Criticos & another v AIC Makutano & 67 others (Land Case 3 of 2024) (Environment and Land) [2026] KEELC 3529 (KLR)

JAMES FRED NEWTON WANDERA ........................................ 16TH DEFENDANT MBUYUNI WOMEN GROUP ORGANISATION ..................... 17TH DEFENDANT SABASTIAN LETIMIANE MWACHILA .................................... 18TH DEFENDANT PETRO CHIKIRA EDWARD ...................................................... 19TH DEFENDANT EDWARD RASHID MAKORE .................................................... 20TH DEFENDANT JACKSON MATANO FUNDI ....................................................... 21ST DEFENDANT NZIOKI MUTUA MBULU ........................................................... 22ND DEFENDANT BAHATI KINYOKA ...................................................................... 23RD DEFENDANT PROSTUS A. SEBORU .................................................................. 24TH DEFENDANT MUSA SALERI FUNDI ................................................................. 25TH DEFENDANT JOSEPH SALERI FUNDI .............................................................. 26TH DEFENDANT DENNIS MWANGEKA MOMBO ................................................ 27TH DEFENDANT JANET CHILUMO MBWANA ..................................................... 28TH DEFENDANT PASCAL SIO MTULA ................................................................... 29TH DEFENDANT MARTIN MRAMBA ..................................................................... 30TH DEFENDANT NUHU LAYONI ABDULRAHAMAN ......................................... 31ST DEFENDANT MWANATUMU HAMISI .............................................................. 32ND DEFENDANT JARED ONYANSI NYAUNDI ...................................................... 33RD DEFENDANT CLEMENT LENJO ......................................................................... 34TH DEFENDANT ANNABEL RADUMA OJOO ....................................................... 35TH DEFENDANT LIVERSON MARORO .................................................................. 36TH DEFENDANT LINNET NGELE IDAWO ............................................................. 37TH DEFENDANT MWAKULOMBA P. SHETE ......................................................... 38TH DEFENDANT JOSEPH M MWACHILA ............................................................... 39TH DEFENDANT GODWIN MWITI MUGIRA ........................................................ 40TH DEFENDANT ELINA JOHANA MWACHIA ....................................................... 41ST DEFENDANT CHALLA CHEMICALS INTERNATIONAL LIMITED ........... 42ND DEFENDANT DENIS N MUNYI .......................................................................... 43RD DEFENDANT MICHAEL WISO ............................................................................ 44TH DEFENDANT ALFRED ISAACK MNYANYA .................................................... 45TH DEFENDANT CORNEL KINYILI KONGO ........................................................ 46TH DEFENDANT CAROLINE EDINA ATIENO ADHOLA .................................... 47TH DEFENDANT https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 2

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JOHN J SWAI ................................................................................. 48TH DEFENDANT JOHN MUTUA MWANGI ............................................................ 49TH DEFENDANT MARK NGWATI MBITHI ............................................................ 50TH DEFENDANT CHEMOMOBO TECLAH MUKHEBET ...................................... 51ST DEFENDANT ERASTUS A MAROO ................................................................... 52ND DEFENDANT PAUL MWASARU MWAZUMBO ................................................ 53RD DEFENDANT JESMILY WAKESHO MWAZUMBO ........................................... 54TH DEFENDANT NIORAM HOLDINGS LIMITED ................................................ 55TH DEFENDANT JAPHET MNDAMBO BASHARI ................................................. 56TH DEFENDANT TOLOWA RAMAITA .................................................................... 57TH DEFENDANT RENNISON A MWADIME ........................................................... 58TH DEFENDANT RUTH KAMEME ........................................................................... 59TH DEFENDANT JACKSON KIMIRI MSUYA ......................................................... 60TH DEFENDANT MATENGE K NGAU ...................................................................... 61ST DEFENDANT MUTUA MBITHI MBURU .......................................................... 62ND DEFENDANT EPHRAIM NGORIO SIMEON .................................................... 63RD DEFENDANT BENSON KISOMBE MSULA MBEDE ........................................ 64TH DEFENDANT LAND SETTLEMENT FUND BOARD OF TRUSTEES (FORMERLY KNOWN AS THE SETTLEMENT FUND TRUSTEES) ............................. 65TH DEFENDANT THE CHIEF LAND REGISTRAR ............................................... 66TH DEFENDANT THE DISTRICT LAND REGISTRAR, TAITA TAVETA .......... 67TH DEFENDANT AND PROJECT 254 LIMITED ........................................................ INTERESTED PARTY RULING 1. By a Further Further Amended Plaint dated 29th August 2025, the Plaintifis seek inter alia the cancellation of numerous titles held by the Defendants over subdivisions of land known as L.R. No. 10287/4 ("the suit property"), declarations of ownership and trespass, permanent and mandatory injunctions, eviction orders, mesne profits, general and exemplary damages, and, in the alternative, an order directing the Government to indemnify and compensate the 2nd Plaintifi in the sum of Kshs. 320,000,000 within 365 days, in default of which the Chief Land Registrar is to cancel the Defendants’ titles. 2. The suit was originally filed at Mombasa as ELC Suit No. 125 of 2018 and was subsequently transferred and renumbered as VOI ELCLC No. 3 of 2024 before this Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 3

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3. The 1st Plaintifi is the former registered proprietor of the suit property and a director of the 2nd Plaintifi. The 2nd Plaintifi, a limited liability company incorporated under the Companies Act, is the current registered proprietor following a transfer from the 1st Plaintifi on 13th October 2020. 4. The Defendants are sixty-seven (67) in number. The 1st Defendant AIC Makutano is a church and the 2nd Defendant Mubuyuni Primary School an educational institution, both situate on the suit property. The 3rd to 64th Defendants are individuals and companies holding or claiming various subdivided plots. The 11th Defendant is the Attorney General, sued for and on behalf of the Registrar of Titles. The 65th Defendant is the Land Settlement Fund Board of Trustees, formerly the Settlement Fund Trustees (“the SFT”). The 66th Defendant is the Chief Land Registrar and the 67th Defendant is the District Land Registrar, Taita Taveta. There is additionally an Interested Party, Project 254 Limited, which was granted leave to participate in these proceedings. The Plaintifis’ case 5. It was the Plaintifis case that the suit property, L.R. No. 10287/4, measures approximately 410.6 Ha (approximately 1,014.6 acres) and is situate within Taita Taveta County. It was excised from the mother title L.R. No. 10287 (Grant No. I.R. 17933), which measured approximately 35,117 acres and was subdivided into parcels L.R. Nos. 10287/1 through 10287/10, plus the wildlife corridor L.R. No. 24890. 6. The mother title was, from 1975, held by the late George Vasili Criticos the 1st Plaintifi’s father and Her Excellency Mama Ngina Kenyatta as tenants in common in equal shares. Upon the death of George Vasili Criticos, letters of administration issued to the 1st Plaintifi and his siblings Fanny and Gregory Criticos. The siblings subsequently renounced and withdrew their interests, leaving the 1st Plaintifi as sole administrator and beneficiary. Mama Ngina Kenyatta thereafter transferred her interest to the 1st Plaintifi, registered by Entries Nos. 39 and 40 on the Grant on or about 21st September 2017. 7. The 1st Plaintifi admits that he sold L.R. No. 10287/1 (approximately 9,810.8 Ha / 24,293 acres) to the SFT on 9th September 1992 for the establishment of the Lake Jipe Settlement Scheme, at Kshs. 1,175 per acre (total Kshs. 42,400,000), paid by SFT Cheque No. 6912. He also transferred L.R. No. 10287/3 to Jipe Multipurpose Co-operative Society Limited. The wildlife corridor, L.R. No. 24890, was subsequently created out of L.R. No. 10287/1 out of the land already sold to the Government. 8. The Plaintifis’ central contention is that the 1st Plaintifi never sold, surrendered, exchanged, or otherwise parted with the suit property, L.R. No. 10287/4, whether to the Government, the SFT, or anyone at all. 9. The Plaintifis aver that while negotiations had commenced for the 1st Plaintifi to surrender the suit property in exchange for the wildlife corridor L.R. No. 24890, so that the 1st Plaintifi could develop a private game sanctuary, those negotiations were never concluded, no surrender or exchange instrument was ever executed, and no title to the corridor was ever issued to the 1st Plaintifi. 10. The Plaintifis further aver that, in or about 2011 and unknown to them, the SFT illegally and unlawfully purported to consolidate the suit property 10287/4 with L.R. No. 10287/1, thereafter purporting to subdivide the consolidated parcel and allot the resulting subdivisions to the Defendants through parallel and unauthorised proceedings at the District Lands Registry, Taita Taveta, while the Plaintifis’ valid and intact title remained at the Central Lands Registry in Nairobi. 11. The Plaintifis particularise the impugned titles as L.R. Nos. Taita Taveta/Lake Jipe Scheme/397, 714, 779–783, 785, 786, 788–790, 793, 794, 796–799, 802–806, 808–826, 1114, 1194, 1423–1428, 1439– 1443, 1450, 1451, 1493 and 1494. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 4

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12. Before instituting this suit, the Plaintifis served a Notice of Intention to Institute Proceedings on the Attorney General, who wrote to the Principal Secretary, Ministry of Lands and Physical Planning requiring the latter to answer the claim. The notice was received on 5th April 2018. The Attorney General’s subsequent averment in his Defence that no such notice was served is, on the evidence, incorrect. 13. The Plaintifis called four witnesses and relied on extensive documentary evidence. 14. PW1, Basil Criticos, the 1st Plaintifi, gave evidence consistent with the chain of title set out above. He maintained that he sold only L.R. No. 10287/1 to the SFT and transferred L.R. No. 10287/3 to Jipe Multipurpose Co-operative Society, retaining the suit property throughout. He testified that the negotiations for exchange of the suit property for the wildlife corridor were never concluded, that he never executed any instrument of surrender, sale or exchange, that he produced the original certificate of title in court, and that at the date of filing the land constituting the wildlife corridor was owned by Kisima Farms, with whom he has no association. 15. PW2, Kennedy Kubasu, a licensed land surveyor of over 37 years’ standing, proprietor of Highland Surveyors and director of the 2nd Plaintifi, testified that following the subdivision of the mother title, the 1st Plaintifi handed to him the original mother title Grant No. I.R. 17933 and Deed Plan No. 222681 dated 24th February 1999. He stated that Deed Plan No. 222681 was never cancelled and was used to extract title to the suit property, and that it was highly irregular and illegal for the Director of Surveys to subdivide the suit property and prepare a Registry Index Map (R.I.M.) while the said Deed Plan subsisted. He further testified that the oficial survey records of the suit property remain intact at the Survey of Kenya, that there is no evidence at the Central Lands Registry of any of the Defendants’ titles, and that the Defendants’ titles emanate from parallel and illegal proceedings at the District Lands Registry. He confirmed that after the sale of L.R. No. 10287/1 to the SFT and the transfer of L.R. No. 10287/3, the 1st Plaintifi was left with L.R. No. 10287/4. 16. PW3, Isaac Amatasi Andiere, an employee of Highland Surveyors, testified that on 21st September 2017 he personally deposited the original mother title Grant No. I.R. 17933 at the lands ofice at Ardhi House, Nairobi, for the purpose of efiecting transfers and extracting titles, and that he received a booking form of even date. 17. PW4, Geofirey Kiprotich Koross, a registered valuer of Legend Valuers Ltd, testified that he inspected the suit property on 15th July 2025 and valued it at Kshs. 320,000,000 using the Sales Comparable Approach, land in the area selling at between Kshs. 300,000 and Kshs. 400,000 per acre. He confirmed the 2nd Plaintifi as the registered proprietor at the date of inspection and stated that the property was largely vacant save for some areas occupied by squatters. No counter-valuation was produced by any Defendant. 18. The Plaintifis relied, in particular, on an Internal Memo Ref. No. DS/C/17/3/17 dated 9th August 2014, authored by the Director of Land Adjudication and Settlement and produced by the Attorney General himself, which records that the Government negotiated for and purchased 24,293 acres from L.R. No. 10287 with SFT funds, that this land was issued as L.R. No. 10287/1, and significantly that “the rest of the land remained with Basil Criticos.” The memo further records that allocations under the scheme were completed in 2001/2002 and title deeds issued in September 2013. Crucially, the memo makes no mention of any exchange of the suit property or of L.R. No. 10287/4. 19. In their written submissions dated 6th March 2026, filed by Prof. Albert Mumma & Company Advocates, the Plaintifis frame three issues for determination: whether they own or sold the suit property; whether they exchanged it for the wildlife corridor (L.R. No. 24890) and whether the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 5

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Defendants’ titles are illegal, null and void; and whether they are entitled to the reliefs sought. They submit that the 1st Plaintifi sold only L.R. No. 10287/1 to the SFT and transferred L.R. No. 10287/3 to Jipe Multipurpose Co-operative Society, retaining the suit property throughout, and that no sale, surrender or exchange instrument touching L.R. No. 10287/4 has ever been executed or produced. Relying on Tsavo Academy Company Limited & Another v Voi Development Company Limited (Civil Appeal E034 of 2023) [2025] KECA 2231 (KLR), they contend that a disposition of land must be efiected by a formal written agreement signed and attested in compliance with section 3(3) of the Law of Contract Act, so that the burden lies on the Defendants to prove the alleged sale or exchange, which burden they have failed to discharge. They submit that the negotiations for exchange of the suit property for the wildlife corridor were never concluded, the corridor having in any event been created out of L.R. No. 10287/1 which had been sold to the Government, and they place reliance on Republic v Chief Land Registrar & Another ex parte Hon. Basil Criticos & Another (Judicial Review Misc. Application No. E011 of 2023) [2025] KEELC 8680 (KLR) and Kiragu v Muriithi (Environment and Land Appeal E023 of 2021) [2026] KEELC 648 (KLR) for the proposition that an intention to exchange that did not crystallise into a completed reciprocal transaction confers no enforceable right. They contend that the Defendants’ titles, created between 11th November 2011 and 15th April 2019 through parallel and unauthorised registrations at the Taita Taveta District Lands Registry while the Plaintifis’ valid title remained intact at the Central Lands Registry, ought to be cancelled under section 80 of the Land Registration Act; that trespass to land being actionable per se, a sum of Kshs. 20,000,000 be awarded as general damages for trespass; and that, in the alternative, the 11th, 65th, 66th and 67th Defendants be ordered to indemnify the 2nd Plaintifi in the sum of Kshs. 320,000,000, being the market value assessed by their valuer, within 365 days, in default of which the impugned titles be cancelled. The Defendants’ case The case of the 11th, 65th, 66th and 67th Defendants 20. The Attorney General, on behalf of the 11th, 65th, 66th and 67th Defendants, contends that the suit property was lawfully exchanged with L.R. No. 24890 the wildlife corridor, such that the Plaintifis’ proprietary interest in L.R. No. 10287/4 was extinguished. They called one witness, Mr. Philemon Kibet Mutai, Assistant Director of Land Adjudication and Settlement, Taveta Station, who produced oficial government records. 21. Their case, as amplified in its submissions, is built on three principal pillars: (a) that there was a binding and enforceable agreement founded on the correspondence and conduct of the parties between 1993 and 2000; (b) that the conduct of the 1st Plaintifi gave rise to a constructive trust and proprietary estoppel in favour of the Defendants and the settlers; and (c) that to allow the Plaintifis to reclaim the land would amount to unjust enrichment at public expense. 22. On ofier and acceptance, it points to: (i) the 1st Plaintifi’s advocates’ letter of 17th August 1993 proposing to exchange the suit property for the wildlife corridor; (ii) his letter of 22nd September 1993 reiterating the proposal; (iii) the meetings of 17–20th January 1994 at which government oficers attended a site inspection; (iv) the letter of 22nd January 1996 from KWS accepting the proposed animal corridor; (v) the letter of 5th March 1996 from the Director of Land Adjudication and Settlement accepting the proposal; and (vi) the letter of 14th March 1996 obligating the 1st Plaintifi to transfer the suit property to the SFT. They also relies on the fact that public funds of Kshs. 200,000 were released by cheque on 29th April 1996 for the demarcation and survey of the corridor and the alternative land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 6

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23. On constructive trust and proprietary estoppel, they rely on Maina & 87 Others v Kagiri (Civil Appeal 6, 26 & 27 of 2011) [2014] KECA 880 (KLR) and the Supreme Court decision in Arvind Shah & Others v Mombasa Bricks & Tiles Ltd & Others (SC Petition 18 (E020) of 2022) [2023] KESC 106 (KLR), arguing that the 1st Plaintifi induced the creation of the wildlife corridor out of land already earmarked for settlers, ofiered the suit property in exchange, allowed the Government to expend public funds on survey and demarcation, and then sought to resile from the arrangement conduct giving rise to an equity that this Court ought to enforce. 24. On unjust enrichment, they submit that to permit the Plaintifis to retain both the benefit of having the wildlife corridor created for their exclusive use and enjoyment and the suit property would be manifestly unconscionable, contrary to the principles afirmed in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & Another (HCCC No. 1263 of 1992) [2003] eKLR, and contrary to Article 201 of the Constitution on prudent use of public resources. 25. They additionally challenged the authenticity of the Plaintifis’ title, pointing to an alleged discrepancy in dates: the mother title L.R. No. 10287 bears the date 1st December 1952, but the Plaintifis’ title for the suit property L.R. No. 10287/4, being a subdivision, bears the earlier date of 1st February 1952. They further argue that this can only be explained by forgery. They further criticize the Plaintifis’ delay of approximately 26 years in efiecting the transfer of the suit property to themselves the Survey Plan was approved in 1998, the Deed Plan in 1999, but the transfer to the 1st Plaintifi was not registered until 21st September 2017 without explanation. 26. These contentions are developed in the written submissions dated 30th March 2026, filed by the Hon. Attorney General for the 11th, 64th, 65th, 66th and 67th Defendants. On the existence of a binding agreement, they submit that an enforceable contract need not be contained in a single formal document and that the intention and conduct of the parties may constitute one, relying on William Muthee Muthami v Bank of Baroda [2014] KECA 591 (KLR) for the elements of ofier, acceptance and consideration, and on Timau Agro Industries Limited v National Oil Corporation of Kenya [2025] KEHC 2547 (KLR) for the proposition that a valid contract may be inferred from the conduct of and communications between the parties. They identify the ofier as the 1st Plaintifi’s letters of 17th August 1993 and 22nd September 1993 and the meetings of 17th–20th January 1994 and 11th March 1996; the acceptance as the Kenya Wildlife Service letters of 22nd January 1996 and 5th March 1996 and the Director of Land Adjudication and Settlement’s letter of 14th March 1996; and the consideration as the 1st Plaintifi’s ofier of L.R. No. 10287/4 in exchange for the corridor, consummated by the release and utilisation of public funds (Kshs. 200,000 by cheque dated 29th April 1996) for demarcation and survey, evidencing consensus ad idem. On constructive trust and proprietary estoppel, while conceding that these were not pleaded, they urge the Court to infer a trust from the exceptional circumstances, relying on Maiyebei v Chesebe (Environment and Land Appeal E022 of 2023) [2025] KEELC 5294 (KLR), Arvind Shah & Others v Mombasa Bricks & Tiles Ltd & Others (SC Petition 18 (E020) of 2022) [2023] KESC 106 (KLR), Maina & 87 Others v Kagiri [2014] KECA 880 (KLR) and Kitilit v Kibet (Civil Appeal 51 of 2015) [2018] KECA 573 (KLR), contending that the 1st Plaintifi induced the creation of the corridor out of L.R. No. 10287/1 and put the Government in possession of the suit property to resettle squatters. On unjust enrichment, they rely on Samuel Kamau Macharia v Kenya Commercial Bank Ltd & Another (HCCC No. 1263 of 1992) [2003] eKLR, Ochanda v Attorney General & Another [2025] KEHC 18275 (KLR) and Article 201 of the Constitution, submitting that it would be unconscionable and contrary to the prudent use of public resources to permit the Plaintifis to retain both the corridor and the suit property. They further dispute the Plaintifis’ reliance on the Internal Memo of 9th August 2014 (contending it concerns only the earlier sale of L.R. No. 10287/1), maintain that the Plaintifis’ title is a forgery on account of the date discrepancy, criticise the evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 7

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of PW2 as hearsay and the Plaintifis’ failure to enjoin the Director of Surveys, and pray that the suit be dismissed with costs as an abuse of the process of the Court, the balance of convenience and the public interest favouring the settlers who would otherwise be displaced. The Private Individual Defendants (1st–64th Defendants, broadly) 27. The majority of the private Defendants appear to contend that the Plaintifis sold both L.R. No. 10287/4 and L.R. No. 10287/1 to the SFT in 1990, that the two parcels were consolidated to form the Lake Jipe Settlement Scheme, and that the suit property thereby ceased to exist upon its subdivision and allocation to the Defendants. 28. Andrew Jumamosi Masamo 10th Defendant testified for the majority of the private Defendants. He stated that the allocation process began after he received a letter of ofier from the SFT, that he made the requisite payments to the Ministry of Lands, and that his title was transferred to him by the SFT after discharge of a charge on the land. He too claimed that the 1st Plaintifi sold the suit property to the Government in 1990, but could produce no evidence of any such sale agreement. 29. Maria Nareku Jonathan witness for the 17th Defendant, Mbuyuni Women Group, similarly claimed that the 1st Plaintifi, though he originally owned the suit property, sold it to the Government sometime in 1990 to form the Lake Jipe Settlement Scheme. No sale agreement was produced to support this claim. 30. In their written submissions dated 19th May 2026, filed by Sharia Nyange Njuguna & Company Advocates on behalf of the 1st to 39th Defendants (save for the 13th, 23rd, 28th, 33rd, 34th, 35th, 36th, 37th and 38th Defendants) together with the 46th, 56th, 59th, 60th, 61st, 62nd and 64th Defendants, these Defendants frame three issues: whether the Plaintifis are the registered owners of L.R. No. 10287/4; whether the Defendants have trespassed on the suit land; and whether the final reliefs sought can issue. On ownership, they invoke sections 107, 109 and 112 of the Evidence Act and submit that the Plaintifis have failed to prove ownership: the transfer relied upon by PW1 is dated 13th November 1999 yet was lodged on 23rd February 2010, after a lapse of approximately eleven years; the suit property was not among the properties listed in the transfer instrument produced; and PW1 admitted that he produced no copy of the Land Control Board consent, the consent of the Chief Land Registrar, the mutation forms attending the subdivision of the mother title, rates clearance certificates, or any valuation or receipt confirming payment of stamp duty. They point to an entry on the document produced as the Plaintifis’ title, at page 18 of the Plaintifis’ list of documents, reading “the above sub divisions comprise the whole area and as such this title is not evidence of ownership” and, relying on Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), submit that a title document is not suficient proof of ownership where the origin of that title has been challenged, the holder being obliged to go beyond the instrument itself and demonstrate that the process of acquisition was legal from inception. On trespass, they rely on section 3(1) of the Trespass Act (Cap. 294), Plenty v Dillon (1991) 171 CLR 635, Entick v Carrington (1765) 95 ER 807 and the Supreme Court of Uganda decision in Justine E.M.N. Lutaaya v Sterling Civil Engineering Co. SCCA No. 11 of 2002, and submit that the Defendants, holding valid titles to their respective parcels, entered thereon with evidence of ownership and cannot be deemed to have trespassed on their own properties; further, that no survey report was produced PW2 and PW1 each conceding as much on cross-examination to demonstrate that the approximately 59 titles sought to be cancelled fall within L.R. No. 10287/4, or the degree and extent of the trespass complained of, citing this Court’s decision in Sagalla Ranchers Ltd v Amos Makalo & 97 Others [2025] eKLR. On the reliefs sought, they submit that the claim is belated, the Defendants’ titles having issued in 2013, the demand letters being dated 3rd April 2018 and the suit having been filed in 2018; that the Land https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 8

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Adjudication Act establishes an elaborate procedure for the determination of claims and objections the Land Adjudication Committee under sections 6 and 9, the Land Arbitration Board on appeal, publication of the adjudication register under section 31 and certificates of finality under section 29(3) which the Plaintifis ought to have invoked instead of awaiting the completion of the process and the issuance of titles before seeking cancellation, relying on Mohammed Ahmed Khalid (Chairman) & 10 Others v Director of Land Adjudication & 2 Others [2013] eKLR; that the transfer of the suit property from the 1st Plaintifi to the 2nd Plaintifi on 13th October 2020, during the pendency of this suit and in the face of status quo orders barring any dealing with the suit property, was in violation of those orders and of the doctrine of lis pendens as expounded in KN Aswathnarayana Setty (D) Tr. LRs. & Others v State of Karnataka & Others [2013] INSC 1069, a defect going to the root of the Plaintifis’ claim and disentitling them to any relief founded on ownership, including trespass and compensation; and that the valuation underpinning the demand of Kshs. 320,000,000 is unreliable, the valuer Mr. Koross having produced no copy of title or certificate of search, claimed that the suit land bore no structures notwithstanding that the 1st Defendant is a church and other Defendants have schools and permanent structures, computed an area of approximately 1,000 acres although the 59 impugned titles do not, in combination, amount to that acreage, and produced no comparable sale agreements or ministry valuations to support the adopted rate of Kshs. 315,581 per acre, the opinion of an expert being in any event not conclusive. They pray that the suit be dismissed with costs. The 13th Defendant Marion Atieno Moon 31. The 13th Defendant, Marion Atieno Moon, was subsequently joined to these proceedings by a Ruling dated 24th February 2022. Through her Amended Statement of Defence dated 18th January 2024 and Witness Statement dated 23rd June 2025, she has consistently maintained that she has never, in her personal capacity, held any proprietary, possessory, beneficial or occupational interest in the suit property or any of its alleged subdivisions; that she has never trespassed upon, occupied, encroached on, constructed upon, or in any manner dealt with the suit property; and that no demand or notice of intention to sue was served upon her before she was joined to these proceedings. She prays that the suit against her be dismissed with costs. 32. In her written submissions dated 30th April 2026, filed by Busaidy Mwaura Ouma & Company Advocates, the 13th Defendant frames five issues: whether the Plaintifis have disclosed and proved any reasonable cause of action against her; whether they have proved any trespass, encroachment, occupation or dealing by her with the suit property; whether they have discharged the burden of proof against her; whether they are entitled to any relief against her; and who should bear the costs as between her and the Plaintifis. She submits that the Further Amended Plaint dated 7th February 2023 identifies her only as an adult female resident of Kenya and pleads no specific act, omission, allocation, title, occupation or interference attributable to her, and that she is conspicuously absent from the list of alleged trespassers at paragraph 33 thereof, so that no reasonable cause of action is disclosed and parties are bound by their pleadings, relying on David Ngugi Waweru v Attorney General & Another [2017] KECA 420 (KLR), DT Dobie & Company (Kenya) Limited v Muchina & Another [1980] KECA 3 (KLR), Order 2 Rule 4 of the Civil Procedure Rules and Independent Electoral and Boundaries Commission & Another v Mule & 3 Others [2014] KECA 890 (KLR). She submits that, although she is associated with the 55th Defendant, Nioram Holdings Limited, the doctrine of separate corporate personality precludes the company’s dealings from being imputed to her personally absent any pleaded or proved basis to pierce the corporate veil, relying on Salomon v A. Salomon & Co. Ltd [1897] AC 22, Victor Mabachi & Another v Nurtun Bates Limited [2013] KECA 204 (KLR) and Riccatti Business College of East Africa Limited v Kyanzavi Farmers Company Limited [2016] KECA 763 (KLR). She submits that the Plaintifis have not discharged the burden of proof under sections 107 to 109 of the Evidence Act, citing Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR), Charterhouse https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 9

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Bank Ltd v Kamau [2016] KECA 153 (KLR) and Palace Investments Limited v Geofirey Kariuki Mwenda & Another [2015] KECA 616 (KLR), and that no relief can fiow against a party against whom no facts are pleaded or proved, relying on Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] KECA 215 (KLR). She prays that the suit against her be dismissed in its entirety with costs, relying for costs on section 27(1) of the Civil Procedure Act, Party of Independent Candidate of Kenya & Another v Mutula Kilonzo & 2 Others [2013] KEHC 413 (KLR) and Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] KECA 373 (KLR). The 55th Defendant Nioram Holdings Limited 33. The 55th Defendant, Nioram Holdings Limited, is registered as proprietor of Title No. Taita Taveta/Lake Jipe Settlement Scheme/1425 ("the Subject Property"), one of the subdivisions expressly challenged in the Plaint. Through its director Marion Moon, who testified as its witness, the 55th Defendant claims to be a lawful and bona fide purchaser for value without notice. 34. The 55th Defendant’s chain of title is as follows: (a) the Subject Property was originally allocated by the Government through the SFT to one James M. Gichohi vide a Letter of Ofier dated 2nd January 1997 in respect of Plot No. 1425 (approximately 5.4 Ha) at Lake Jipe Settlement Scheme; (b) Mr. Gichohi paid the requisite fees and was issued with a Title Deed on 8th August 2013; (c) in 2019, the 55th Defendant entered into negotiations to purchase the Subject Property, conducted due diligence including a Certificate of Oficial Search dated 17th September 2019 confirming Mr. Gichohi as registered proprietor with no encumbrances, obtained Taveta Land Control Board Consent on 16th October 2019, and executed a Transfer of Interest in Land on 6th January 2020 for a consideration of Kshs. 5,000,000; (d) the transfer was registered on 10th February 2020 and a Title Deed issued in the 55th Defendant’s name on 18th February 2020. 35. The 55th Defendant denies that it was party to any fraud, illegality, misrepresentation or collusion. It contends that it conducted all due diligence then required by law, that it was entitled to rely on the oficial government records, and that the Plaintifis failed to plead or prove any particulars of fraud specifically against it. It relies on sections 24, 25 and 26 of the Land Registration Act and the bona fide purchaser doctrine. It further argues that the Supreme Court’s decision in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) does not apply retrospectively to invalidate its 2019–2020 acquisition. The Interested Party Project 254 Limited 36. The Interested Party, Project 254 Limited, was granted leave to participate in these proceedings. It entered into a Sale Agreement dated 4th September 2019 for the purchase of 50 acres (approximately 20.23 Ha) out of the suit property from the 1st Plaintifi. It conducted due diligence confirming the Plaintifis’ clean and unencumbered title as at 25th January 2022. A subdivision scheme prepared by a licensed Physical Planner was approved by the County Government of Taita Taveta, confirming no other subdivisions on the property. The Interested Party supports the Plaintifis’ case in its entirety and prays that all reliefs sought be granted, with additional orders facilitating the completion of its own purchase. 37. In its written submissions dated 11th May 2026, filed by Angaya & Company Advocates, the Interested Party supports the Plaintifis’ case in its entirety and grounds its interest on the Sale Agreement of 4th September 2019 for 50 acres (approximately 20.23 Ha) out of the suit property. It submits that the 1st Plaintifi has been the registered proprietor of the suit property since 1952, that oficial searches confirm the title to be intact and unsubdivided, and that under section 26 of the Land Registration Act, 2012 the certificate of title is prima facie evidence of absolute and indefeasible ownership which may be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 10

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impeached only on proof of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme a burden the Defendants have not discharged. It relies on Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), Freedom Limited v Omar Awadh Mbarak [2026] KESC 2 (KLR), King’ori v Kimani [2026] KEELC 352 (KLR) and Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR). It urges that little or no weight be given to the evidence of Mr. Philemon Kibet Mutai, who was unable to identify the correct L.R. number of the suit property, and submits that, no instrument of surrender, transfer or exchange having been produced, the register speaks for itself. It prays that the Court uphold the Plaintifis’ title to L.R. No. 10287/4, grant the reliefs sought in the Further Amended Plaint, and recognise and protect its equitable and contractual interest by issuing orders facilitating the subdivision and transfer of the contracted 20.23 Ha to it. Issues for determination 38. Having considered the pleadings, the evidence, and the extensive written submissions filed by all parties, the issues that fall for determination are: i. Whether the Plaintifis are the owners of, or sold, the suit property; ii. Whether the Plaintifis exchanged the suit property for the wildlife corridor (L.R. No. 24890), and whether the Defendants’ titles are illegal, null and void; iii. Whether the Plaintifis are entitled to the reliefs sought. Analysis and determination Issue (i): Whether the Plaintifis are the owners of, or sold, the suit property. 39. The burden of proof in civil proceedings lies on the party who asserts as set out in sections 107– 109 of the Evidence Act. The Plaintifis, having asserted ownership, bear the initial evidential burden. Once a registered proprietor produces a certificate of title, however, the burden shifts to the party impugning the title to demonstrate, on a balance of probabilities, the illegality, fraud or other vitiating circumstance alleged. 40. The Plaintifis produced the certificate of title in respect of L.R. No. 10287/4 and traced an unbroken chain of title from the mother title Grant No. I.R. 17933, through the 1st Plaintifi, to the 2nd Plaintifi by transfer registered on 13th October 2020. That documentary chain was corroborated by the survey evidence of PW2 and PW3 and, materially, by the Government’s own Internal Memo of 9th August 2014, which expressly records that only L.R. No. 10287/1 was purchased by the SFT and that the rest of the land remained with Basil Criticos. 41. The Defendants advanced two contentions that are, on their face, mutually inconsistent: that the suit property was sold to the SFT in 1990, and, in the alternative, that it was exchanged for the wildlife corridor. A party cannot simultaneously assert that the same parcel was sold and exchanged; the inconsistency itself weakens the credibility of both contentions. 42. More significantly, no sale agreement, no transfer instrument, and no surrender instrument in respect of L.R. No. 10287/4 was produced by any Defendant. The 10th Defendant, who testified on behalf of the majority of Defendants, could produce no evidence of any sale of the suit property. The Government’s own witness, Mr. Philemon Kibet Mutai, conceded under cross-examination that what existed amounted only to a proposal for exchange. The Interested Party’s evidence further reinforces this: its due diligence as at January 2022 confirmed the Plaintifis’ title intact with no registered encumbrances, subdivisions or adverse entries of any kind. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 11

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43. A disposition of land must satisfy the formalities prescribed by law. As the Court of Appeal observed in Tsavo Academy Company Limited & Another v Voi Development Company Limited (Civil Appeal E034 of 2023) [2025] KECA 2231 (KLR), a contract for the sale or disposition of land must be in writing, signed by the parties and attested, incorporating the essential elements stated in section 3(3) of the Law of Contract Act. There being no such instrument in respect of the suit property, no enforceable disposition of L.R. No. 10287/4 has been established. The same principle governs the Government’s alternative contention that the suit property was surrendered. As the Environment and Land Court (Nzili, J.) recently emphasised in Claassen v Commissioner of Lands & 6 others (Environment & Land Petition 7 of 2015) [2025] KEELC 5287 (KLR) (9 July 2025) (Judgment), the cardinal ingredient of any surrender of a lease is its consensual nature; it is not enough to express an intention to surrender, whether orally or by registration of the word “surrendered” in the register. Under section 44 of the repealed Registration of Titles Act there had to be an endorsement of the word “surrendered” with the date, signed by both lessee and lessor as evidence of acceptance, attested by a witness, and accompanied by actual delivery and acceptance of possession. The court there held that where the lessee’s consent was not lawfully procured and there was no endorsement, witness or attestation, it did not matter that the word “surrendered” had been entered in the register: the registration was a nullity for noncompliance with the law, and the lessee’s interest never passed. The same reasoning applies with full force here, where no surrender or exchange instrument in respect of L.R. No. 10287/4 was executed, endorsed, attested or registered at all. 44. The Government’s challenge to the authenticity of the Plaintifis’ title based on an alleged date discrepancy that the subdivision (10287/4) bears the date 1st February 1952 while the mother title bears the date 1st December 1952 was raised in cross-examination of PW1 but was not supported by any expert evidence, report from the Registrar of Titles, or examination of the original register. The allegation of forgery is a serious one and must be specifically pleaded and strictly proved see the case of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] KECA 223 (KLR). It was not. I decline to draw any adverse inference from a date discrepancy that may have an innocent explanation and that was not independently investigated. 45. I am accordingly satisfied, on a balance of probabilities, that the Plaintifis are the registered proprietors of the suit property and that they did not sell it and hence issue (i) is answered in favour of the Plaintifis. Issue (ii): Whether the Plaintifis exchanged the suit property for the wildlife corridor, and whether the Defendants’ titles are illegal, null and void. 46. The documentary record establishes that there were negotiations for the 1st Plaintifi to exchange the suit property for the wildlife corridor L.R. No. 24890. This is evident from the extensive correspondence on record: the 1st Plaintifi’s advocates’ letter of 17th August 1993, his own letter of 22nd September 1993, the responses of the Director of Land Adjudication and Settlement and the Director of Kenya Wildlife Service, and the Safari Report following the site visit of 17–20th January 1994. 47. The record equally establishes that those negotiations never crystallised into a concluded and enforceable transaction, for the following reasons: (a) The Safari Report of 25th February 1994, produced by the Attorney General himself, recorded no less than five objections to the 1st Plaintifi’s proposal and recommended that the entire matter be referred to the District Development Committee before any conclusions were reached. This was a clear indication that no agreement had been reached as at that date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 12

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(b) Correspondence through 1996 records continuing disagreement over the precise area of the corridor and the question of appropriate compensation. By December 1996 the Kenya Wildlife Service itself acknowledged that alternative land for exchange was “not immediately available” and enquired about other options including refunding the SFT. (c) By letter of 3rd June 1999, the Director of KWS confirmed that he had not yet received any title deed for the wildlife corridor a fact wholly inconsistent with any completed exchange. (d) The Government’s own Internal Memo of 9th August 2014, drafted more than two decades after the alleged exchange, makes no mention whatsoever of any exchange of the suit property. It refers only to the sale of L.R. No. 10287/1. (e) No instrument of transfer, exchange, or surrender of the suit property signed by the 1st Plaintifi was produced. 48. The Government’s contention that the correspondence and conduct of the parties constitute a binding agreement is not well-founded in law. The Government relies on William Muthee Muthami v Bank of Baroda [2014] KECA 591 (KLR) for the elements of a valid contract. While I accept that an agreement need not be in a single formal document, the Land Control Act (Cap. 302) imposes additional requirements for transactions involving agricultural land. Section 8 of that Act requires that consent of the Land Control Board be obtained within six months of the agreement; in default, the transaction becomes void for all purposes, curable only by an application for extension of time to the High Court. No Land Control Board consent for an exchange of the suit property was established, and the agreed transfer to the SFT identified by the Director of Land Adjudication and Settlement as a precondition in the March 1996 correspondence was never efiected. As the Environment and Land Court held in Kiragu v Muriithi (Environment and Land Appeal E023 of 2021) [2026] KEELC 648 (KLR), factual plausibility is not legal enforceability, and an intention to exchange that never crystallised into a completed reciprocal transaction gives rise to no enforceable rights. 49. On constructive trust and proprietary estoppel, I respectfully note that these doctrines were not specifically pleaded by the Government Defendants as their own submissions acknowledge, and equity, though fiexible, proceeds on pleadings. Even on the merits, the conditions for a constructive trust or proprietary estoppel are not met. The 1st Plaintifi made a proposal for exchange; the Government declined or did not complete that proposal; no public funds were expended in reliance on the 1st Plaintifi’s representations as to the suit property specifically the expenditure on demarcation related to the corridor within L.R. No. 10287/1, which had already been sold. As this Court held in Republic v Chief Land Registrar & Another ex parte Hon. Basil Criticos & Another (Judicial Review Misc. Application No. E011 of 2023) [2025] KEELC 8680 (KLR), a contention that land was surrendered does not translate into surrender unless a duly executed surrender instrument is produced, and an intention that did not materialise creates no legal right in favour of third parties. Claassen v Commissioner of Lands & 6 others (supra) is again instructive. There, the State sought to defend its title on the footing that the registered proprietor had surrendered and sold his land through an alleged agent holding a power of attorney. The court held that, once the principal denied donating the power of attorney or authorising the transactions, the burden lay on the party relying on the instrument to prove its existence, due execution and registration, and that an unregistered or unproved power of attorney could not bind the principal or confer authority to surrender, sell or transfer his land. The court further held that where a registered proprietor’s root of title is challenged, it is not enough to dangle the instrument of title as proof of ownership; the party relying on it must go beyond the instrument and demonstrate that the acquisition was legal, formal, procedural and lawful. In the present case the position is even starker: the Government produced no instrument of any kind no power of attorney, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 13

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no sale agreement, no transfer and no surrender touching L.R. No. 10287/4, and its own witness conceded that what existed was no more than a proposal for exchange. 50. The unjust enrichment argument likewise fails. The wildlife corridor, L.R. No. 24890, was created out of L.R. No. 10287/1, which was the land sold to the Government. The 1st Plaintifi proposed that the corridor be transferred to him in exchange for the suit property, but that exchange was not completed. There is no evidence that the 1st Plaintifi has actually derived any benefit from the corridor. He cannot be said to be unjustly enriched by retaining land he never parted with. 51. It follows that the 1st Plaintifi, having neither sold nor exchanged nor surrendered the suit property, never parted with ownership. The Government, whether through the SFT, the Chief Land Registrar or the District Land Registrar, had no lawful or legal authority to consolidate the suit property with L.R. No. 10287/1, to subdivide the consolidated whole, or to allot the resulting parcels to the Defendants, without following due process and without prompt and just compensation to the Plaintifis. 52. The survey evidence of PW2 confirms that Deed Plan No. 222681, on which the suit property was extracted, was never cancelled. The preparation of a Registry Index Map and the creation of titles at the District Lands Registry, in parallel to and in deliberate disregard of the Plaintifis’ subsisting title at the Central Lands Registry, were irregular and unlawful. The Government’s own witness was unable to produce any oficial survey records or central registry entries supporting the Defendants’ parallel titles. The Interested Party’s independent searches confirmed the same. 53. The Defendants’ titles, having been carved out of the Plaintifis’ suit property through an unlawful consolidation, subdivision and allocation, were obtained by mistake and without lawful authority within the meaning of section 80 of the Land Registration Act, Cap. 300. They are not protected by the proviso protecting a bona fide proprietor in possession for valuable consideration, because the root of the Defendants’ titles is itself void nemo dat quod non habet and a title taken from an entity (the SFT) that had no authority over the suit property cannot confer good title. This accords with Claassen v Commissioner of Lands & 6 others (supra), in which the court, applying Macfoy v United African Co. Ltd [1961] 3 All ER 1169, held that a nullity is a nullity, that the respondents had no good title to pass to any of the alleged third parties, and that the court could not sanction or assist in perpetuating an illegality. So too here: the SFT having had no title to L.R. No. 10287/4, the parallel allocations carved out of it were void, and no derivative title taken under them however many transfers later can defeat the Plaintifis’ subsisting title. 54. I have carefully considered the position of the 55th Defendant Nioram Holdings Limited. As the Supreme Court made clear in Dina Management Limited (Supra) the protection of Article 40 of the Constitution does not extend to unlawfully acquired property, and a registered proprietor may be required to go beyond a bare instrument of title and demonstrate the legality of how title was acquired. The 55th Defendant has presented a documented chain showing allocation to James M. Gichohi in 1997, issuance of title in 2013, an oficial search in 2019, a compliant transfer process in 2019–2020, and registration as proprietor in February 2020. On its face, the 55th Defendant conducted the due diligence required of a prudent purchaser under the law as it stood at the time of acquisition. 55. However, the protection conferred by the bona fide purchaser doctrine and by sections 24, 25 and 26 of the Land Registration Act has limits. Section 26(1)(b) provides that title may be impeached where “the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” The root of the 55th Defendant’s title the original allocation of the suit property by the SFT was itself unlawful because the SFT had no authority over L.R. No. 10287/4, which was never sold, surrendered or transferred to it. As the Supreme Court noted in Dina Management case (Supra), interrogation of root title is necessary where circumstances so require. Here, the rot in the chain of title originated at https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 14

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the very first link: the SFT’s purported allocation of a parcel it did not own. That fundamental defect cannot be cured by a subsequent purchaser’s good faith, however impeccable the due diligence at the transaction level may have been. There is no evidence that the Plaintifis took any step that could have put the 55th Defendant on notice; it was the Government’s own parallel registry system that created the false appearance of a clean title. In those circumstances, the remedy for the 55th Defendant, if any, lies against the Government entities that caused the defective title to be issued and registered, not against the true owner. 56. Issue (ii) is answered in favour of the Plaintifis: there was no completed exchange, and the Defendants’ titles are illegal, null and void. Issue (iii): Whether the Plaintifis are entitled to the reliefs sought Cancellation of title and rectification of the register 57. Section 80 of the Land Registration Act, empowers the Court to order rectification of the register by directing the cancellation of any registration obtained or made by fraud, mistake or omission. I have found that the Defendants’ titles were created by the unlawful and mistaken consolidation, subdivision and allocation of the Plaintifis’ suit property. The Plaintifis are accordingly entitled to an order directing the Chief Land Registrar and the District Land Registrar, Taita Taveta, to cancel all the impugned titles. The manner in which that entitlement is given efiect having regard to the position of the occupants and the public interest discussed below, and to the Plaintifis’ own alternative prayer for compensation is set out in the orders that follow, in which the cancellation and rectification of the register operate in default of payment of the indemnity. 58. As to the contention that the private Defendants are innocent allottees who had no knowledge of the defect and made valuable payments, I note that the proviso to section 80(1) protects a bona fide purchaser in possession for value who did not have knowledge of, cause or substantially contribute to the fraud, mistake or omission. However, where the root of title is void because the allotting authority itself had no title to allot the protection of a subsequent purchaser is unavailing against the true owner: the true owner’s title was never defeated. In any event, the Defendants had the means to discover the defect by conducting a search at the Central Lands Registry, which would have revealed the Plaintifis’ subsisting and undisturbed title. Trespass and general damages 59. Trespass to land is actionable per se, without proof of actual damage see the cases of David Kimugun Koskei v Benjamin Tuwei & Another [2019] eKLR; Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR. The Plaintifis established that a section of the Defendants entered upon, occupied and, in some instances, constructed structures on the suit property without colour of right, beginning in or about March 2017. The 4th, 5th, 6th, 7th, 9th, 10th, 14th, 15th, 16th, 17th, 18th, 19th, 21st, 22nd, 23rd, 25th, 26th, 27th, 30th, 33rd, 34th, 35th, 43rd, 44th, 45th, 46th, 47th, 49th, 50th, 55th, 56th, 57th, 59th, 60th, 61st, 62nd and 64th Defendants, having been identified as trespassers at paragraph 33 of the Further Further Amended Plaint, are liable in trespass. As Nzili, J. observed in Claassen v Commissioner of Lands & 6 others (supra), trespass to and unlawful invasion of private land finds its constitutional anchor in Article 40 of the Constitution, which protects the proprietor’s security in his land against unjustified intrusion by both State and non-State actors; and an unauthorised entry that remains in place is a continuing trespass that is not defeated by the passage of time. The defect of title at the root of the Defendants’ occupation deprives them of any justification for that occupation, and it cannot be cloaked with the protection of Article 40, which does not extend to land unlawfully acquired. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 15

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60. The 1st Defendant AIC Makutano and the 2nd Defendant Mubuyuni Primary School/Mbuyuni Sunrise Academy were not found to hold registered titles from the suit property as at the date of the oficial searches conducted by the Plaintifis. The claim against them is confined to trespass and eviction. 61. In assessing general damages for trespass, I take into account the extent of the suit property (approximately 1,014 acres), the duration of the trespass commencing March 2017 and continuing, the largely rural and agricultural character of the land, and the award of Kshs. 10,000,000 approved for similar large-chunk rural land in Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited [2019] eKLR. The Plaintifis submitted for Kshs. 20,000,000. I award general damages for trespass of Kshs. 10,000,000, which is considered fair and reasonable payable by the 4th, 5th, 6th, 7th, 9th, 10th, 14th, 15th, 16th, 17th, 18th, 19th, 21st, 22nd, 23rd, 25th, 26th, 27th, 30th, 33rd, 34th, 35th, 43rd, 44th, 45th, 46th, 47th, 49th, 50th, 55th, 56th, 57th, 59th, 60th, 61st, 62nd and 64th Defendants, jointly and severally. The 13th Defendant 62. The claim against the 13th Defendant, Marion Atieno Moon, is dismissed. The Plaintifis failed to plead or prove any specific act, omission, transaction, occupation, trespass or encroachment attributable to her personally. She is not named among the alleged trespassers in the Plaint. The association between her and the 55th Defendant Nioram Holdings Limited does not, without more, create personal liability; the principle of separate corporate personality is well settled See the case of Salomon v A. Salomon & Co. Ltd [1897] AC 22. No basis for piercing the corporate veil was pleaded or proved. The 13th Defendant is entitled to her costs. Alternative claim for indemnity and compensation 63. Before settling the form of relief, I must address the principle that governs the choice between restoring the suit property to the Plaintifis in specie and compensating them for its value. The Plaintifis, having established an unbroken and subsisting title, are prima facie entitled to recover their land: ownership ordinarily carries with it the right to possession, and the cancellation of titles unlawfully carved out of a proprietor’s land is the natural consequence of a finding that those derivative titles are void. I keep that starting point firmly in view, as I do the constitutional protection of the Plaintifis’ property under Article 40 of the Constitution. The question before me is therefore not whether the Plaintifis are entitled to a remedy they plainly are but which of the remedies open to this Court will, on the peculiar facts of this case, do complete justice between all the parties without visiting fresh and disproportionate injustice upon others. It is a settled maxim that equity will not sufier a wrong to be without a remedy ubi jus ibi remedium; but the remedy a court of equity fashions must be measured to the wrong, and no larger. 64. The statutory foundation. The first source of this Court’s remedial power is statutory. Section 80 of the Land Registration Act, empowers the Court to order rectification of the register by cancelling any registration obtained or made by fraud or mistake. The power is discretionary: the section provides that the Court may so order, not that it must. Sections 81 and 82 then confer upon any person who sufiers damage by reason of such rectification or by reason of a mistake or omission in the register a right to be indemnified by the Government, the measure of that indemnity being the value of the land, ordinarily its market value, save where the person claiming has himself caused or substantially contributed to the damage by fraud or negligence. The statutory scheme thus proceeds upon an explicit premise: that the disturbance of registered titles and the payment of compensation at market value are two faces of the same remedial coin. Parliament did not treat cancellation as the sole or invariable response to a defective register; it deliberately paired the power of rectification with a right to monetary indemnity, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 16

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precisely because it recognised that in some cases money, rather than the reversal of the register, will be the just outcome. The Plaintifis fall squarely within the protected class under section 81: the damage to their proprietary interest was occasioned not by any fault of theirs, but by the unlawful acts of the State organs, and the statutory exception for fraud or negligence on the part of the claimant has no application to them. 65. Compensation in lieu of disturbance is a recognised course including in this county. That a court may, in a proper case, decline to disturb the register and instead direct compensation is neither novel nor exceptional; it has been recognised within this very county. In Republic v Land Registrar, Taita Taveta District & Another [2015] eKLR the Court observed that the Government may not unilaterally revoke title but must move the Court for appropriate orders, and that considerations of public interest may properly be used by the Court, in an appropriate case, either in making an order for cancellation of title or in authorising the continued holding of the land subject to due compensation. The same reasoning underlies the established line of authority in which this Court has compelled the Government to indemnify parties where the defect in title is traceable to a mistake on the part of the State, granting indemnity even to holders whose titles, though regularly acquired at the transaction level, were not good in their root. The thread common to these authorities is plain: where the State’s own conduct has produced the defective register, the law looks first to the State to make the loss good in money, rather than visiting the consequences of the State’s wrong upon parties who neither caused nor contributed to it. 66. Equitable relief does not issue as of right where compensation is adequate. The principal coercive reliefs sought by the Plaintifis a permanent injunction and an order of eviction are equitable in nature, and equitable relief does not issue as of course. It is trite that an injunction is a discretionary remedy, to be granted on settled principles, and that where an award of damages would adequately compensate the injury complained of, the more drastic equitable relief will ordinarily be withheld: Giella v Cassman Brown & Co. Ltd (1973) EA 358; and, in the Court of Appeal, Nguruman Limited v Jan Bonde Nielsen & 2 Others (Civil Appeal No. 77 of 2012) [2014] eKLR, where the Court reafirmed that injunctive relief will not go where the injury can be adequately remedied by damages and the party liable is able to pay. The like principle governs specific performance, which is refused where an adequate alternative remedy exists or where the order would occasion severe hardship: See the case of Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Ltd [2006] eKLR. In the present case the adequacy of a monetary remedy is established on the Plaintifis’ own evidence: their valuer fixed the market value of the suit property at Kshs. 320,000,000; that valuation was unchallenged by any counter-valuation; and it was that very figure which the Plaintifis themselves prayed for in the alternative. Where a proven owner has placed before the Court, on oath and through an uncontroverted valuation, the precise sum that he says represents the full value of his land, the Court is entitled to conclude that payment of that sum is an adequate and complete vindication of the proprietary right. 67. The Plaintifis’ own election: he who seeks equity must do equity. Decisively, the order I propose to make is the very order for which the Plaintifis themselves prayed in the alternative. The maxim that he who seeks equity must do equity, and the cognate principle that a litigant is held to the case and the reliefs he has elected to lay before the Court, both point the same way. The Plaintifis cannot be heard to complain that they have been granted, as the primary relief, the precise sum they invited the Court to award in the alternative; nor can any Defendant be heard to say that the Plaintifis are overcompensated when they are to receive no more than the value the Plaintifis themselves placed upon the land. Equity looks to the substance and intent of a party’s prayer rather than to its form, and the substance of the Plaintifis’ alternative prayer is an election that, if the land cannot conveniently be restored, its full market value will sufice to make them whole. I hold them to that election, which they made deliberately and upon professional advice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 17

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68. Proportionality, the public interest and innocent third parties. The choice of remedy cannot responsibly be made without weighing the wider public interest and the position of the many persons in occupation of the suit property, a substantial number of whom are innocent of any wrongdoing. The occupants include a church the 1st Defendant, a primary school the 2nd Defendant, settlers placed on the land under a Government settlement scheme, and at least one purchaser which, on the evidence, took its plot for value after conducting the due diligence then required of it the 55th Defendant. The Supreme Court has repeatedly enjoined that the remedial discretion of the courts be exercised with rationality and proportionality, and that compensation be just and appropriate to the circumstances: See the cases of William Musembi & 13 Others v Moi Educational Centre Co. Ltd & 3 Others (Petition 2 of 2018) [2021] KESC 50 (KLR). In Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others (Petition 3 of 2018) [2021] KESC 34 (KLR) the Supreme Court confirmed that a court is not confined to a single, rigid form of relief but must fashion such appropriate and efiective remedies as the circumstances and the pleadings warrant. This Court adopted precisely such a measured course in Claassen v Commissioner of Lands & 6 others (supra), where, faced with long-standing occupation, absent or wound-up parties, and land partly applied to a public purpose, it awarded damages and allowed a window for regularisation rather than ordering immediate eviction, cautioning that courts must be slow to make orders whose impact on the public and on innocent third parties would be disproportionate. To cancel some sixty titles at a single stroke and to evict a church, a school and a group of settlers, where a complete monetary remedy is available against the wrongdoers, would be to infiict upon the innocent the consequences of a wrong they did not commit. Proportionality forbids it. 69. Aligning the burden of the remedy with culpability. The order I make also has the merit of aligning the burden of the remedy with culpability, and of denying the wrongdoer the fruits of its own wrong. It was the State organs the 11th, 65th, 66th and 67th Defendants that created the parallel register at the District Lands Registry, unlawfully consolidated the suit property with L.R. No. 10287/1, subdivided the whole, and allotted the resulting parcels to others, all while the Plaintifis’ valid title subsisted at the Central Lands Registry. It is they, and not the innocent occupants, who must answer for that wrong. No party may take advantage of its own wrong nullus commodum capere potest de injuria sua propria, and he who comes to equity must come with clean hands a precept that tells decisively against the State Defendants, who seek to retain land obtained through an unlawful parallel process. Casting the primary monetary liability upon the State organs accords with the policy of sections 81 and 82 of the Land Registration Act, under which it is the Government that indemnifies those injured by a defective register, and it is consonant with Article 201 of the Constitution, which subjects the use of public resources to the discipline of accountability including accountability for the State’s own unlawful dealings in land. 70. The order does not act in vain: the proprietary right is preserved, not extinguished. Equity does nothing in vain, and I have framed the order to ensure that the Plaintifis are in no event left without an efiective remedy. The indemnity at full market value is the primary relief; but it is fortified by a default mechanism. Should the State fail to pay the assessed value within the time allowed, the impugned titles are to be cancelled and the suit property is to revert to, and be re-registered in the name of, the 2nd Plaintifi. The Plaintifis are thereby assured of one of two outcomes, each of which fully vindicates their proven title payment of the land’s full market value, or restoration of the land itself, together with interest and the damages already awarded for the trespass sufiered. So understood, the order is not a deprivation of property without compensation contrary to Article 40 of the Constitution; it is the conferment upon the proven owner of the full value of the land, as that owner himself assessed it, with the land held in reserve as security for payment. The constitutional guarantee of prompt and just compensation under Article 40(3) of the Constitution is thus honoured rather than diminished, and the default timeline guards against the risk that the State might delay or decline to pay. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 18

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71. In respect to the valuation, it is noteworthy that the only valuation on record is that of PW4 Geofirey Kiprotich Koross, registered valuer, who assessed the market value of the suit property at Kshs. 320,000,000. That valuation was based on a site inspection of 15th July 2025, the Sales Comparable Approach, and land prices of between Kshs. 300,000 and Kshs. 400,000 per acre in the area. No counter-valuation was produced by any Defendant. I accept this valuation. 72. Conclusion on the form of relief. Weighing all of the foregoing the discretionary character of rectification under section 80 and the statutory pairing of cancellation with indemnity under sections 81 and 82; the discretionary character of injunctive and other equitable relief, which yields where damages are adequate; the Plaintifis’ own deliberate election of compensation in the alternative, pegged to their own valuation; the demands of proportionality and the position of innocent occupants and the public; the propriety of casting liability upon the State organs that authored the wrong; and the need to keep the order efiective and the proprietary right intact I am satisfied that justice between all the parties is best served by making the indemnity at full market value the primary relief, and by leaving the cancellation of the titles and the rectification of the register to operate only in default of payment, consistent with the command of Article 159(2) of the Constitution that this Court administer substantive justice. Accordingly, the primary monetary relief is that the 11th, 65th, 66th and 67th Defendants shall, jointly and severally, pay the 2nd Plaintifi the sum of Kshs. 320,000,000 within the period directed below, in full and final satisfaction of the Plaintifis’ proprietary claim to the suit property; and only in default of such payment shall the Chief Land Registrar and the District Land Registrar cancel the impugned titles and rectify the register, whereupon the suit property shall revert to the 2nd Plaintifi, as directed by the orders below. Eviction and permanent injunction 73. It follows from the reasoning at paragraphs 66 to 72 above that the discretionary equitable reliefs of permanent injunction and eviction ought not, in the circumstances of this case, to issue. The Plaintifis are amply protected by the declarations of ownership, trespass and invalidity; by the award of general damages for trespass; by the primary order for indemnity at full market value; and by the cancellation and rectification of the register in default of payment. To superimpose upon these a perpetual injunction and the immediate eviction of a church, a primary school, a body of settlers and a purchaser for value would be drastic, disproportionate and contrary to the measured approach commended in Claassen v Commissioner of Lands & 6 others (supra) and in the Supreme Court authorities cited above. Mindful of those considerations, and holding the Plaintifis to the alternative for which they themselves prayed, I decline to grant a permanent injunction or an order of eviction. Should the need arise after the register has been rectified or the indemnity satisfied, the parties shall be at liberty to apply for such consequential orders touching possession or the regularisation of the occupants’ status as may then be just. The Interested Party 74. The Interested Party, Project 254 Limited, entered into a Sale Agreement with the 1st Plaintifi on 4th September 2019 for 50 acres (approximately 20.23 Ha) out of the suit property. Having confirmed the Plaintifis’ title to be clean and unencumbered, and having partially performed on that agreement, the Interested Party holds an equitable interest in the contracted portion. This Court recognises that interest. The primary orders made herein, including the cancellation of the Defendants’ illegal titles, will restore the suit property to a state in which the 1st Plaintifi’s pending contractual obligation to the Interested Party can be fulfilled. The parties are at liberty to apply to this Court for ancillary orders facilitating the subdivision and transfer of the contracted 20.23 Ha to Project 254 Limited, following compliance with the applicable planning and conveyancing processes. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 19

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Final orders 75. For the reasons set out above, the Plaintifis have proved their case on a balance of probabilities. I enter judgment for the Plaintifis against the Defendants save for the 13th Defendant in the following terms: (i) A declaration that the 2nd Plaintifi, Kenya Trade & Development Company Limited, is the rightful, lawful and current registered proprietor of all that property known as L.R. No. 10287/4 (approximately 410.6 Ha), and that the Plaintifis neither sold, surrendered, nor exchanged the suit property. (ii) A declaration that the entry upon and occupation of the suit property by those Defendants identified as trespassers at paragraph 61 of this judgment constitutes unlawful trespass and an infringement of the Plaintifis’ constitutionally protected right to property under Article 40 of the Constitution of Kenya. (iii) A declaration that the titles created out of the suit property, being L.R. Nos. Taita Taveta/Lake Jipe Settlement Scheme/397, 714, 779, 780, 781, 782, 783, 785, 786, 788, 789, 790, 793, 794, 796, 797, 798, 799, 802, 803, 804, 805, 806, 808, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 1114, 1194, 1423, 1424, 1425, 1426, 1427, 1428, 1439, 1440, 1441, 1442, 1443, 1450, 1451, 1493 and 1494, are illegal, null, void and incapable of vesting any title or interest in the respective Defendants. (iv) An order that the 11th, 65th, 66th and 67th Defendants do jointly and severally pay to the 2nd Plaintifi the sum of Kshs. 320,000,000, being the prevailing market value of the suit property within three hundred and sixty-five (365) days of the date of this judgment, in full and final satisfaction of the Plaintifis’ proprietary claim to the suit property. (v) For the reasons given in paragraph 66 above, the prayer for a permanent injunction restraining the Defendants from dealing with the suit property is declined. (vi) For the reasons given in paragraph 66 above, the prayer for an order of eviction is declined. The parties shall be at liberty to apply for consequential orders touching possession or the regularisation of the occupants’ status once the indemnity under Order (iv) has been satisfied or the register has been rectified under Order (viii). (vii) General damages for trespass assessed at Kshs. 10,000,000, payable jointly and severally by the Defendants found liable in trespass at paragraphs 59 and 61 above, namely: the 4th Defendant, the 5th Defendant, the 6th Defendant, the 7th Defendant, the 9th Defendant, the 10th Defendant, the 14th Defendant, the 15th Defendant, the 16th Defendant, the 17th Defendant, the 18th Defendant, the 19th Defendant, the 21st Defendant , the 22nd Defendant, the 23rd Defendant, the 25th Defendant, the 26th Defendant, the 27th Defendant, the 30th Defendant, the 33rd Defendant, the 34th Defendant, the 35th Defendant, the 43rd Defendant, the 44th Defendant, the 45th Defendant, the 46th Defendant, the 47th Defendant, the 49th Defendant, the 50th Defendant, the 55th Defendant, the 56th Defendant, the 57th Defendant, the 59th Defendant, the 60th Defendant, the 61st Defendant, the 62nd Defendant and the 64th Defendant. (viii) In default of payment of the sum of Kshs. 320,000,000 under Order (iv) above within the prescribed period of 365 days, the Chief Land Registrar the 66th Defendant and the Taita Taveta Land Registrar the 67th Defendant shall, within ninety (90) days of the expiry of that period, rectify the register by cancelling all the titles listed in Order (iii) above, whereupon the suit property shall revert to and be registered in the name of the 2nd Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 20

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(ix) Costs of the suit are awarded to the Plaintifis against the Defendants save for the 13th Defendant. (x) The suit against the 13th Defendant is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY/OPEN COURT AT VOI THIS 11TH DAY OF JUNE 2026. E.K. WABWOTO JUDGE In the presence of: Counsel for the Plaintifis: Mr. Obok h/b for Prof. Mumma S.C Counsel for the 11th, 65th–67th Defendants: Mr. Kemei Counsel for 1st to 39th Defendants (save for the 13th, 23rd, 28th, 33rd, 34th, 35th, 36th, 37th and 38th Defendants) together with the 46th, 56th, 59th, 60th, 61st, 62nd and 64th Defendants: Mrs. Nyange h/b for Mr.Nyange. Counsel for the 7th and 12th Defendants; Mr. Muye h/b for Mr. Mutubia. Counsel for the 13th and 55th Defendants: Mr. Busaidy. Counsel for the Interested Party: Mr. Esilaba h/b for Mr. Angaya. Court Assistants: Mary Ngoira and David Ngoosa. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3529/eng@2026-06-11 21

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