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)

(ii) Declaration that the actions and/or omissions of the Defendant of entering upon, taking possession of and building onto portions of the 1st, 2nd. 3rd and 4th suit parcels of land, amounts and/or constitutes Trespass. (iii) An Order of Eviction against the Defendant her agents and/or servants from the 1st, 2nd. 3rd and 4th suit parcels of land. (iv) Permanent injunction restraining the Defendant either by agents, servants, and/or anyone claiming under the Defendant entering upon, re-entering, trespassing onto, fenced structures, operating a Filing station, interfering, with and/or other manner dealing with the 1st, 2nd. 3rd and 4th suit parcels of land and/or portion(s) thereof, whatsoever and/or howsoever. (v) mesne profits. (vi) Interest on (v) hereof at court rates. (vii) Costs of this suit, together with interest thereon to be borne by the defendant. 2. Briefiy, the Plaintifis’ case is that after adjudication and demarcation process at Kamuma Adjudication Section later Registration Section, LR No. Central Kasipul/kamuma/1436 (The parent land) was registered in the name of Nyatuga Onyango (Deceased-1) whose estate was succeeded by Peterlis Obondo Nyatuga (Deceased-2) who subsequently sub divided the same into LR Nos, Central Kasipul/ kamuma/4869 and 4870 under the name of Deceased-2. Later, the estate of Deceased-2 was succeeded by John Odhiambo Odoyo (PW4) who subdivided LR No. Central Kasipul/kamuma/4869 into the 1st to 4th suit parcels of land and transferred them to the plaintifis. 3. It is the contention of the Plaintifis that on or about the years 2012/2013, they discovered that the Defendant had trespassed into the 1st to 4th suit parcels of land claiming that the said parcels are superimposed upon plot No. 38. Oyugis Town. That the Defendant proceeded to and filed Oyugis CMCC No. 114 of 2014 seeking to bar the Plaintifis from taking possession of the 1st to 4th suit parcels of land. That the said Court did not have jurisdiction to entertain the matter thus, it precipitating this suit. 4. In the defence and counter claim dated 3rd April 2022 and amended on 4th February 2022, the initial Defendant (Deceased) whose estate was succeeded by the current Defendant, represented by Odingo & Co Advocates, denied the Plaintifis’ claim and stated that the 1st to 4th suit parcels of land were obtained through fraud by so encroaching into Plot No. 38 Oyugis Town and pleaded particulars of fraud thereof. That the said plot legally exists and that the Plaintifis’ allegations are baseless and vexatious. 5. By the counter claim, the Defendant states that the Plaintifis have persistently and without reason been interfering with the ownership of Plot 38 Oyugis Town. That the Plaintifis be restrained from doing such tortuous acts. That therefore, the Plaintifis’ suit be dismissed with costs to the Defendant and there be a declaration that Plot No. 39 owned by the Defendant, is in existence. 6. In a reply to defence and defence to counter claim dated 19th May 2023, the Plaintifis stated in part, that the particulars of fraud alleged by the defendant are imaginary and deficient of their contents. They opposed the counter claim and termed it misconceived, bad in law, barred by sections 4 and 7 of the Limitations of Actions Act Chapter 22 Laws of Kenya and that the same was filed by a party who lacks locus standi without leave of the Court. They pray that the defence and the counter claim be struck out and or dismissed with costs and judgment be entered in favour of the Plaintifis in terms of the plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7714/eng@2025-11-05 2

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7. The 2nd Plaintifi (PW1) relied on his statement dated 10th February 2015 as part of his evidence and stated that he has authority of even date from his co-plaintifis to testify herein. He stated, inter alia, that the original Plaintifi, Zilpah Odak (Deceased) passed on during the subsistence of this suit. He narrated the history of the matter from the parent land through to the registration of the 1st, 2nd, 3rd and 4th suit parcels of land in the name of the 1st plaintifi as per the green card, certificate of oficial search, title deed and sale agreement (P Exhibits 6 and 10, 14 and 15), his (PW1) name as revealed in the green card and certificate of oficial search (P Exhibits 7 and 11), the 3rd plaintifi’s name as shown in green card and certificate of oficial search (P Exhibits 8 and 12) and the 4th Plaintifi ‘s name as per the green card and certificate of oficial search (P Exhibits 9 and 13 respectively. That the initial Defendant sue the Plaintifis in Oyugis PMCC No. 114 of 2014 as discerned in the plaint (P Exhibit 16) and he further relied on supplementary bundle of documents dated 1st July 2016 S/Nos 1 to 12 (P Exhibits 18 to 29 respectively) as well as the further supplementary list of documents dated 19th May 2023 (P Exhibit 30) and Land Registrar’s report dated 3rd February 2017 (P Exhibit 31) herein. 8. PW2, Thomas Tontone Oluoch Nyakado, Land Surveyor told the Court in part that he accompanied PW3, Wyclifie Kwendo OlonyI to the 1st to 4th suit parcels of land more than once and that the said parcels existed on the ground occupied by a petrol station in Oyugis Town and contained in Map Sheet No, 19, Kamuma Registration Section. That they were further sub divisions of the parent land. 9. PW3, testified on 12th March 2024 that he was a retired Assistant Land Registrar Kosele Land Registry where he served between June 2017 and June 2020. That he visited the four suit parcels of land to confirm the existence of Plot No. 38 in Oyugis Town and prepared a report dated 3rd February 2017 (P Exhibit 31) which reveals that the parcels belonging to the plaintifis exist but are not related to Plot No. 38. That there is a petrol station and temporary structures thereon hence, trespass as per (P Exhibit 31). That a letter Ref. No. Central Kasipul Kamuama/5844, 5845, 5846 and 5847 dated 30th September 2016 was prepared by J. Osiolo, Land Registrar who worked with him for two years and was conversant with his handwriting and signature annexed to the Plaintifis’ further supplementary list of documents dated 24th January 2022 (P Exhibit 32) which produced in evidence but did not undergo cross examination herein. 10. PW4, John Odhiambo Adoyo, states that he was a shop attendant and relied upon his statement dated 10th February 2015 which was adopted as part of his evidence. He did not undergo cross examination. In his statement, he stated in part that upon obtaining a certificate of confirmation of grant in respect of the estate of deceased-2, he caused a sub division of the parent land to be transferred to his name and subsequently sub divided the same into the 1st to 4th suit parcels of land which he transferred to the plaintifis. 11. By the Plaintifis’ submissions dated 27th May 2024, reference was made to the plaint, the statement of defence and counter claim as amended, the evidence of the 1st Plaintifi (PW1), PW2, PW3 and PW4 that the 1st to 4th suit parcels are registered in their respective names and they have a right to possess and occupy the same. That their registration thereof is protected under sections 24, 25 and 26 Land Registration Act 2016 (2012) against the Defendant, agents and servants are on the suit parcels of land with no reasons and urged the Court to enter judgment as prayed in the plaint ad the Defendant was a trespasser thereon. To fortify the submissions, counsel cited, inter alia, Ali Wanje-vs-Abdubasil Abeid Said & another (2022) eKLR and Sammy Kemoo Arekai-vs-Eliakim W Oweny & another 2021) eKLR. 12. The Defendant’s counsel failed to file submissions. The last time counsel attended Court was on 23rd January 2024 when PW1 testified. Since that time, the Court noted that counsel has never attended https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7714/eng@2025-11-05 3

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Court yet the Plaintifis’ counsel variously notified him of the subsequent dates as disclosed in afidavits of service sworn on 28th August 2024, 11th October 2024, 27th June 2025, among others. 13. It worth to note that the other suit namely Oyugis PMCC No, 114 of 2014 involving the same subject matter the same parties and featured in the pleadings and the testimony of PW1, was dismissed for want of prosecution as per the proceedings of 1st November 2018 therein. 14. It is trite law that the issues for determination in a suit generally fiow from either the pleadings or as framed by the parties for the Court’s determination; see Galaxy Paints Company Ltd-vs-Falcon Guards Ltd (2000) eKLR. 15. I have duly considered the parties’ respective pleadings and evidence as well as the plaintifis’ submissions. So, the issues for determination are captured in a statement of agreed issues dated 6th July 2015 duly signed by both parties and are condensed to whether; 1. The parent land registered in the name of Deceased-1 arose and/or resulted from the Adjudication and Demarcation Process at Kamuma Adjudication Section (Now Registration Section) was succeeded by Deceased-2 followed by PW4 then sub-divided giving rise to the 1st, 2nd. 3rd and 4th suit parcels of land respectively. 2. The 1st to 4th suit parcels of land lawfully belong to the Plaintifis who have acquired legitimate rights thereon upon sub-division of the parent land, mutation, resultant creation of the said parcels and transfer of the same to the plaintifis. 3. Plot Number 38, Oyugis Town, does exist. 4. The parties are entitled to the prayers in their respective pleadings. 16. On the first issue, the evidence of PW1 was that the parent land was registered in the name of Deceased-1 then Deceased-2 whose estate was succeeded by PW4 following adjudication process in Kamuma Adjudication Section. (P Exhibit 1) being the certificate of confirmation of grant in Succession cause No. 25 of 1996 dated 17th October 1996, ascertains unequivocally that the Estate of Deceased-1 was issued to Decease-2. 17. The testimony of PW1 was corroborated by PW2, PW3 and PW4 who confirmed the processes including sub divisions, transfer and registration of the 1st to 4th suit parcels of land as per P Exhibits 1 to 15, 18 to 29 and others. Indeed. It is evident from P Exhibit 31 produced by PW3 that the parent land which is the origin of the 1st to 4th suit parcels of land, was initially registered in the name of Deceased-1 and was distinct and separate from LR No. Central Kasipul/Kamuma/1180 but border each other. 18. Moreover, in cross examination, PW1 testified in part; “ ….the other plaintifis and myself took process of obtaining title deeds to the four sub divisions of the original parcel of land herein….” 19. Concerning the second issue, the 1st Plaintifi proved ownership by green card (P Exhibit 6) and title deed (P Exhibit 14) that the 1st suit parcel was registered on 7th October 2014 under the name Andrew Otieno Ogwang ID No. 10XXXXXX who sold it to him. The other plaintifis including PW1 proved their respective ownership of the 2nd to 4th suit parcels by (P Exhibits 7 to 15, 18 to 29 and 31). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7714/eng@2025-11-05 4

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20. Section 26(1) of the Land Registration Act 2016 (2012) states; “ 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…” 21. PW3 stated in P Exhibit 31 that he established that the 1st to 4th suit parcels of land belong to the Plaintifis. That a petrol station and temporary structures stand thereon hence, trespass as also established by way of P Exhibit 30. 22. The Plaintifis have produced P Exhibits including certificates of oficial searches, green cards and title deed all to prove that they are rightful proprietors of the 1st to the 4th suit parcels of land. 23. As regards the third issue, by the Preliminary Index Diagrams-PID (P Exhibits 33, 34, 35 and 36) and that P Exhibit 34 and 35 capture Plot No. 38 Oyugis Town and the suit parcels of land respectively, that Plot 38 Oyugis Town does not exist. In examination in chief, PW2 referred to PID 28 (P exhibit 34) and stated; “ …According to plot No. 38. The same is far from the disputed site. It is found in sheet No. 28 in a difierent location.” 24. Under cross examination, PW2 stated that Oyugis Town is found in P Exhibits 35 and 36 and petrol station is located on top of the suit parcels of land and did demonstrate graphically thereof in court. In re-examination, PW3 afirmed that he visited the disputed land further to a court order. That Plot No. 38 is shown in PID 26 (P Exhibit 34) and that it is not adjacent to the 1st to the 4th suit parcels of land. 25. Further, having considered the evidence of the two experts namely PW2 and PW3 alongside the testimonies of PW1 and PW4, the same are firm and cogent with no contrary opinion as observed in the case of Kimatu Mbuvi t/a Kimatu Mbuvi & Bros-vs-Augustine Munyao Kioko (2007) 1 EA 139 where the Court of Appeal held“ ….....such opinions are not binding on the court although they will be given proper respect particularly where there is no contrary opinion and the expert is the expert is properly qualified……consideration alongside all other available evidence……” 26. As regards the fourth issue, the Plaintifis have established by their testimonies including P Exhibits 30 and 31 that the Defendant is a trespasser thereon. Therefore, they are entitled to the two declaration orders, eviction order and a permanent preservation order over the 1st to 4th suit parcels of land as sought in the plaint in line with section 13 (7) of the Environment and Land Court Act 2015 (2011). 27. The Plaintifis sought mesne profit for trespass, a term defined under section 2 of the Civil Procedure Act Chapter 21 Laws of Kenya as the compensation by a person who is illegally occupying or wrongfully in possession of immovable property to the rightful owner. I note that Order 21 Rule 13 of the Civil Procedure Rules 2010 stipulates the legal framework for award of this relief by the court. 28. 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; see Christine Nyanchama Oanda-vs-Catholic Diocese of Homa Bay Registered Trustees {2020} KECA 536 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7714/eng@2025-11-05 5

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29. It is settled law that the burden of proof is always on the Plaintifi to establish his or her case on a balance of probabilities. That burden is not lessened even if the case proceeded by way of formal proof; see Karugi & another-vs-Kabiya & 3 others {1983} KECA 38 (KLR). 30. It is therefore, the considered view of this Court that the Plaintifis have established that they are the proprietors of the 1st, 2nd. 3rd and 4th suit parcels of land through existence of title deed and certificates of oficial search lawfully, procedurally and free from any encumbrances as held in the case of Munyu Maina-vs-Hiram Gathiha Maina 2013 KECA 94 (KLR). The Plaintifis’ is firm, cogent and established against the Defendant on a balance of probabilities. 31. The Defendant’s counsel partly participated in the trial as already stated in paragraph 3. However, the Defendant has failed to ofier any evidence and distinctly prove a major component of the claim namely fraud as pleaded in the counter claim; see Kuria Kiarie & 2 others-vs-Sammy Magera {2018} KECA 467 (KLR). On that score, the counter claim against the Plaintifis has not been proved against the Plaintifis in respect of Plot No. 38 Oyugis Town to the requisite standard. Thus, it must fail. 32. Wherefore, I render final orders thus; 33. a. 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 as stated in paragraph 1 (i) (ii) (iii) and (iv) hereinabove but eviction be carried out as prescribed. b. The defendant’s counter claim dated 3rd April 2015 and amended on 4th February 2022, be and is hereby dismissed. c. 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. It is so ordered. DATED AND DELIVERED VIRTUALLY AT KAPSABET THIS 5TH DAY OF NOVEMBER, 2025. ................................................................. HON G M A ONGONDO JUDGE In the presence of; Mr. P. Ochwangi learned Counsel for the Plaintifis Walter Kipkorir, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7714/eng@2025-11-05 6

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