Ogwang & 3 others v Odak (Sued as the Legal Representative and Administrator of the Estate of the Estate of Zilpah Odak - Deceased) (Environment and Land Case 28 of 2021) [2025] KEELC 7714 (KLR)
The bottom line
#The Environment and Land Court in Kapsabet confirmed the plaintiffs own the disputed land, ordered the defendant's eviction, and dismissed his counterclaim, including his Plot 38 Oyugis Town claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the parent land registered in the name of Deceased-1 arose from the Adjudication and Demarcation Process at Kamuma Adjudication Section, was succeeded by Deceased-2, then PW4, and sub-divided giving rise to the 1st to 4th suit parcels
- 2.Whether the 1st to 4th suit parcels lawfully belong to the Plaintiffs who acquired legitimate rights upon sub-division, mutation and transfer
- 3.Whether Plot Number 38, Oyugis Town, exists
- 4.Whether the parties are entitled to the prayers in their respective pleadings
Key legal issues
#Ownership of the 1st to 4th suit parcels
The plaintiffs proved ownership through title deeds, green cards and official searches; their titles are protected under the Land Registration Act and they are absolute and indefeasible owners
PW1 traced the root from adjudication through succession to subdivision and transfer, corroborated by surveyor and Land Registrar evidence and exhibits. Title deeds and green cards established registration in the plaintiffs' names, protected under sections 24, 25 and 26 of the Land Registration Act.
Existence of Plot No. 38 Oyugis Town
Plot 38 Oyugis Town does not exist at the disputed site; the suit parcels derive from the parent land, not the plot
Expert evidence of the Land Surveyor (PW2) and retired Assistant Land Registrar (PW3), including the Land Registrar's report and Preliminary Index Diagrams, placed Plot 38 in a different location on a different sheet, while a petrol station stood on the suit parcels.
Trespass and entitlement to remedies
The defendant is a trespasser on the suit parcels; plaintiffs entitled to declarations, eviction and permanent injunction
Exhibits 30 and 31 established that the defendant, through a petrol station and temporary structures, occupied the plaintiffs' registered land without basis, entitling the plaintiffs to the remedies sought under section 13(7) of the Environment and Land Court Act.
Defendant's counter claim on Plot 38 and fraud
Counter claim dismissed for failure to prove fraud and existence of Plot 38 to the requisite standard
The defendant's counsel partly participated but offered no evidence and adduced nothing to distinctly prove the pleaded fraud; the claim that the suit parcels were superimposed on Plot 38 was therefore unproved and the counter claim had to fail.
Mesne profits
Refused because no specific sum was pleaded or proved
Although trespass was established, mesne profits must be specifically pleaded and proved with a quantified claim; the plaint did not claim a specific sum, so this head of relief was unavailable.
Legal principles established
#- A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner
- The burden of proof rests on the plaintiff on a balance of probabilities and is not lessened where the case proceeds by formal proof
- A party must distinctly prove fraud as pleaded
Court orders
#- 1.Judgment entered for the plaintiffs against the defendant in terms of prayers (i), (ii), (iii) and (iv) of the plaint dated 10th February 2015 (declarations, trespass, eviction and permanent injunction), with eviction to be carried out as prescribed
- 2.The defendant's counter claim dated 3rd April 2015 and amended 4th February 2022 is dismissed
- 3.Costs of the suit and counter claim to be borne by the defendant under the proviso to section 27(1) of the Civil Procedure Act
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act, section 13(7) (2011/2015)
Relief refused
#Mesne profits and interest thereon
Not specifically pleaded or quantified in the plaint; mesne profits must be pleaded and proved
Costs
The costs of the suit and the counter claim to be borne by the defendant by dint of the proviso to section 27(1) of the Civil Procedure Act.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Judgment is hereby entered in favour of the plaintifis against the defendants in terms of prayers (i) (ii) (iii) and (iv) at the foot of the plaint dated 10th February, 2015
The defendant’s counter claim dated 3rd April 2015 and amended on 4th February 2022, be and is hereby dismissed.
The costs of the suit and the counter claim to be borne by the defendant by dint of the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya.
the Plaintifis’ is firm, cogent and established against the Defendant on a balance of probabilities.
Mesne profit must be pleaded and proved. No specific sum was claimed in the plaint thus, the Plaintifis are not entitled to mesne profit relief
Issues in the judgment
#Internal inconsistency in the dates of the defence and counter claim - the plaint was filed in 2015 yet the defence is described as dated 2022 in one passage and 2015 in the orders
The Land Registration Act is cited inconsistently as both 2016 and 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogwang & 3 others v Odak (Sued as the Legal Representative and Administrator of the Estate of the Estate of Zilpah Odak - Deceased) (Environment and Land Case 28 of 2021) [2025] KEELC 7714 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7714/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.