Lake Basin Development Authority v Registered Trustees of the Agricultural Society of Kenya (ASK) & County Government of Bungoma (Interested Party)

2. Lake Basin Development Authority, the Plaintiff, describing itself as a state corporation formed pursuant to the Lake Basin Development Authority Act Cap 422 Laws of Kenya, sued the Defendant over a plot edged red on plan No.W62/2012/2 measuring about 13.4 Ha, over which the Plaintiff claimed to have proprietary rights and interest pursuant to a Letter of Allotment dated 23rd November, 2016 issued by the National Land Commission in respect of which the process of securing the grant was still ongoing. 3. The Plaintiff pleaded that it had been in possession of the suit land from way back in 1984, that in essence the suit parcel had always been public land held, used and occupied by the Plaintiff pursuant to section 62(1)(b) of the Constitution. That the Plaintiff had been using the land to perform its statutory functions under section 8 of the Lake Basin Development Authority Act Cap 442 Laws of Kenya, which includes, but is not limited to, planning for the development of the area and initiating project activities identified from such planning in the area through the government generally. 4. The Plaintiff pleaded further that on the suit land it has an Integrated Technology Transfer Centre (ITTC) which is a ELC 46/2019 JUDGEMENT Page 2

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project with offices, a dairy unit, grazing area and a cultivated pasture area which feeds about 40 dairy cattle and that the activities at the ITTC include offering of Artificial Insemination (AI) services for free, selling bull calves at subsidized rates and training farmer groups and institutions for free, all of which form part of the Plaintiff’s Statutory duty. 5. The Plaintiff’s complaint is that the Defendant, without any consent or authority of the Plaintiff, (through its Agricultural Society of Kenya, WESTERN KENYA/BUNGOMA BRANCH) caused its agents, employees or otherwise people acting with its authority to forcefully hive off and fence the grazing and cultivated pasture area measuring about 20 acres in April 2019 and subsequently commenced ploughing it as from 27 th May, 2019 with the levelling going on to the date of filing suit. 6. That in the course of the trespass, the Defendant destroyed old indigenous trees of sentimental and environmental conservation value and incited the local community, who now also openly graze on the remaining portion of the corporation’s land, thereby causing a risk thereof in terms of disease control on the livestock therein. 7. The Plaintiff therefore seeks orders that; ELC 46/2019 JUDGEMENT Page 3

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a) The court be pleased to issue a mandatory order of injunction directed at the Defendant, its employees, servants or persons acting under its authority, compelling it to stop any activities and to remove its items and machines from the UNSECURED BUNGOMA MUNICIPALITY PLOT MEASURING 13.4 HA ALLOTED TO THE LAKE BASIN DEVELOPMENT AUTHORITY pursuant to Letter of Allotment dated 23rd November, 2016. b) The court be pleased to issue orders evicting the Defendant from UNSECURED BUNGOMA MUNICIPALITY PLOT MEASURING 13.4 ALLOTED TO THE LAKE BASIN DEVELOPMENT AUTHORITY pursuant to Letter of Allotment dated 23rd November, 2016. c) General Damages for trespass. d) Costs of the suit 8. The County Government of Bungoma was, by consent, joined in the suit as an Interested Party. The Interested Party, in response to the Plaintiff's claim, filed the Interested Party’s Statement of Defence and Counterclaim, vide which it denied that the Plaintiff was entitled to the relief sought and averred that ELC 46/2019 the suit land known JUDGEMENT as EAST BUKUSU/WEST Page 4

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SANG’ALO/989 is vested in and held by the Interested Party on behalf of the people of Bungoma for agricultural purposes. The Interested Party further averred that the allotment of the suit land to the Plaintiff by the National Land Commission was irregular, unlawful and unconstitutional as there was no consultation and concurrence with the Interested Party and that the relevant procedure for allotment was not complied with. 9. That since the Interested Party is the registered proprietor of the suit land, it lawfully allocated part of it to the Defendant for agricultural purposes for the benefit of the people of Bungoma County; hence the Defendant’s possession of the suit land does not amount to trespass at all. 10. Vide the counterclaim, the Interested Party sought for cancellation/nullification of the allotment of the suit land to the Plaintiff and costs of the suit. 11. The Defendant filed Defendant’s Statement of Defence dated 7th July, 2022, vide which it denied the Plaintiff’s claim. Although the Defence was subsequently amended and replaced with a Defence and counterclaim, the counterclaim was later abandoned. ELC 46/2019 JUDGEMENT Page 5

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12. The record shows that vide court order dated 14 th November, 2019, the suit was transferred to the Environment and Land Court, Kisumu for hearing and final disposal for reasons recorded by the trial court. The evidence 13. On behalf of the Plaintiff, one witness, one Ruth Waweru, testified. The witness adopted her witness statement dated 23rd June, 2025 as her evidence in chief. She produced 8 documents as exhibits, as listed in the list of documents dated 29th July, 2019. 14. On cross-examination, the Plaintiff’s witness (PW1) stated that the Plaintiff acquired the land from the Ministry of Livestock through the Lands Commissioner and that they were given the allotment in 2016. That according to the letter produced as Exhibit P5, the Plaintiff was allocated 40 acres and not the entire suit land. That the area of the land allotted to the Plaintiff as per the allotment letter is 13.4 Ha. PW1 stated that she was not aware of any public participation in the allotment of the land to the Plaintiff. ELC 46/2019 JUDGEMENT Page 6

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15. On behalf of the Defendant, Thadeus Peter, who introduced himself as the Branch Manager of the Defendant – Kisumu Branch, testified as DW1. He adopted the contents of his witness statement dated 6th September, 2023 as his evidence in chief. He produced 12 documents as exhibits, as listed on the Defendant’s list of documents dated 6 th September, 2026. 16. DW1 explained that the certificate of official search he produced as an exhibit showed that the entire suit land measuring 25.37 Ha, which is about 63 acres, was registered in the name of the County Government of Bungoma. That the portion allocated to the Defendant was only 15 acres. That the Plaintiff was allocated 33 acres, which is equivalent to 13.4 Ha shown in the Letter of Allotment. That the Defendant was given authority to uproot trees from the land it had been allocated. 17. The Interested Party called no witness. Submissions 18. Parties filed closing submissions. On behalf of the Plaintiff, written submissions dated 5th November, 2025 were ELC 46/2019 JUDGEMENT Page 7

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filed by Amondi & Company Advocates. Written submissions dated 17th December, 2025 were filed by Lilan & Koech Advocates on behalf of the Defendant, while written submissions dated 19th December, 2025 were filed by Ibrahim Alubala Advocates on behalf of the Interested Party. 19. Although the National Land Commission was added as the 2nd Defendant in the counterclaim, it did not file any pleadings or submissions. Issues for determination 20. Having read the pleadings, heard the evidence and read the written submissions filed, I find that the following are the issues that emerge for determination; (a) Whether the Plaintiff was entitled to the entire suit land or only a portion thereof; (b) Whether the Plaintiff has proved that the Defendant trespassed onto its land; (c) Whether the title held by the Plaintiff should be cancelled as prayed in the counterclaims by the Interested Party. (d) What orders to make; ELC 46/2019 JUDGEMENT Page 8

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(e) Costs. Analysis and determination The first issue for determination is whether or not the Plaintiff is entitled to the entire suit land. 21. The Plaintiff described the suit land in paragraph 4 of the Plaint as plot edged red on plan No.262/2012/2 measuring 13.4Ha. In the prayers in the plaint, the Plaintiff referred to the land as UNSECURED MEASURING 13.4HA BUNGOMA ALLOTED TO MUNICIPALITY PLOT THE BASIN LAKE DEVELOPMENT AUTHORITY pursuant to the Letter of Allotment dated 23rd November, 2016. 22. The Interested Party, vide its defence and counterclaim, described the suit land as EAST BUKUSU/WEST SANG’ALO/989 and averred that the same was vested in and held by the Interested Party. 23. The Defendant similarly, vide its defence and counterclaim dated 16th July, 2023, described the suit land as EAST BUKUSU/WEST SANG’ALO/989 and sought orders that the allocation of the same to the Plaintiff be cancelled. ELC 46/2019 JUDGEMENT Page 9

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24. In cross-examination, PW1, the only witness who testified on behalf of the Plaintiff, stated that the whole land measured about 6o acres. That the property was surveyed and that it had a parcel number namely EAST BUKUSU/WEST SANG’ALO/989. 25. From these pleadings and testimony, it is correct to say that the land claimed in the plaint is the same as or part of land known as EAST BUKUSU/WEST SANG’ALO/989. A copy of the certificate of official search exhibited dated 23 rd July, 2018 shows that the land parcel known as EAST BUKUSU/WEST SANG’ALO/989 measuring 25.37 Ha was registered in the name of the County Council of Bungoma on 13th April, 1978. 26. It was submitted on behalf of the Plaintiff that the Plaintiff holds a valid title over the land that it claims, measuring 13.4 hectares, which was allocated to it in 1984. It is clear that the Plaintiff’s claim is to only a portion measuring 13.4 hectares of the suit land and not the entire suit land. The next issue for determination is whether or not the Defendant trespassed onto the suit land. ELC 46/2019 JUDGEMENT P a g e 10

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27. The Plaintiff’s claim is based on the tort of trespass. The Plaintiff pleaded in paragraph 12 of the plaint how the Defendant forcefully hived off and fenced the grazing area and cultivated the pasture area measuring about 20 acres of the suit land and commenced ploughing and levelling from April, 2019. Paragraphs 13 and 14 narrated the loss ensuing from the alleged acts of trespass. 28. PW1 adopted the contents of her witness statement dated 23rd June, 2025 as her evidence in chief. She had rehashed the contents of the plaint in the witness statement. On cross-examination, PW1 stated that she did not know how much land the Defendant holds. That she had not produced any documents to show the boundaries of the land and concluded that, with the documents produced, it was not possible to tell whether the Defendant had trespassed or not. 29. The Defendant denied any trespass onto the suit land. It denied that the Plaintiff has any proprietary interest over the suit land. The Defendant averred that the County Government of Bungoma, being the registered proprietor of the land, granted the Defendant permission/license to utilize a portion of the land pending formalization of the allotment of 15 acres ELC 46/2019 JUDGEMENT P a g e 11

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of land, which process was ongoing at the time of filing the suit. That the Defendant was given authority to uproot seven marked trees to pave the way for the construction of the show infrastructure. 30. DW 1 testified on behalf of the Defendant and stated that the owner of the suit land was the County Government of Bungoma. That the land measured 25.37 hectares, which translates to about 63 acres. That the Defendant was allocated 15 acres and the Plaintiff was allocated 33 acres, which is shown in the Plaintiff’s allotment as 13.4Ha. That the Defendant had not interfered with the portion occupied by the Plaintiff. 31.Trespass to land is constituted by an unjustified interference with the possession of land. In Black’s Law Dictionary, 11th Edition, it is defined as; “a person’s unlawful entry on another’s land that is visibly enclosed. This tort consists of doing any of the following without lawful justification: (1) entering on to land in the possession of another, (2) remaining on the land, or (3) placing or projecting any object on it.” Winfield and Jolowicz on Tort, 12th edition, at page 359, states that: ELC 46/2019 JUDGEMENT P a g e 12

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“trespass to land is the name given to that form of trespass which is constituted by unjustifiable interference with possession of land……it consists of interference with possession.” Section 3 of the Trespass Act, Cap 294 Laws of Kenya provides; “any person who without reasonable excuse enters or remains upon or erects any structure on or cultivates, tills or grazes or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.” The elements of the tort of trespass to land thus include: unauthorized entry onto another’s land, remaining on another’s land without permission, carrying out activities such as cultivating, tilling or even grazing animals, or construction on another’s land without permission or placing /projecting an object over someone’s land without permission. 32. The Plaintiff produced no evidence to show that the Defendant interfered with the 13.4 hectares portion allocated to it. The photographs produced by the Plaintiff do not show that the images depicted therein are of activities carried out unlawfully by the Defendant on the land that the Plaintiff claims. There was no surveyor’s report produced. I find that trespass has not been proved. ELC 46/2019 JUDGEMENT P a g e 13

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The next issue for determination is whether or not the title held by the Plaintiff should be cancelled. 33. In reply to the Plaintiff’s claim, the Interested Party, the County Government of Bungoma, pleaded in paragraph 12 of the Defence and Counterclaim dated 30 th May, 2021 that the purported allotment of the suit land to the Plaintiff by the National Land Commission was irregular, unlawful and unconstitutional as there was no consultation and concurrence of the County Government of Bungoma and that the relevant procedure for the allotment was not complied with. 34. That since the suit property belongs to the Interested Party and is held on behalf of the people of Bungoma County, the same cannot be allotted to the Plaintiff without consulting with and the concurrence of the Interested Party. The Interested Party therefore sought for an order for cancellation/annulment of the allotment of the suit land to the Plaintiff. The Defendant sought similar orders but later abandoned its counterclaim on 22 nd October, 2025, at the close of the evidence of the defence, when Counsel for the Defendant informed the Court that the Defendant was only ELC 46/2019 JUDGEMENT P a g e 14

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proceeding with the Defence as the counterclaim was abandoned. 35. The contained Plaintiff’s response to in Reply Defence the to the counterclaim and was Defence to Counterclaim dated 27th October, 2021. The Plaintiff denied the counterclaim and contended that the allotment was procedural and lawful. 36. The Interested Party called no witness and produced no evidence to prove the allegation of unlawful, irregular and unconstitutional allotment. I find that the allegations have not been proved. Conclusion 37. On the basis of the determination herein, namely that; a. The Plaintiff was allocated only a portion measuring 13.4 hectares of the suit land parcel NO. EAST BUKUSU/WEST SANG’ALO/989, b. Trespass was not proved, c. No basis was established for cancellation of the allocation of a portion of the suit land to the Plaintiff; ELC 46/2019 JUDGEMENT P a g e 15

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the court finds that both the Plaintiff and the Interested Party have failed to prove their claims as contained in the plaint and the Interested Party’s Defence and Counterclaim respectively on a balance of probabilities. 38. For the foregoing reasons; (i) The suit is dismissed. (ii) The counterclaim by the Interested Party is dismissed. (iii) Costs of the suit are awarded to the Defendant to be borne by the Plaintiff. Orders accordingly. Judgment dated and signed at Kisumu and delivered this 24th day of September, 2026, virtually through Microsoft Teams Online Application. E. ASATI, JUDGE. In the presence of: Timothy/Zaddy/Atika … Court Assistants. Obetto for the Plaintiff. ELC 46/2019 JUDGEMENT P a g e 16

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Kitur for the 1st defendant. Malongo for the Interested Party. ELC 46/2019 JUDGEMENT P a g e 17

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