Ethics and Anti-Corruption Commission v Fresh 'N' Nice Limited & 5 others; National Land Commission & 2 others (Interested Parties)

Defendants, who were previously, the only Defendants. Subsequently, the plaint under reference was amended culminating into amended plaint dated the 18.06.2024. 3. The reliefs sought vide the amended Plaint are: a. A declaration that the allocation of land reference number 7918/736 measuring 8.1 Hectares to the 1st Defendant and the subsequent issuance of the lease and certificate of lease was irregular, fraudulent and illegal and consequently null and void. b. An order for rectification of the register by cancellation of the certificate of lease issued to the 1st Defendant over land reference number L. R. 7918/736 measuring 8.100 Hectares. c. An order compelling the National Land Commission to issue an allotment letter in favour of the Cabinet Secretary, National Treasury in trust for Isiolo G K Prison over the piece of land reserved under Development Plant number 117/75/1 of 1996 d. In the alternative, an order be issued directing the Chief Land Registrar, to issue a lease and caused the registration of the Land Parcel Reference number L R 7918/736 in the name of the cabinet secretary, National treasury as proprietor of lease from the Government of Kenya, in trust for Isiolo Government of Kenya [ G K ] Prison. e. An order of permanent injunction against the 1 st Defendant its agents, servants or assigns restraining them from entering into, occupying, leasing, transferring, charging, tasking possession, or in any other manner howsoever from dealing with land parcel reference number L R 7918 measuring 8.100 Hectares. f. A declaration that land reference number 7918/736 measuring 8.1. Hectares is public land set aside by Isiolo GK Prison. g. Costs of the suit. Page 2 of 53

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4. The plaintiff’s claim is premised on various assertions. The assertions are: The suit property, namely; LR No. 7918/736, formed part of the land reserved for the Isiolo G K Prison; the land was reserved vide Development Plan number 117/75/1; the Development Plan has never been superseded; the land in question was equally reserved vide gazettement; the reservation of the prison land has never been revoked/rescinded; the prison has been in continuous occupation of the land; the land was illegally allocated to the 1st Defendant; the allocation of the land to the 1st Defendant was irregular and illegal; the Commissioner of Lands had no capacity to allocate alienated government land; and the 1st Defendant acquired no right to and in respect of the suit property. 5. Additionally, it has been posited thus: The Part Development Plan in favor of the 1st Defendant is irregular and illegal; the Part Development Plan was not legally approved; the plaintiffs title is vitiated by fraud and illegality; the entire process leading to the issuance of the certificate of lease to the 1st Defendant, is fraught with illegalities; the suit land forms part of the prison land; and the 1st Defendant’s title ought to be invalidated. 6. The 1st Defendant duly entered appearance and filed a statement of defence dated the 03.02.2022 and wherein the 1 st Defendant denied the claims by the plaintiff. In addition, the 1st Defendant posited thus: The suit property was lawfully allocated to the 1 st Defendant; the land was part of unalienated government land; the commissioner of land had the authority to allocate the land; the 1 st Defendant was duly issued with a Page 3 of 53

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letter of allotment, the 1st Defendant duly accepted the terms of the allotment; thereafter the 1st Defendant was issued with the requisite certificate of title. . 7. Further, and in addition, the 1st Defendant has stated thus: The land in question did not form part of prison land; the Isiolo G K Prison was never in occupation of the suit property; the 1 st Defendant was the one in lawful occupation and the 1st Defendant is entitled to exclusive possession and occupation of the suit property. 8. The 3rd Defendant duly entered appearance and filed a statement of defence. The statement of defence is dated the 05.01.2022. The 3 rd Defendant has denied the assertions by the plaintiff. In addition, the 3 rd Defendant asserted thus: The 1st Defendant presented a letter of allotment; the 1st Defendant also presented a Part Development Plan; the 3rd Defendant undertook survey; the survey plan was duly submitted to the director of survey vide letter dated 27.02.2014; the director of survey duly approved the survey plans. To this end, the 3rd Defendant has denied that same was involved in any fraudulent survey of the suit property. 9. The 4th Defendant duly entered appearance and filed a statement of defence. The 4th Defendant denied the assertions of fraud in the preparation of the Part Development Plan in favour of the 1st Defendant. Crucially, the 4th Defendant denied being the author of the letter dated the 20.02.2024. In short, the 4th Defendant intimated that same shall invite the Plaintiff to strict proof. 10.The 6th Defendant [land registrar who registered the lease in favor of the 1st Defendant] denied the assertions contained in the body of the amended plaint. In particular the 6th Defendant contended that by virtue of his Page 4 of 53

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office [ land registration office] same is not tasked with the mandate to audit the work of the commissioner of land [now defunct]; the directorate of physical planning; or the directorate of survey. In addition, the 6 th Defendant posited that the lease instrument which was submitted for registration was duly and properly executed and that there was no illegality apparent on the face thereof. 11.The 2nd interested party entered appearance and filed a defence. The 2 nd interested party contended that what constitute the suit property was duly allocated to the 2nd interested party. Moreover, the 2 nd interested party posited that it is its members who have been in occupation of the suit property. 12.The 3rd interested party [the county government of Isiolo] entered appearance and filed a defence. Essentially, the 3 rd interested party contended that what constitutes the suit property, is public land belonging to the county government. 13.The plaintiff’s case is premised on the evidence of 10 witnesses. The witnesses are: Cheruyoit Mathew Kimutai; Ibrahim Hassan Chako; Leonard Odhiambo; Joshua Rume Ochieng; Philip Munyoki Mengi; Michael Mukeria; Stephen Yego; James Nyaga Kithinji; Evalyn Anyango Odipo; and Timothy Waiywa Mwangi. The witness testified as PW1, PW2, PW3, Pw4, PW5, PW6, PW7, PW8,PW9 and PW10, respectively. Page 5 of 53

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14.The 1st witness who testified on behalf of the Plaintiff was Cheruyoit Kimutai Mathew. The witness testified as PW1. 15.It was the testimony of the witness that same is a physical planner. The witness added that currently, he [witness] is stationed at Isiolo. The witness further averred that same recorded a witness statement dated 27.08.2018. Thereafter, the witness sought to adopt the witness statement as his evidence in chief. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in chief of the witness. 16.On cross examination by learned counsel for the 1st Defendant, the witness testified that the Development Plan serves the purpose of reserving land. The witness asserted that Development Plan number 117/75/1 was used to reserve the prison land. 17.However, while still under cross examination, the witness testified that he does not know how the land was allocated to the prison. The witness admitted that where land is reserved for a particular purpose, the purpose can be changed. In particular, the witness testified that there are laws that govern/regulate change of user. 18.Regarding Development Plan number ISL/117/2006/01, the witness averred that the same was prepared and signed by the department of physical planning. Moreover, the witness averred that the current plan superseded the previous one. 19.On cross examination by the learned counsel for the 3 rd Defendant, the witness testified that a surveyor would ordinarily require a letter of allotment and a Part Development Plan as authority to undertake survey. Page 6 of 53

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The witness added that survey exercise can even proceed where the Part Development Plan has not been approved. 20.On cross examination by learned counsel for the 4th Defendant, the witness testified that the Part Development Plan before the court does not have the reference number. Besides, the witness averred that the Part Development Plan does not have the approval number. Moreover, it was the testimony of the witness that where the Part Development Plan does not have the approval number and the reference number, then a surveyor cannot proceed to undertake survey. 21.While still under cross examination, the witness testified that the Part Development Plan relating to the allotment of the suit property, was obtaining at the records of the physical planning. In addition, the witness stated that the letter at page 49 of the Plaintiff’s bundle of documents confirm that the plan attached to the letter was authentic. 22.On cross examination for the 6th Defendant, the witness averred that the Part Development Plan comes earlier that than the letter of allotment and the lease instruments. The witness averred that a land registrar is never involved in the process of preparing a Part Development Plan or a survey plan. 23.The next witness who testified on behalf of the Plaintiff was Ibrahim Hassan Shako. The witness testified as PW2. 24.It was the evidence of the witness that same was the In- charge of G K Prison – Isiolo between the year 2009 to 2018. In addition, the witness averred that the same is therefore familiar with the facts of the case. The Page 7 of 53

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witness averred that same has since recorded and filed a witness statement. The witness referenced the statement dated the 13.12.2017. Thereafter, the witness sought to adopt and rely on the witness statement as his evidence in chief. Suffice it to state, the witness statement was duly adopted and constituted as the evidence in Chief of the witness. 25.On cross examination by learned counsel for the 4th Defendant, the witness testified that the contents of his witness statement are correct. In addition, the witness posited that same has referenced some case in his statement. Nevertheless, the witness averred that he does not recall the details of the case and the status of the said case. 26.The 3rd witness who testified on behalf of the Plaintiff was Leonard Odhiambo. The witness testified as PW3. 27.It was the testimony of Leonard Odhiambo [PW3] that same is an employee of Kenya Prison Service. In addition, the witness averred that he is a surveyor by profession. Moreover, the witness asserted that same is conversant with the facts of the case. The witness added that the recorded a witness statement dated the 15.01.2015 and which witness statement the witness sought to adopt and rely on. The witness statement was thereafter adopted and constituted as the evidence in chief of the witness. 28.It was the further testimony of the witness that the Plaintiff filed a list and bundle of documents [supplementary list and bundle of documents] dated the 21.06.2026. The witness sought to rely on the document. In particular, the witness referenced the gazette notice; and the Part Page 8 of 53

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Development Plan number 117/75/1. Thereafter, the said documents were marked for identification as PMF1 1 and 2 respectively. 29.On cross examination by learned counsel for the Defendant, the witness averred that same has identified a copy of the gazette notice, relating to the suit land. The gazette notice was indicated to have been published in 1977. In addition, the witness averred that the gazette notice relates to the suit land. 30.While still under cross examination, the witness testified that the gazette notice relates to the buildings erected on the land. In particular, the witness conceded that it is the building that was being gazetted as third class prison. In addition, the witness testified that the prison land traverses the main Isiolo- Marsabit Highway. The witness asserted that one part of the land houses the prison quarters, while the other part comprises of the prison farm. 31.It was the further testimony of the witness that the complaint before the witness touches and concerns the irregular allocation of the prison land. To this end, the witness testified that the land currently registered in the name of the 1st Defendant falls within the map constituting the prison land. 32.The witness further testified that same has availed to the court a copy of the map relating to the entire of Isiolo town and which map same has placed before the court. The witness asserted that the map in question covers the entire of the prison land. Page 9 of 53

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33.Referred to the Plaint, the witness averred that the suit property, which is being claimed by the 1st Defendant is LR No. 7918/736. However, the witness conceded that the prison land has never been surveyed. 34.On cross examination by learned counsel for the 3 rd Defendant, the witness averred that before a license surveyor can undertake surveying, such a surveyor must have assorted documents. The witness averred that the documents include: a copy of the letter of allotment and the approved Part Development Plan. Furthermore, the witness averred that the part Development Plan that created the prison land has never been superseded. 35.It was the further testimony of the witness that he visited the 3rd Defendant’s office and the 3rd Defendant showed unto him [witness] the documents which the 3rd Defendant had in his custody. The witness added that the 3rd Defendant also wrote a letter to the director of survey. 36.On cross examination by the learned counsel for the 4 th Defendant, the witness averred that the land in dispute is currently occupied by various people. However, the witness intimated to the Court that he is not able to confirm the exact number of the people who have interfered with the land belonging to the prison. 37.Upon being referred to his witness statement, the witness averred that the same has referenced various Development Plan[s]. The witness averred that the various Development Plans were prepared by the physical planning. The witness clarified that the 4 th development was not the director of physical planning. In addition, the witness posited that the 4 th Defendant’s name is not contained at the foot of the Part Development Plan. Page 10 of 53

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38.On cross examination the learned counsel for the 6th Defendant, the witness testified that same was tasked with the assignment of obtaining various documents from the ministry of land. However, the witness admitted that in the course of his assignment, he did not obtain a copy of the lease instruments, which gave rise to the certificate of lease. In addition, the witness averred that he did not interact with the 6 th Defendant. 39.While still under cross examination, the witness averred that a land registration officer, does not engage him/herself in the process of survey; the process of preparation of the Part Development Plant, or the process of allotment of land. In particular, the witness averred that the land registration officer only deals with the land registration. 40.The Fourth witness who testified on behalf of the Plaintiff was Rume Ochieng. The same testified as PW4. 41.It was the testimony of the witness that same is a surveyor by profession. The witness added that he is conversant with the facts of the case. Moreover, the witness posited that he has recorded a witness statement dated the 08.06.2019 and which witness statement the witness sought to adopt as his evidence in chief. Thereafter, the witness statement was duly adopted and constituted as evidence in chief of the witness. 42.On cross examination by learned counsel for the 1st Defendant, the witness averred that the land in question was reserved for prison. However, when pressed further the witness admitted that he did not have any document to show that the land in question was reserved for prison. Page 11 of 53

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43.On cross examination by learned counsel the 3 rd Defendant, the witness averred that he is a surveyor by profession. In addition, the witness testified that as a surveyor, same would require a letter of allotment and a Part Development Plan to undertake survey. The witness added that same came across the survey plan and that the survey plan was authenticated. Besides, it was the testimony of the witness that authentication of the survey plan is done by the director of the survey. 44.On cross examination by learned counsel for the 4th Defendant, the witness testified that the suit property was reserved for prison. The witness averred that the reservation was done vide the Development Plan. 45.Upon being referred to the Development Plan number ISL/117/2006 /01 , the witness averred that the said Development Plan is before the court. Furthermore, the witness stated that the Development Plan is genuine. 46. On cross examination for the 6th Defendants, the witness testified that the property before the court arose from the lager parcel, namely; 7918. Nevertheless, the witness clarified that the suit property is LR No. 7918/736. Moreover, the witness admitted that a land registration officer does not involve him/herself in the process of preparation of a Part Development Plan; allocation of land or survey of land. 47.The 5th witness who testified on behalf of the Plaintiff was Philip Munyoki Mengi. He testified as PW5. 48.It was the testimony of the witness that he is land registrar. The witness averred that currently he is stationed at Garisa. In addition, the witness posited that previously he was stationed at Isiolo. Moreover, the witness Page 12 of 53

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averred that he has recorded a witness statement and which statement the witness sought to adopt and rely on. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in chief. 49.On cross examination by learned counsel for the 1st Defendant, the witness averred that the land registrar is at liberty to register a lease Instrument in accordance with the law. The witness clarified that a land registrar does not engage him /herself with the issuance of the letter of allotment or preparation of Part Development Plan. Furthermore, a witness averred that a land registrar does not audit/ review the process of allotment of land. 50.The next witness who testified on behalf of the Plaintiff was Michael Mukeria. Same testified as PW6. 51.It was the testimony of the witness that same works with the directorate of survey. In addition, the witness averred that he recorded a witness statement dated the 15.08.2018. Thereafter, the witness sought to adopt and rely on the contents of the witness statement. Suffice it to state that the witness statement was duly adopted as the evidence in chief of the witness. 52.Additionally, the witness referenced various documents, including documents number 23, 33, 35 and 32; and which documents the witness sought to produce as exhibits. There being on objection to the production of the documents, same were duly produced as exhibits P23, 32, 33 and 35, respectively. 53.On cross examination by learned counsel for the 4th Defendant, the witness averred that he is currently the deputy director of survey. Page 13 of 53

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However, the witness clarified that at the time when he signed the letter dated 11.02.2014, same was acting senior director of survey. The witness added that the letter was written on behalf of the Director of survey. 54.Regarding the document at page 26 of the plaintiff’s list and bundle of document, the witness averred that same is a Part Development Plan. The witness added that the said Part Development Plan was duly signed by the director of physical planning. Besides, the witness intimated that the Part Development Plan in question could be used for purposes of undertaking survey. 55.It was the further testimony of the witness that the Part Development Plan in question, is the same one that was forwarded to the directorate of survey from the department of physical planning. Further, and in addition, the witness averred that the survey documents obtaining at the survey’s offices were forwarded for verification and same were duly verified by National Land Commission. 56.On cross examination by learned counsel for the 4th Defendant, the witness testified that same is a surveyor by profession. However, the witness clarified that he is not a licensed surveyor. In addition, the witness testified that he is a qualified land surveyor. 57.The witness further testified that same has referred to various documents in the body of his statements. In particular, the witness averred that he has referenced the letter of allotment. It was the further testimony of the witness that the letter of allotment was sent/forwarded to National Land Commission [NLC] for verification. Page 14 of 53

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58.It was the further testimony of the witness that the letter that forwarded the various documents to National Land Commission was written on behalf of the director of survey. Moreover, the witness averred that National Land Commission undertook the verification exercise and reverted vide the letter at page 47 and 48 of the plaintiff’s bundle of documents. 59.Regarding the document at page 26 of the plaintiff’s bundle of documents, the witness averred that the document is the Part Development Plan. In addition, the witness posited that the Part Development Plan was duly signed. Besides, the witness testified that the Part Development Plan in question, is the one that same received from the directorate of physical planning. The witness added that the Part Development Plan could be relied upon for purposes of undertaking survey in respect of the suit plot. 60.On cross examination by learned counsel for the 1st Defendant, the witness averred that same is the one who was tasked to undertake investigations relating to the suit property. The witness clarified that the letter mandating him [witness] was written by Mr. Jumba, on behalf of the director of survey. The witness also averred that the same received a letter from National Land Commission which confirmed the authenticity of the letter of allotment and the Part Development Plan. 61.While still under cross examination by learned counsel for the 1 st Defendant, the witness averred that the authenticity of the Part Development Plan and the letter of allotment, were confirmed by National Land Commission and the directorate of survey. Moreover, the witness averred that the director of survey also received the survey plan and the deed plan. Page 15 of 53

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62.On cross examination by learned counsel for the 3 rd Defendant, the witness testified that a licensed surveyor is authorized to conduct survey on the basis of letter of allotment. Besides the witness averred that the various documents that were relied upon in respect of the survey process were subjected to verification. In particular, the witness confirmed that the documents were verified and confirmed to be correct. 63.On cross examination by the learned counsel for the 6 th Defendant, the witness testified that the documentation relating to the allotment; survey and registration of the suit property in the name of the 1 st Defendant, were all confirmed to be authentic. The witness added that a deed plan was indeed prepared and authenticated. Furthermore, the witness added that the land registrar who acted on the deed plan and thereafter registered the lease, acted properly and in accordance with the law. 64.The next witness who testified on behalf of the Plaintiff is Stephen Yego. The witness testified as PW7. 65.It was the testimony of the witness that same is a forensic document examiner. The witness added that same has been a document examiner for more than 16 years. In addition, the witness averred that same recorded a witness statement in respect of the subject matter. To this end, the witness referenced the statement dated the 18.08.2023 and thereafter sought to adopt the statement as his evidence in chief. Suffice it to state that the witness statement was indeed adopted as the evidence in chief. 66.Additionally, the witness adverted to the document at pages 90 to 122 of the plaintiffs further list and bundle of documents; and which document the witness pointed out to be the document examination report dated the Page 16 of 53

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20.03.2024. Thereafter, the witness sought to tender and produce the report as an exhibit before the court. There being no objection to the production of the report, same was produced and admitted as exhibit P47 on behalf of the plaintiff. 67.On cross examination by learned counsel for the 4th Defendant, the witness averred that same was availed samples of specimen signature[s] of the 4th Defendant. The witness added that the specimen signatures were taken on the 16.01.2019. It was the further testimony of the witness that specimen signatures were taken to him after a duration of five years. 68.While still under cross examination, the witness testified that the concept to timelines is important in the examination of specimen signatures. In particular, the witness testified that there are points in time, when the writing of a particular writer is established and certain inherent characteristics will exist throughout the writer’s life. 69.The witness further testified that same examined the samples of specimen signatures of the 4th Defendant and compared same against the questioned signature and thereafter returned a finding that the signature [questioned signature] belonged to the 4th Defendant. 70.On cross examination by learned counsel for the 6th Defendant, the witness averred that the specimen signature[s] were forwarded to him vide an exhibit - memo form. In addition, the witness averred that the exhibit memo form was forwarded to him by the investigating officer. Page 17 of 53

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71.The next witness who testified on behalf of the Plaintiff was James Nyaga Kithinji. Same testified as PW8. 72.It was the testimony of the witness that same is a qualified and registered valuer. In addition, the witness averred that same is also an employee of the Plaintiff [Ethics and Anti-Corruption Commission]. Besides, the witness averred that same is conversant with the facts of the case. To this end, the witness posited that same has since recorded and filed a witness statement. The witness referenced the statement dated the 15.08.2023 and which statement the witness sought to adopt as his evidence in chief. Thereafter, the witness statement was adopted as the evidence in chief of the witness. 73.The witness also adverted to a valuation report relating to the suit property. The witness pointed out that same undertook the valuation exercise in the year 2018. Thereafter, the witness sought to produce the valuation report [the certificate] dated the 10.08.2018 as an exhibit. There being no objection to the production of the valuation certificate, same was produced and marked as exhibit P46 on behalf of the plaintiff. 74.The next witness who testified on behalf of the Plaintiff was Evelyne Anyango Odipo. Same testified as PW9. 75.It was the testimony of the witness that same is familiar with the subject matter. In particular, the witness testified that same was the investigating officer in respect of the matter. Moreover, the witness averred that same has since recorded and filed a witness statement dated the 07.12.2021. To this end, the witness sought to adopt and indeed adopted the witness statement as her evidence in chief. Page 18 of 53

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76.Furthermore, the witness referenced the supplementary list and bundle of documents dated the 21.06.2024 and thereafter sought to produce the documents thereunder as exhibits. There being no objection, the documents were tendered and produced as exhibits P1 to P92, respectively. 77.It was the further testimony of the witness that same is also aware that the Plaintiff filed an amended plaint dated the 21.06.2024. To this end, the witness sought to adopt the amended Plaint and the verifying affidavit thereto. Besides, the witness invited the court to grant the reliefs sought at the foot of the amended Plaint. 78.On cross examination by learned counsel for the 4th Defendant, the witness averred that same recorded the witness statement of the 4 th Defendant. In particular, the witness stated that the 4 th Defendant indicated that same [4th Defendant] was knowledgeable of the existence of the letter dated 20.02.2014. In addition, the witness averred that the 4 th Defendant also indicated that the Letter in question does not reference the Part Development Plan number as required. 79.While still under cross examination, the witness testified that the 4 th Defendant denied the signature at the foot of the letter dated 20.02.2014. Moreover, the witness testified that 4th Defendant also posited that the letter in question had not been marked for his attention and action. 80.It was the further testimony of the witness that the 4 th Defendant also indicated that the Part Development Plan was a forgery. The witness posited that the 4th Defendant gave reasons as to why same [4 th Defendant] believed that the Part Development Plan was a forgery. In Page 19 of 53

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particular, the witness averred that the 4th Defendant adverted to the absence of a certificate in accordance with the physical planning act. 81.While still under cross examination, the witness testified that the letters at pages 62 and 63 of the plaintiffs supplementary list and bundle of documents are letters addressed to the CEO /Secretary of the plaintiff. The witness averred that the contents of the letter confirmed that the PDP in question was / fake. Nevertheless, the witness conceded that same did not record any witness statement from Augustine Masinde. 82.On cross examination by the learned counsel for the 1 st Defendant, the witness testified that the intended Allottee of public land is never involved in the preparation of a Part Development Plan. In particular, the witness averred that the allotment of land involves the preparation of Part Development Plan and thereafter, the issuance of a letter of allotment. 83.It was the further testimony of the witness that the letter of allotment, which was issued in favour of the 1st Defendant was duly paid for. The witness averred that same has since availed copies of the payment receipts. It was stated that the payment receipts, were procured and obtained from the land department. Moreover, the witness testified that the letter of allotment was not marked as a forgery. In particular, the witness averred that the letter of allotment was confirmed to be authentic and lawful by National Land Commission [NLC]. The witness referenced the letter dated 19.02.2014. 84.Additionally, the witness averred that same has spoken about particulars of fraud. The witness added that the fraud alluded to relates to the Development Plans. Nevertheless, the witness admitted that same does not have any evidence of fraud and involvement of the 1 st Defendant in Page 20 of 53

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the preparation of the Development Plans. In any event, it was the testimony of the witness that the Development Plans were duly approved. Besides, the witness added that the Development Plan has a certificate at the foot of the plan. 85.It was the further testimony of the witness that same obtained the Part Development Plan, Development Plans; and the various documents from the department of lands. The witness clarified that she did not obtain the impugned documents from the 1st Defendant. Moreover, the witness testified that the documents were obtained from the official records of the ministry of lands. 86.On cross examination by learned counsel for the 3 rd Defendant, the witness averred that the letter of allotment was confirmed to be genuine. Regarding the letter at pages 49 and 50 of the plaintiff’s supplementary bundle of documents, the witness averred that the letter in question emanated from the director of physical planning. However, the witness averred that she determined that the letter of allotment was a forgery. 87.While still under cross examination, the witness testified that the survey by the 3rd Defendant was under taken in the year 2014. The witness admitted that the Part Development Plan which was used to ground the survey was genuine. In addition, the witness conceded that the 3rd Defendant undertook survey and thereafter the survey plans, were escalated to the director of survey. Moreover, the witness averred that the survey plans and the consequential survey documents were duly approved by the director of survey. Page 21 of 53

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88.On cross examination by learned counsel for the 6th Defendant, the witness averred that the 6th Defendant was is a land registrar. The witness averred that the 6th Defendant was only responsible for the issuance of the certificate of lease. In addition, the witness posited that the 6 th Defendant was never involved in the preparation and issuance of the Part Development Plan; the survey plan; or the deed plans. In particular, the witness conceded that the work of the 6th Defendant comes at the tail end of the process. 89.It was the further testimony of the witness that even though the 6th Defendant has been sued, same [witness] has not faulted the 6 th Defendant for any wrong doing. The witness added that she has not indicated in her evidence that the 6th Defendant knew or had reason to know/believe that there was something irregular or illegal, with the lease instruments. 90.Additionally, the witness testified that the 6 th Defendant acted in accordance with the provisions of the law. Nevertheless, the witness averred that she formed an opinion that the actions of the 6 th Defendant were ultra vires. 91.The next witness who testified on behalf of the Plaintiff was Timothy Waywa Mwangi. Same testified as PW10. 92.It was the testimony of the witness that same is the deputy director of the physical planning. The witness added that same has also recorded two [2] sets of witness statements. In addition, the witness referenced the statement dated the 25.07.2023 and the 04.06.2024. Thereafter the witness sought to adopt the two [2] sets of statements as his evidence in Page 22 of 53

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chief. Suffice it to state that the witness statements were duly adopted as the evidence in chief of the witness. 93.It was the further testimony of the witness that by virtue of his office, same is conversant with the facts of this matter. Regarding, document number 3 at the foot of the plaintiff’s supplementary bundle of documents, the witness averred that the document is the Development Plan number 117/75/1. The witness clarified that the Development Plan relates to Zone 9 [1]. In addition, the witness posited that the zone refers to prison farm. 94.On cross examination by the learned counsel for the 4 th Defendant, the witness testified that same was familiar with the 4 th Defendant. The witness clarified that the 4th Defendant is also a registered and qualified planner. Moreover, the witness asserted that the 4 th Defendant was previously his [witness] colleague. 95.It was the further testimony of the witness that when the investigations pertaining to the matter in respect of the prison farm was being conducted the 4th Defendant was not present. The witness added that the Plaintiff [EACC] recorded his statement as pertains to the status of the Development Plan number 117/75/1 and the Part Development Plan pertaining to the suit plot. 96.In addition, the witness averred that the department of physical planning generated a letter dated the 30.08.2018 – Reference number PDP /6/26/IV/12. Besides, the witness averred that the Part Development Plan relating to the suit property was not authentic. Moreover, the witness averred that the Part Development Plan did not form part of the record of the department of physical planning. Page 23 of 53

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97.While still under cross examination, the witness testified that the Part Development Plan did not have the departmental reference number. Regarding, the letter referenced PDP/8/XXII/107, the witness averred that the said letter was a forgery. 98.It was the further testimony of the witness that the department of physical planning had generated other letters, which showed that the letter written by the 4th Defendant was forgery. 99.On cross examination by learned counsel for the 1st Defendant, the witness testified that what constitutes the prison farm underwent change of user and same was converted into Industrial area. The witness added that the change of user was under taken in 2006. 100. Regarding the document as page 27 of the list and bundle of documents, the witness averred that the document is a letter of allotment relating to plot A Isiolo. The witness added that the plot which was being allocated was an Industrial plot. Furthermore, it was the testimony of the Defendant that the 1st Defendant accepted the terms of the letter of allotment. 101. While still under cross-examination, the witness testified that by the time the letter of allotment was being issued to the 1 st Defendant, the land in question had already been converted and reserved for industrial purposes. 102. Regarding the documents at page 48 of the plaintiff’s supplementary documents, the witness averred that the document is a letter from the National Land Commission. In particular, the witness Page 24 of 53

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averred that the letter confirmed that the letter of allotment in favor of the 1st Defendant is genuine. 103. Regarding the document at page 62 of the Plaintiff supplementary list of documents, the witness averred that the document is a letter by the physical planning. In addition, the witness testified that the letter in question was written the secretary /CEO of the Plaintiff [EACC]. Besides, the witness clarified that the director of physical of planning confirmed that the re-zoning of the suit plot/area was legitimate. 104. Regarding the document at page 26 of the plaintiff’s supplementary bundle of document, the witness averred that the document is a copy of the Part Development Plan issued in 1998. In addition, the witness averred that it is the said Part Development Plan, which gave rise to the suit plot. 105. Regarding the letter of allotment in favor of the 1 st Defendant, the witness averred that the same does not have a reference number for an approved Development Plan. Besides, the witness posited that the acceptance letter was issued on the 27.01.2009. 106. On cross examination by learned counsel for the 6th Defendant, the witness averred that the 6th Defendant is a land registration officer. The witness added that the 6th Defendant is never involved in the preparation of Development Plans or Part Development Plans. It was the further testimony of the witness that the 6 th Defendant is also never involved in issuance of letters of allotment or survey exercise. Page 25 of 53

page 25 of 53

107. It was the further testimony of the witness that the 6 th Defendant is only tasked with the registration of the lease and the issuance of the resultant certificate. The witness clarified that the lease at page 37 of the plaintiff’s bundle of documents, was duly executed by the chief land registrar. In addition, the witness averred that the 6th Defendant would not know of any defect in the preparation of the Part Development Plan unless the director of planning wrote to him. 108. Be that as it may, the witness clarified that the director of physical planning, did not write to the 6th Defendant, either to cancel the title or to affix any restriction against the title. 109. With the foregoing testimony, the plaintiff’s case was closed. 110. The 1st Defendant case is premised on the evidence of one witness. The witness is Mustafa Abdi Aman. The witness testified as DW2. 111. It was the testimony of the witness that same is a director of the 1st Defendant. In addition, the witness averred that he has since recorded a witness statement dated the 03.02.2022. The witness thereafter, sought to adopt and rely on the evidence as his evidence in chief. Suffice it to state that the witness statement was duly adopted as the evidence in chief of the witness. 112. Additionally, the witness referenced the list and bundle of documents dated the 03.02.2022, containing 8 documents. The witness thereafter sought to adopt and produce the documents as exhibits Page 26 of 53

page 26 of 53

before the court. There being no objection to the production of the document, same were duly produced and admitted as exhibits D1 to D8, respectively on behalf of the 1st Defendant. 113. The witness also adverted to the statement of defence dated the 03.02.2022. The witness sought to adopt and rely on the contents of the statement of defence. In particular, the witness sought to have the plaintiff’s case to be dismissed. Moreover, the witness posited that the claims by the Plaintiff are false and misleading. 114. On cross examination by the learned counsel for the 3rd Defendant, the witness averred that the survey exercise was undertaken by the 3rd Defendant. The witness averred that same is familiar with the 3rd Defendant. In addition, the witness posited that the 3rd Defendant is a licensed surveyor. Besides, the witness testified that he [witness] engaged the 3rd Defendant to undertake survey on behalf of the 3rd Defendant. 115. It was the further testimony of the witness that the 3 rd Defendant, undertook the survey exercise for the 1st Defendant herein and on behalf of the 1st Defendant in Isiolo ELC No. E003 of 2021. [Karamoh Impex and Transport Limited]. In addition, the witness stated that the survey exercise was undertaken prior to the issuance of the certificate of lease. 116. While still under cross examination, the witness testified that his company [the 1 st Defendant] applied to be allocated land in the year 1998. The witness added that thereafter, the commissioner of lands generated and issued a letter of allotment. Moreover, the witness Page 27 of 53

page 27 of 53

posited that the 1st Defendant accepted the terms of the letter of allotment and paid the stamp premium. 117. It was the further testimony of the witness that upon compliance with the terms of the letter of allotment, the land in question was surveyed by a surveyor assigned by the director of survey. In particular, the witness added that the survey was undertaken on the basis of an approved Part Development Plan. In addition, the witness posited that the survey exercise was authorized by the commissioner of lands. On cross examination by learned counsel for the 6th 118. Defendant, the witness averred that he [witness] has never encountered /met the 6th Defendant. Furthermore, it was the testimony of the witness that same has no claims as against the 6th Defendant. 119. On cross examination by learned counsel for the 2 nd Interested party, the witness averred that the land in question was duly allocated to the 1st Defendant vide letter of allotment dated the 25.11.1999. The witness clarified that same is not aware whether the suit property had been allocated to the 2nd interested party vide letter of allotment issued on the 12.04.1994. 120. On cross examination by learned counsel for the 3rd interested party, the witness averred that same was not aware whether the land in question had been surveyed in 1976. In addition, the witness testified that the allocation of the suit land was undertaken by the commissioner of lands. 121. While still under cross examination, the witness posited that same duly complied with the terms of the letter of allotment. Page 28 of 53

page 28 of 53

In particular, the witness averred that the 1st Defendant accepted the terms of the letter of allotment. Further, the witness added that the stand premium was duly paid. Besides, the witness posited that the timelines for the payment were duly extended. 122. On cross examination by the learned counsel for the plaintiff, the witness averred that the 1st Defendant duly applied to be allocated the suit plot. In addition, the witness testified that same has produced before the court copies of the application for allotment. 123. However, when pressed further, the witness averred that same has not produced a copy of the application letter to the commissioner of lands. Be that as it may, the witness reiterated that the 1st Defendant made an application to the commissioner of lands. 124. It was the further testimony of the witness that the 1 st Defendant did not make any application to the county council of Isiolo [now defunct]. Moreover, the witness averred that the letter of allotment which was issued in favour of the 1 st Defendant does not reference the designated county council. The witness also admitted that the letter of allotment does not contain/indicate the plan number on the face thereof. 125. While still under cross examination, the witness averred that before the land was allocated to the 1st Defendant, a Part Development Plan was duly prepared, checked and approved. The witness clarified that the 1st Defendant did not know of whether the land in question had been allocated to or reserved in favour of the prison. 126. It was the further testimony of the witness that the certificate of lease in favor of the 1st Defendant was lawfully issued. In Page 29 of 53

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particular, the witness averred that all the processes were complied with. The witness denied the assertions that the certificate of lease was irregularly issued. 127. Regarding occupation of the suit property, the witness testified that the 1st Defendant took possession and remained in occupation of the suit property from the year 1999. However, the witness testified that the 1st Defendant was evicted from the suit property in the year 2022 by the County Government of Isiolo [3rd Interested Party]. 128. The 4th Defendant’s case is premised on the evidence of one witness. The witness is Patrick Bitengo Achoki. The witness testified as DW1. 129. It was the testimony of the witness that same is currently the director of physical planning – County Government of Kisii. Besides, the witness testified that he is also a qualified and registered planner. In addition, the witness averred that same has since recorded and filed a witness statement dated the 04.10.2024. The witness thereafter sought to adopt and rely on the witness statement as his evidence in chief. Thereafter the witness statement was duly admitted and constituted as his evidence in Chief. 130. On cross examination by learned counsel for the 1st Defendant, the witness averred that he is not a document examiner. Regarding the document at page 95 of the plaintiff’s supplementary list and bundle of documents, the witness averred that the document in question is a copy of the forensic document examination report. The witness added that the document examiner has indicated that the signature at the foot of the impugned letter were authored by the same person. Page 30 of 53

page 30 of 53

131. It was the further testimony of the witness that the findings by the document examiner indicate that the impugned signature belongs to him [witness]. 132. On cross examination by the learned counsel for the 3rd interested party, the witness averred that according to him, the letters in question [letters referred to in the document examiner’s report] are forgeries. The witness added that he has stated as much in his witness statement. 133. On cross examination by the learned counsel for the plaintiff, the witness testified that same duly recorded a witness statement with the Ethics and Anti-Corruption Commission [EACC]. The witness clarified that same PDP/8/XX11/105. disowned the letters reference number Further, the witness averred that his specimen signatures were taken by the ethic and anti-corruption commission [The Plaintiff herein]. 134. It was the further testimony of the witness that same has seen a copy of the forensic document examiner’s report. In addition, the witness averred that according to the report, it is indicated that the impugned letters were signed by him. In any event, the witness conceded that he has not tendered any document examiner’s report to contradict the one produced by the plaintiff. 135. Upon the conclusion of the hearing, the advocates for the parties sought time to file and exchange written submissions. To this Page 31 of 53

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end, the court proceeded to and issued directions pertaining to the filing and exchange of the written submissions. 136. The directions were: The Plaintiff shall file and serve written submissions within 14 days from the date of the directions; the Defendant shall file and serve written submissions within 14 days from the date of service by the plaintiff; and the Plaintiff shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 137. The Plaintiff filed written submissions dated the 16.07.2026 and wherein the Plaintiff has highlighted various issues. The issues include: Whether the letter of allotment dated 25.11.1999 issued by the 2nd Defendant was lawful or otherwise; whether the conditions in the letter of allotment dated 25.11.1999 were met; whether the suit property was previously trust land and which fell within the jurisdiction of the 3rd interested party; and whether the 1st Defendant acquired lawful rights over the suit property. 138. The 1st Defendant filed written submissions filed written submissions dated the 27.07.2026. The 1st Defendant has highlighted three [3] key issues. The issues are: Whether the land was available for allocation; whether the allocation to the 1 st Defendant was fraudulent; and whether the reliefs sought are merited or otherwise. 139. The 3rd Defendant filed written submissions dated the 23.07.2026. The 3rd Defendant has highlighted four [4] key issues. The issues are: Whether the Plaintiff has proved the allegation of fraud and illegality against the third Defendant; Whether the Plaintiff has proved that the 3rd Defendant knowingly participated in any unlawful allocation Page 32 of 53

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or alienation of public land; whether the Plaintiff has discharged the burden of proof imposed by the law; and whether the suit against the 3 rd Defendant ought to be dismissed. 140. The 4th Defendant filed written submissions dated 29/07/26; and wherein same has highlighted four [4] issues. The issues are: Whether the Plaintiff has discharged the burden of proving the allegation of fraud, malfeasance as against the fourth Defendant; whether the Plaintiff has proved that the fourth Defendant authored the letter dated 20.02.2014; whether the Plaintiff has established any legal basis for imposing personal liability upon the 4th Defendant; and whether the Plaintiff is entitled to any relief as against the 4th Defendant. 141. The 6th Defendant filed written submissions and wherein same has highlighted three [3] key issues. The issues are: Whether the Plaintiff has proved that the suit land was reserved for prison; whether the Plaintiff has proved its case against the 4th Defendants and what reliefs ought to be granted. 142. Having reviewed the pleadings filed by and on behalf of the parties; the evidence tendered [both oral and documentary]; and upon considering the submissions on record, Four [4] key issues emerge for determination. The issues are: Whether the suit property formed part and parcel of land which had been reserved for Isiolo G K Prison or otherwise; whether the allocation for the suit property to the 1st Defendant was lawful, or otherwise; and whether the 1st Defendant acquired lawful rights thereto; and what appropriate reliefs [if any] ought to issue. Page 33 of 53

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143. Regarding the first issue, namely; whether the suit plot formed part and parcel of land that had been reserved for Isiolo G K Prison or otherwise, it is important to underscore that the burden of proving, or establishing the assertion, fell on the shoulders the plaintiff. To this end, it behooved the Plaintiff to place before the court evidence, demonstrating that what comprises of the suit property, indeed stood alienated on the basis of reservation. 144. It is common ground that where land, which was previously Government Land under the Government Land Act, Chapter 280, Laws of Kenya, had been reserved for a particular purpose, then such land, ceased to be unalienated government land. Simply put, Government Land under the Government Land Act [now repealed] could be alienated on the basis of reservation. 145. The question that does arise is what constitute[s] alienation vide reservation? The reservation can take three different aspects. Reservation can be by way of duly prepared and approved Part Development Plan in respect of the designated land, showing the purpose for which, it has been reserved. Reservation vide Part Development Plan is highlighted by section 3 of the Physical planning act, chapter 286, laws of Kenya [now repealed]. The legal implications of alienation of land vide reservation was highlighted in the case of Kipsirgoi Investments Limited v Kenya Anti-Corruption Commission Civil Appeal No. 228 of 2010 [unreported] 146. In the case of Board of Trustees, National Social Security v Keiyo Teachers Co-operative Savings and Credit Society & 6 others [2026] KECA 327 (KLR), the Court of Appeal stated thus: Page 34 of 53

page 34 of 53

“Decided cases are in agreement that once land is gazetted as public land, it falls under a separate category of land that has already been alienated for a specific public use. (See Mungania & 3 Others vs. County Government of Meru & 6 Others (Petition E010 of 2024) (2025) KEELC 3299 (KLR) (23 April 2025) (Judgment). Once land is gazetted for a specific purpose or use, it is reserved for that purpose only and therefore, it is not available for general, private or alternative use. Public land is gazetted for a particular use enjoys a high level of legal protection, therefore, it is not available for re-alienation or sub-division or allotment. In contrast, un-alienated public land is essentially public land that has not yet been committed for a specific lease or allotment.” 147. What was previously Government Land under the Government Land Act, could also stand alienated on the basis of assignment for use by the government or a public utility. This position was elaborated in the case of Frann Investment Limited v Kenya AntiCorruption Commission & 6 others [2024] KECA 714 (KLR). 148. The Plaintiff contended that what was allocated to and in favor of the 1st Defendant was land that had already been alienated by way of reservation. To underpin this assertion, the Plaintiff tendered three key documents. The documents include: copy of gazette notice number 77 [exhibit p1]; copy of Development Plan number 117/75/1 exhibit P2 and copy of certified Development Plan number 117/2006/1 [exhibit P5]. These are the documents which were relied upon by the Page 35 of 53

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Plaintiff to buttress the assertion that the suit land was not available for alienation. 149. I wish to point out that gazette notice number 77 [exhibit P1] only references buildings that were gazetted and designated as prison. The gazette notice does not reference what is called “Prison Farm” , which is the portion that is purported to have birthed the suit property. To my mind, a reading of exhibit P1 does not help the plaintiff’s case. 150. It is important to recall that the contents of the said gazette notice were pointed out to PW1 and PW1 stated thus: “I have produced a copy of the gazette notice. The gazette notice was published in 1977. The gazette notice relates to the suit land. The gazette notice relates to a building erected. It is the building that was being gazetted as a third class prison.” 151. It was the further testimony of PW1 that what is stated to be the prison land traverse [cuts across] the main road to Marsabit. However, the witness added that one part of the land is what houses the prison quarters and the other portion relates to the prison farm. Nevertheless, pw1 insisted that the gazette notice [exhibit P1] suffices to demonstrate that same includes [sic] prison farm. 152. I hold the humble view, that the gazette notice does not relate to the land where the suit property is situate. In particular, the gazette notice is explicit and only relates to the buildings. The contents Page 36 of 53

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of the gazette notice [exhibit P1] cannot be expanded by way of oral evidence or at all. Section 97 of the Evidence Act [Chapter 80 Laws of Kenya] excludes extrinsic evidence while interpreting a deed or written memorandum. 153. The other documents that has been relied upon is the Development Plan number 117/75/1 [exhibit P2]. The document itself shows that same was proposed new Prison Farm. However, there is no gainsaying that the document does not show who prepared it whether it was subjected to approval; and whether it was approved. Suffice it to state that the document, on the face of it, is plain. The document is clearly devoid of probative value. 154. Finally, the Plaintiff relied on Development Plan number 117/2006/1 [exhibit P5]. The said Development Plan was admitted by PW3, to have superseded Development Plan number 117/75/1, which is said to have reserved the proposed land for prison farm. PW3 further stated that the new Development Plan converted the area comprising of the suit property for industrial use. 155. The sum total of the evidence that was tendered by and on behalf of the Plaintiff did not show that the suit property fell within the portion of land, which had either been reserved on the basis of any Part Development Plan or was under the occupation or use by the prison. It was not enough for the Plaintiff to merely make assertions and Page 37 of 53

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throw documents on the face of the court, under the pretext of proving reservation of the land. 156. I have pointed out elsewhere hereinbefore that the burden of proof fell on the plaintiff. The burden could only be discharged on the basis of cogent, plausible and credible evidence. This is the import of sections 108 and 109 of the Evidence Act Chapter 80 Laws of Kenya. 157. The need to prove that the land in question had been reserved for public use was highlighted in the case of County Government of Kakamega & another v Sila & another [2026] KECA 344 (KLR). 158. The Court of Appeal stated thus: “The appellants were required to establish to the required standard of proof that the suit property was “unalienated” Government Landor that it had been set aside for a particular public purpose at the time the 2010 Constitution was promulgated or that the process leading to the allotment of the suit property by the 1st appellant’s predecessor in title was fraudulent or unprocedural. The appellant failed to discharge this burden that was placed on them. From the evidence placed before the trial court, it was clear that the process which the lease in respect of the suit property was alienated was legal. The 1 st appellant’s predecessor in title had the requisite legal mandate to alienate and allot land within its jurisdiction for private ownership and development. Other than making unsubstantiated allegations of fraud, the appellants placed no evidence before the trial court Page 38 of 53

page 38 of 53

that the initial allotment to the first allottee was fraudulent or illegal.” 159. My answer to issue number one [1] is to the effect that the Plaintiff herein did not discharge the burden of proving that what comprises of the suit property was alienated government land; or that same was under the use; or occupation of GK Prison Isiolo. 160. Turning to the second issue, I wish to point out that the 1st Defendant tendered evidence through its director namely; Abudalahii Maalim. Same testified as DW2. In addition, the witness tendered assorted documents which were marked as exhibits D1 to D7 on behalf of the 1st Defendant. The witness thereafter elaborated the process culminating into the registration of the suit property in the name of the 1 st Defendant. 161. I wish to highlight that the documentation that underpin the allotment of the suit property to and in favor of the 1 st Defendant were admittedly forwarded to National Land Commission for verification and authentication. PW5 [Micheal Mukeria] and PW 9 Evalyn Anyango Odipo confirmed as much. 162. PW9 [Evalyn Anyango Odipo] while under cross examination by learned counsel for the 1st Defendant stated thus: Page 39 of 53

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“I am aware that there is a letter from National Land Commission confirming that the letter of allotment in favor of the 1st Defendant is lawful. The letter from National Land Commission is dated 19.02.2014. The author of the letter recorded a witness statement and confirmed the authenticity of the letters of allotment.” 163. is credible. The question that comes to the fore is whose position On one hand, the Plaintiff is contending that the documentation underpinning the allotment in favor of the 1 st Defendant are fraudulent and illegal, while the National Land Commission [the body chargeable with land administration], says that the documentation are legal. Suffice it to state that the Plaintiff herein cannot impeach the decision of National Land Commission. 164. In any event, one wonders why the Plaintiff chose to exclude the witness from National Land Commission who authored the letter dated 19.02.2014 and who reportedly recorded a witness statement with the plaintiff. 165. The other aspect that merits consideration is the legal implication[s] of the payments of the standard premium outside the 30 days. This is one of the aspects and issue[s] that has been highlighted and relied upon by the Plaintiff to impeach the 1 st Defendant’s title. I wish to state that the position taken by national land commission, in my humble view, insulates the 1st Defendant. 166. Furthermore, I do wish to posit that having taken the Witness Statement of the Witness from the National Land Commission; Page 40 of 53

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and having obtained the Letter dated the 19.02.2014 from the said Commission, the Plaintiff was obliged to bring forth that Witness, even if the evidence of same would have been adverse. Suffice it to state that the Plaintiff herein was intent on procuring the truth as pertains to the status of the Plot in question. The Plaintiff was therefore enjoined to place before the Court all the facts and the evidence within her custody, without [sic] concealment. It was immaterial, even if the evidence, would have been adverse. 167. I do wish to state that the withholding of the evidence of the Witness from National Land Commission by the Plaintiff herein, ought and must be taken to mean that the evidence of the said Witness, would have been adverse. [See the holding of the Court in the case of Stanley Mombo Amuti versus Kenya Anti-Corruption Commission [2019] eKLR]. 168. The Plaintiff herein also chose to impugn the legality of the process leading to the Certificate of Lease in favour of the Plaintiff, on the basis of the failure to pay the Stand premium [sic] within the 30Day period. In answer to this assertion, it is important to highlight that the Stand premium and the statutory levies, were duly paid; received; and acknowledged by the Government. Suffice it to state the receipts testament to the payments, were duly tendered before the Court. 169. Towards this end, it apposite to reference the decision in the case of Cabin Crew Investments Limited v Kenya Medical Training College & 4 others [2020] KECA 868 (KLR). The Court of Appeal addressed its legal mind to the implication[s] attendant to payment of standard premium outside the statutory 30 days. Page 41 of 53

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170. The court stated thus: “On the second issue, the elephant in the room is whether the suit property was available for alienation when the same was allocated to the appellant. As stated earlier, it is common ground that the 1st respondent was allocated the suit property and was supposed to comply with the terms stipulated in the letter of offer. The 1st respondent accepted the offer and paid the required monies albeit outside the thirty days stipulated in the letter of offer. Having done so, responsibility to process and issue the title documents rested with the 3rd respondent. Although the acceptance and payment of the premium was done outside the stipulated time, the 3rd respondent accepted the money and issued a receipt for the same and never informed the 1st respondent that the offer had been withdrawn or had lapsed. In the circumstances, the Commissioner of Lands could not purport to deem the suit property as unalienated and purport to allocate the same to another party. 171. I am aware that that sanctity of the Certificate of Title, or lease cannot be deployed to insulate an illegality. However, in respect of the instant matter, there is no gainsaying that the documentation in favour of the First Defendant, including; The Part Development Plan; the Survey Plan; the Letter of allotment; and the Lease, were submitted for verification to National Land Commission; and same were confirmed to be authenticate. Page 42 of 53

page 42 of 53

172. Though the decision[s] and finding[s] of National Land Commission are not strictly binding on the court, it is equally, important to point out, that the Court cannot disregard such finding[s], without a proper basis. Regarding this case, no basis exists to warrant taking such a course. 173. Arising from the foregoing, and coupled with the holding of the Court of Appeal in the Cabin Crew case [supra], I am minded to and do hereby return a finding that the allocation of the Suit Property in favour of the First Defendant, was lawful and legitimate. In short, the First Defendant’s Title, does not lend itself to cancellation. 174. Next is the issue of the appropriate relief[s], which ought to granted. The Plaintiff herein sought various and diverse reliefs. It is important to interrogate the reliefs; and to discern, if at all, same merit to be granted. 175. Given the nature of the reliefs that were sought, I beg to address same sequentially. Firstly, the Plaintiff sought a declaration that the allocation of the suit property; and the subsequent, registration of same in the name of the First Defendant, was irregular; illegal; and unlawful. Suffice it to state that the crux of the said assertion, was because it was contended that what constitutes the suit property, had already been alienated vide reservation in favour of GK Prison-Isiolo. However, I wish to state that while dealing with issue number one hereinbefore, I interrogated the question, and found that no evidence of such reservation was tendered. A court of Law acts on the basis of evidence; and not mere assertions. [See the case of CMC Motor Aviation Limited versus Crusair Limited [1987] KLR 103; James Page 43 of 53

page 43 of 53

Muniu Mucher versus National Bank of Kenya Limited [2019] eklr; and Dr. Samson Gwer and 5 Others versus Kenya Medical Research Institute [2020] eklr, respectively]. 176. Secondly, the Plaintiff has sought an order for cancellation of the Register; and the Certificate of Lease in favour of the First Defendant. I do acknowledge that this court is seized of the mandate to do so vide the provision[s] of section 26 and 80 of the Land Registration Act, 2012 [2016]. However, the exercise of such power, is dependent of proof of fraud; misrepresentation; illegality; unprocedurality; or corrupt practice. 177. Be that as it may, there is no gainsaying that any claimant, who seeks to impugn a Certificate of Title, or Lease on the basis of such assertion[s], bears the burden of proof. In respect of the instant case, various allegations, were raised. However, I am afraid that no credible evidence was tendered. It is not lost on me that proof of fraud; forgery; and illegality, required plausible evidence. No such evidence was tendered, taking into account the Evidence of PW1; PW3; PW5; and PW9, respectively. 178. The third relief which has been sought by and on behalf of the Plaintiff, relates to the issuance of an Order compelling National Land Commission to [sic] issue a Letter of allotment in favour of the Cabinet Secretary, National Treasury, in trust for Isiolo GKPrisons. What I hear the Plaintiff to be saying is that this Court can proceed to compel National Land Commission, which is one of the Page 44 of 53

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Chapter Fifteen Commissions, to perform its work/ function[s], in a particular manner. 179. I am not sure whether such kind of an Order can issue; or be issued against the National Land Commission [NLC], bearing in mind the import and tenor of Articles 67[2] and 249[2] of the Constitution, 2010. What I mean is that the commission cannot be commanded to issue a Letter of allotment, to and in favour of a particular person. 180. In any event, it bears repeating that the Commission [ National Land Commission] generated a Letter dated 19.02.2014; and wherein the Commission indicated that the allotment in favour of the First Defendant was lawful. The said decision of the Commission remains in situ. The same has not be quashed. In the circumstance[s], and bearing in mind what I have already said above, I find that the said prayer, is not tenable. 181. The other prayer, which has been sought is an Order to direct the Chief Land Registrar, to issue a Lease and cause the same to be registered in favour of the Cabinet Secretary, National Treasury, in trust for the GK Prisons- Isiolo. It is common knowledge that the mandate to administer and manage Public Land, vests in the National Land Commission; and not the Chief Land Registrar. This position was highlighted and affirmed by the Supreme Court in the case of In the Matter of National Land Commission [2015] EKL, at paragraphs 222-226 thereof. Page 45 of 53

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182. It is also important to reference the decision in the case of Cordison International (K) Limited V Chairman National Land Commission & 44 Others [2019] KECA 830 (KLR). The Court of Appeal stated thus: “It is important that we start by distinguishing between “alienation” and “allocation” of land. Section 2 of the Lands Act defines “alienation of land” as the sale or other disposal of the rights to land; while “allocation of land” means the legal process of granting rights to public land. 30. Article 67 of the Constitution that establishes the National Land Commission gives it power to, inter alia, manage public land on behalf of the national and county governments. The suit land is public land as defined under Article 62(1) (a) of the Constitution and therefore vests in and is held by the County Government of Lamu in trust for the people resident in the County. Article 62 (2) of the Constitution provides that the land shall be administered on behalf of the County residents by the National Land Commission. Section 5 (1)(a) of the National Land Commission Act is also explicit that one of the functions of the National Land Commission is to manage public land on behalf of the national and county governments. Under section 5(2) of the Act the Commission may, “on behalf of, and with the consent of the national and county governments, alienate public land.” 31. Section 12 of the Land Act grants the Commission authority to allocate public land on behalf of the national or county governments and section 14 of the Act specifies the steps that the Commission ought to take before it undertakes any such allocation. The Commission has to issue, publish or send a notice of action to the public and interested parties, at least thirty days before offering for allocation a tract or tracts of land. Page 46 of 53

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183. Notwithstanding the foregoing, and having found that the allocation was lawful, there is no way that I can proceed and direct [sic] alienation of what is already private Land. 184. I now wish to turn to prayer of Permanent Injunction, to restrain the First Defendant, its agents, servants, or assigns from interfering with the suit property. Insofar as the First Defendant remains the registered Owner of the Suit property, same is vested with the lawful rights and privilege[s] thereto. In this regard, the court cannot proceed to restrain the registered owner of the Land, of what is undeniably his/her[s]. 185. Finally, I wish to comment on the prayer seeking the amendment of the Development Plan Number SL/117/2006/01. Suffice it to state that the Plaintiff did not implead the Ministry of Land. Further, no evidence was led to demonstrate that the said Development Plan, was not prepared in accordance with the Law. If anything, PW1 [Cheruyoit Kimutai Mathew] and PW10 [Timothy Waiywa Mwangi] testified that the said Development Plan, was lawfully prepared and subjected to the lawful process[s]. 186. In addition, it is worthy recalling that PW10, testified and asserted that Development Plan number 117/75/1 was amended. The witnesses added that the amendment of the plan was undertaken in the year 2006. For coherence, PW10 stated thus: “The prison farm was subsequently converted to industrial in 2006. I do confirm that a plan was developed in 2006. There have been no Page 47 of 53

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other Development Plans in the year 2006. I confirm that the land in question remains industrial as of today.” 187. Moreover, the witness further testified thus: “Upon being referred to page 62 of the plaintiff’s supplementary bundle of documents, the witness averred that the document by the director of physical planning and addressed to the secretary/CEO of Ethics and Anti Corruption Commission. The director of physical planning is indeed confirming that the re-zoning is legitimate” 188. What I hear PW10 [Deputy Director of Physical Planning] to be saying is to effect that plan number 117/75/1, which was underpinning the plaintiff’s claim was lawfully superseded. In addition, the witness asserted that a new Development Plan was prepared and approved. The new Development Plan was approved in 2006. Thereafter, the usage of the area wherein the suit plot is located was converted to industrial. 189. Furthermore, PW10 has asserted that the director of physical planning indeed confirmed and acknowledged that the re-zoning was lawfully undertaken. Consequently, I am unable to impeach the duly approved Development Plan number 117/75/1/2006, which confirmed and underpins the change of user. Summary of findings: Page 48 of 53

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190. In the course of addressing the issues that were raised by the parties, the court has arrived at certain findings. The findings have been distilled from the totality of the evidence on record and the applicable law. It is therefore apposite to provide a summary of the findings. 191. The findings are: a) What constitutes the suit property was not alienated Government Land. b) The land in question was not preserved on the basis for an approved Part Development Plan. c) The gazette notice number 177 did not relate to the suit land. d) The gazette notice number 177 related to the buildings which were converted /constituted as third class prison. e) The Isiolo G. K Prison was not in occupation of what constitutes the suit property. f) The Development Plan number 117/75/1 did not relate to the suit property. g) The suit property was unalienated government land. h) The suit property was available for alienation. i) The suit property was lawfully alienated vide letter of allotment in favor of the 1st Defendant. j) The letter of allotment was genuine and authentic. k) The letter of allotment was duly accompanied by an approved Part Development Plan. l) The Part Development Plan was genuine and authentic. m) The survey plan [FR] and the deed plan were duly approved and authenticated by the director of survey. Page 49 of 53

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n) The Lease instrument was duly drawn and properly executed; and attested. o) The registration of the leas and the issuance of the certificate of lease were lawful. p) The Plaintiff has not proved its claims. q) The suit property lawfully belongs to the 1st Defendant. CONCLUSION: 192. Flowing from the foregoing, it must have become apparent that the prayer[s], or reliefs sought by the Plaintiff, over and in respect of the suit Parcel of Land are not legally tenable. The Plaintiff herein did not tender, or adduce credible evidence, inter-alia; evidence of reservation of the Suit property vide duly approved Part Development [PDP]; or by way of occupation/ use of the suit property. In any event, there is no gainsaying that what constitutes the suit property, was admittedly, separate from ‘the Prison’’ which was the subject of the Gazzette. 193. Absent evidence, like it was observed in the case of County Government of Kakamega and Others versus Sila [Supra], the claim that the suit Land was [sic] alienated Government, dissipates into thin air. 194. Furthermore, it is worth recalling that the Plaintiff had averred that the allocation of the suit Property, was illegal, fraudulent, and irregular. However, the evidence of Evelyn Anyango Odipo [PW9], confirmed the position of National Land Commission. Page 50 of 53

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Simply said, the position of the Commission [NLC] was to the effect that the allocation, was lawful. 195. Additionally, I wish to state that whenever a Plaintiff sues a party, in this case the Defendants, it behooves the Plaintiff to prove the assertion[s] against each and every Defendant. In this case, it was the duty of the Plaintiff to show the Court, why same had sued the 3 rd Defendant, who is a licensed Surveyor; and whose role in the subject matter, was only to undertake survey, on the basis of duly approved PDP; and the Letter of allotment. Moreover, the evidence of PW1, PW2, PW3 PW5 and PW10 all confirmed that an approved PDP and Letter of allotment, constitutes lawful authority to undertake survey. 196. Other than the foregoing, it is common ground that the Survey Plan; and the Deed Plan[s], arising from the Survey exercise by the Third Defendant, were duly approved and authenticated by the Director of Survey. However, the approval and authentication by the Director of Survey, were not challenged. 197. Regarding the Fourth Defendant, I wish to state and observe that the same was impleaded on the basis of some Letters, which indicated that the PDP was lawful. Nevertheless, the authenticity of the PDP was not impugned. The PDP was confirmed to have formed part of the Official records of the Director of Physical Planning; and was one of the Document[s] that was reviewed by National Land Commission. 198. Then there was the suit as against the Sixth Defendant. The same was/ is a Land Registrar, and whose only sin, was undertaking his statutory duty in accordance with the Land Registration Act, 2012. I Page 51 of 53

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am at pains to understand the basis of the suit/ claims as against the Sixth Defendant. Moreover, the evidence on record, including that of PW1, PW2, PW3, PW5, PW9, and PW10, all confirmed that the Land Registrar, does not review the work of other professionals, including; the Director of Physical Planning; the Director of Survey; or the Commissioner of Lands [now defunct], now National Land Commission. 199. To my mind, the joinder of the Sixth Defendant herein, was not well-thought out. Be that as it may, I find no basis for his joinder. The suit as against same, was misconceived; and still-borne. 200. From the foregoing, the bottom line is that the suit is bereft of merits. It is a sure candidate for dismissal. 201. To my mind, the registration in favour of the First Defendant was lawful. The First Defendant is therefore the lawful owner of the Land and thus entitled to the benefit[s] of the Suit Property in accordance with the provisions of Sections 24 and 25 of the Land Registration Act, 2012 [2016]. 202. Finally, I have agonized over the question of costs. The Law is that costs follow the events. However, courts retain and have a discretion in awarding costs, subject to the existence of a good cause; or sufficient reason. See the provisions of Section 27 of the Civil Procedure Act, Chapter 21, Laws of Kenya. 203. I have taken note of the fact that the Plaintiff is a Public and Constitutional body. In addition, it is important to point out Page 52 of 53

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that the suit was brought in Public Interest. In this regard, the order that commends itself to me is that each party shall bear own cost[s]. Final Orders. 204. Pulling the threads together, the Final Orders that commend themselves to the court are: i. The Suit be and is hereby Dismissed. ii. Each Party shall bear own costs of the Suit. 202. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 17TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo Mr. Munene for the Plaintiff Mr. A K Mwangi and Ali Ahmed for the 1st Defendant Mr. Ndegwa for the 3rd Defendant Mr. Musota for the 4th Defendant Mr. Ng’an’ga Mbugua for the 6th Defendant N/a for the 2nd Defendant. N/A for the 5th Defendant N/a for the Interested Parties. Page 53 of 53

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