in L.R. No. South Sakwa/Waware/1084.** 6. **An order is hereby issued revoking forthwith the alleged title of the 1st Defendant in the counterclaim, being title to parcel LR. NO. SOUTH SAKWA/WAWARE/1084.** 7. **Permanent injunction restraining the 1st defendant in the counterclaim either by himself, through his agents or servants from interfering in any way with LR. NO. SOUTH SAKWA/WAWARE/1084 is hereby issued.** 8. **Costs of the suit and counterclaim shall be borne by the Plaintiff who is the 1st Defendant in the Counterclaim.** 9. It is so ordered. **Judgment dated, signed and delivered virtually via the Teams Platform this 14th day of July 2026** **HON. DR. IUR NYAGAKA** **JUDGE** **In the presence of,** Langat Advocate for the Plaintiff Ms Opiyo State Counsel for the **1st** to **3rd** Defendants/ Counterclaimers