Mishael Onyango Otieno & Another v Michael Otieno Ojwang' & 2 Others

statutory land adjudication and ministerial appeal, which side ultimately prevails? 2. The Plaintiffs approached this Court via a Plaint dated 9th April 2026, seeking comprehensive declarations of absolute ownership, permanent injunctions, and immediate eviction orders against the 1st Defendant. Conversely, the 1st and 2nd Defendants filed a Statement of Defence and Counterclaim challenging the jurisdiction of this Court, asserting the doctrine of exhaustion of administrative remedies, seeking the nullification of the Plaintiffs' title for grave irregularity, and demanding affirmative reliefs including rectification of the register, eviction under police supervision, and substantial monetary compensation. 2 Background and Historical Context 3. The historical root of the dispute traces back to 1970, when the Plaintiffs' grandfather, Salmon Otieno, moved from Mfangano and settled on the virgin land encompassing the suit property. 4. When rival predecessors attempted an encroachment in 1978, Salmon Otieno successfully instituted legal action, resulting in a ruling on 21st November 1978 by District Magistrate III A. Kosambo in Rongo RMC Land Case No. 12 of 1978 / Kisii RMC Land Case No. 17 of 1978. 5. Subsequent government land adjudication initiatives over the area triggered overlapping claims across parcels 1335, 1336, and 1382. 6. While the 1st Plaintiff secured a title deed for Parcel No. SUBA/KAKSINGRI WEST B/1382 on 29th June 2018, parallel administrative challenges progressed through Objection Panel Case No. 33 of 2019 and culminated in Minister's Appeal No. 184 of 2024 (Appeal Case No. 514/2017). 2|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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7. On 9th April 2025, the Minister delivered a ruling in favour of the defense after conducting a hearing and site visit, which paved the way for the 1st and 2nd Defendants to obtain a joint title deed on 23rd January 2026. 3. Summary of Pleadings, Evidence, and Submissions 8. Plaintiffs' Case: The Plaintiffs relied on witness statements establishing continuous occupation since 1970, historical court judgments, official search records (Form LRA-85), and adjudication tracking records. They accused the Defendants of fraud, collusion, violent trespass, theft of construction materials, and interference with their homestead. They heavily urged the Court to protect their title under Article 40 of the Constitution. 9. Defendants' Case: The Defendants relied on administrative records from the Land Adjudication Board, objection proceedings, and the 2025 Ministerial Appeal decision. They contended that the foundational adjudication process favored their lineage, rendering the Plaintiffs' 2018 title void ab initio and irregular as it was procured pendente lite while active administrative appeals were ongoing. 10.Counterclaim: The Defendants sought recognition of their proprietorship, cancellation of the Plaintiffs' title, rectification of the land register, eviction of the Plaintiffs, and compensation totaling Kshs. 4,000,000 inclusive of monthly accommodation claims. 11.Interlocutory Proceedings: On 9th April 2026, the Court (Dr. Jur. Fred Nyagaka, J.) issued a Status Quo Order directing that the party residing and using the land continue doing so while prohibiting waste or structural changes pending an inter partes hearing. 4. Issues for Determination 3|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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12.Based on the pleadings, evidence, and written submissions, the Court framed the following issues for determination: i) Whether this Court has jurisdiction, in the manner in which the suit has been instituted, to reopen or overturn the concluded land adjudication process and the Ministerial determination. ii) Whether the Plaintiffs' title was acquired irregularly, unprocedural, or pendente lite, and whether a lawful basis exists to cancel the same under the Land Registration Act. iii)Whether the Plaintiffs are entitled to the reliefs sought in the Plaint. iv)Whether the Defendants have established their Counterclaim—including the prayers for declaratory ownership, register rectification, eviction, and monetary compensation—and the reliefs flowing therefrom. v) Who should bear the costs of the suit and Counterclaim. 5. In-Depth Analysis and Determination. Issue 1: Jurisdiction, Exhaustion of Administrative Remedies, and Judicial Review 13.Jurisdiction is everything; without it, a court has no power to take even a single step (Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Limited [1989] KLR 1). The Environment and Land Court derive its jurisdiction from Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act. However, the Land Adjudication Act (Cap 284) establishes a selfcontained statutory mechanism for ascertaining land rights, complete with objection procedures under Section 26 and a final appellate mechanism to the Minister under Section 29, which expressly dictates that the Minister's order shall be final. 14.As underscored by the Court of Appeal in Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v. Kazungu & 2 Others [2023] KECA 1280, 4|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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once the statutory appellate mechanism is exhausted, the Minister's decision cannot be appealed on its merits. An aggrieved party's only recourse is to challenge the process through Judicial Review under Article 47 and the Fair Administrative Action Act, 2015. A litigant cannot bypass this by filing an ordinary civil Plaint to wage a collateral attack on the merits of an adjudication decision (Jumaa Mukuma v. Musembi Mutunga & Another [2022]). 15.In this suit, the Plaintiffs elected to file a standard civil Plaint rather than seeking prerogative remedies by way of Judicial Review. The substance of the Plaintiffs' claim attacks the merits and outcome of the adjudication process itself—including historical occupation and competing family claims. This Court cannot act as an appellate court of first instance to reopen or overturn the finalized determination under Minister's Appeal No. 184 of 2024. Issue 2: Irregularity of Title, Pendente Lite Registrations, and Section 26 of the Land Registration Act 16.Section 26(1) of the Land Registration Act, 2012 provides that a certificate of title is prima facie evidence of ownership, but it remains impeachable if procured through fraud, misrepresentation, or where it is proved that the title was acquired illegally, unprocedurally, or corruptly. 17.The Plaintiffs anchored much of their case on the protection of property rights under Article 40 of the Constitution and cited the Supreme Court decision in Dina Management Ltd v. County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) to support the sanctity of their title. While the Court recognizes the binding principle in Dina Management that the protection afforded under Article 40 does not extend to property that has been unlawfully or irregularly acquired—and that possession of a title document does not immunize an 5|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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unprocedural acquisition from scrutiny—the Supreme Court's pronouncement actually cuts against the Plaintiffs. 18.A meticulous review of the timeline reveals profound irregularity in the root of the 1st Plaintiff's title: i. Pendente Lite Procurement: The 1st Plaintiff extracted a title deed on 29th June 2018. However, this registration occurred while the land adjudication dispute was actively moving through the statutory objection and appellate hierarchy, which ultimately culminated in Minister's Appeal No. 184 of 2024 (Appeal Case No. 514/2017). ii. Defiance of Statutory Hierarchy: As established in Munyu Maina v. Hiram Gathiha Maina [2013] eKLR, when a title is acquired pendente lite during the pendency of active statutory disputes, it is tainted with illegality, lacks indefeasibility, and is void ab initio. iii. Nullification of Irregular Entries: When the Minister delivered a definitive ruling on 9th April 2025 in favour of the defense, the foundational land adjudication rights officially vested in the 1st and 2nd Defendants, rendering the 1st Plaintiff's 2018 title entirely unprocedural and legally unsustainable. 19.Therefore, the 1st Plaintiff's title suffers from fatal irregularity and is liable to be cancelled pursuant to Section 80 of the Land Registration Act. Furthermore, regarding the 2nd Plaintiff, he held no recorded interest on the register, filed no supporting affidavit, and refused to submit to cross-examination, rendering his claims procedurally defective and devoid of locus standi. Issue 3: In-Depth Examination and Determination of the Counterclaim 20.The 1st and 2nd Defendants filed an extensive Counterclaim seeking affirmative relief, anchored on the unyielding finality of the concluded land 6|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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adjudication process and the subsequent issuance of their title deed on 23rd January 2026. The Court evaluates the specific limbs of the Counterclaim as follows: i) Declaratory Proprietorship and Register Rectification: Unlike the Plaintiffs' collateral attack, the Defendants' Counterclaim aligns perfectly with the statutory outcome of the completed adjudication process under the Land Adjudication Act (Cap 284). The evidence demonstrates that following Minister's Appeal No. 184 of 2024, the Chief Land Registrar duly authorized registration, culminating in the issuance of a joint title to the 1st and 2nd Defendants. Because the Plaintiffs failed to have the ministerial determination quashed or set aside by a court of competent jurisdiction through proper Judicial Review, the Defendants' registration remains valid, lawful, and fully protected under Section 26 of the Land Registration Act. Consequently, the prayer for a declaration of proprietorship and the consequential rectification of the register under Section 80 of the Land Registration Act is well-founded and succeeds. ii) Trespass and Eviction Orders: It is established legal doctrine that a registered proprietor is entitled to unhindered possession, use, and enjoyment of their land, subject to the Constitution and statute. Once the Defendants' title was upheld as the lawful culmination of the statutory adjudication process, the Plaintiffs' continued occupation of the suit property transformed them from purported claimants into unauthorized trespassers. A court of law is dutybound to protect a lawful proprietor's possessory rights by issuing an order of permanent injunction and granting vacant possession through an eviction order. To ensure orderly enforcement and rule of law, the execution of the eviction order shall be carried out under the direct supervision of the OCS Sindo Police Station rather than through private self-help. 7|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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iii)Monetary Claims and Damages (Kshs. 4,000,000): In addition to proprietary and injunctive reliefs, the Defendants sought monetary compensation totaling Kshs. 4,000,000, alongside monthly accommodation costs, special damages, and losses arising from agricultural disruption and interference. However, under Sections 107, 108, and 109 of the Evidence Act (Cap 80), he who asserts must prove. In civil litigation, special damages and specific financial losses must not only be specifically pleaded but must also be strictly proved through contemporaneous documents, receipts, and professional valuations (Hahn v. Singh [1985] KLR 716). General damages or compensation for loss of use cannot be granted on mere assertion or speculative estimation. Because the Defendants failed to place before the Court meticulous valuation reports, receipts, or concrete financial records to substantiate the Kshs. 4,000,000 claims, this limb of the Counterclaim fails for want of strict proof and is accordingly dismissed. 6. Final Determination and Disposal Orders. 21.Having addressed all substantive issues, evaluated the competing pleadings, and conducted an in-depth analysis of the Counterclaim, this Court enters judgment as follows: i) Dismissal of Plaintiffs' Plaint: The Plaintiffs' Plaint dated 9th April 2026 is hereby dismissed in its entirety for failure to exhaust administrative review channels, improper collateral attack against a finalized ministerial decision, and want of a valid, unprocurable title. ii) Declaratory Reliefs Granted to Defendants: It is hereby declared and ordered that the 1st Defendant, Michael Otieno Ojwang’, and the 2nd Defendant, Headmond James Kobill, are the lawful, registered proprietors in common of Land Parcel No. SUBA/KAKSINGRI WEST B/1382, as currently reflected in the official land register. 8|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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iii)Nullification and Rectification Reliefs: It is declared that the registration and issuance of the title deed for Land Parcel No. SUBA/KAKSINGRI WEST B/1382 to the 1st Plaintiff on 29th June 2018 was procured irregularly, unprocedural, and pendente lite, and the same is hereby nullified and cancelled pursuant to Section 80 of the Land Registration Act. The 3rd Defendant (Homa Bay Land Registrar) is strictly ordered to cancel the 1st Plaintiff's title and rectify the land register to reflect the Defendants' rightful proprietorship in accordance with the concluded statutory adjudication records. iv)Injunctive and Eviction Reliefs: A permanent injunction is hereby issued restraining the Plaintiffs, their agents, servants, or anyone claiming through them from entering, remaining upon, constructing on, or interfering with Land Parcel No. SUBA/KAKSINGRI WEST B/1382. An eviction order is hereby issued commanding the Plaintiffs and all occupants claiming under them to vacate Land Parcel No. SUBA/KAKSINGRI WEST B/1382 within ninety (90) days from the date of service of this judgment and the consequential decree, failing which they shall be forcefully evicted under the direct supervision of the OCS Sindo Police Station. v) Dismissal of Monetary Reliefs: The Defendants' alternative prayers for general and special damages amounting to Kshs. 4,000,000 and monthly accommodation costs in the Counterclaim are hereby dismissed for want of strict proof and particularization. vi)Costs: Given the complex intergenerational and familial background of the land dispute, each party shall bear its own costs. DATED, SIGNED, and DELIVERED VIRTUALLY at HOMA BAY this 28th Day of September, 2026. 9|Page HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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JUSTICE J.W WANYONYI -JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY In the Presence of; 1. Kobil for the 1st and 2nd defendant. 2. Wanyama for the Applicant 3. Court Assistant: Ms. Awino. 10 | P a g e HOMA BAY ELC LC E014 OF 2026 – JUDGMENT

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