1. The Plaintiffs instituted this suit by filing a plaint dated 15 April 2025, seeking the following relief against the Defendants:
a) That the director of the survey of Kenya be compelled to cancel or revoke the Folio Registration No. 133/146, Watamu Township.
b) That upon the cancellation/revocation of the Folio Registration No. 133/146, Watamu Township, the director of survey should amend and insert Plot Nos. Kilifi/Jimba 1146 and 1175 into the survey map of Kenya.
c) Costs of this suit.
d) Interest on (c) above at court rates.
e) Any other reliefs that this honourable court may deem fit to grant.
The Plaintiffs’ case
2. The Plaintiffs alleged that they had authority to represent the registered owners of the parcels KILIFI/JIMBA/1126, 1145, 1146, 1175, and 1125 (subdivided into portions 1719, 1720, and 1721), which are the subject of the present suit.
3. The Plaintiffs averred that the suit land forms part of the KILIFI/JIMBA Settlement Scheme, having been formerly Trust Land that underwent lawful demarcation, adjudication, and allocation to local residents through the Settlement Fund Trustee (SFT). Although attempts were made in the early 1990s to create a new Watamu Township, the Ministry of Local Government rejected the process, and the project was thereafter irregularly taken over by unknown persons who fraudulently created overlapping Watamu Township titles. The Plaintiffs asserted that the resulting grants were illegal, constituted double allocation, and were issued over land that was not Government land.
4. The Plaintiffs relied on the witness statement of Emmanuel Charo Tinga dated 15 April 2025 and the list of documents dated on the same date.
The Defendants’ case
5. The Defendants filed a statement of defense dated 27 June 2025, averring that the alleged overlap on land parcels KILIFI/JIMBA/1126, 1145, 1146, 1175 and 1125 (subdivided into portions 1719, 1720 and 1721) resulted from the survey of F/R No. 133/46 Watamu Township and that the overlap was between a general boundary and a fixed boundary survey. The Defendants denied the Plaintiffs' allegations of fraud and maintained that any registration was lawful. The Defendants relied on the witness statement of Wilfred Muchae Kabue, dated 14 October 2025, and the consolidated list of documents, dated 15th October 2025.
6. To address the issues raised, the parties agreed to file written submissions, which they did.
7. On their part, the Plaintiffs submitted that the titles they produced have not been disputed. The Defendants have not alleged fraud or any illegality in the acquisition of the said titles, and as such, ownership is not contested. They cited Civil Application 60 of 1997, Dr. Joseph N.K. Arap Ng'ok v Justice Moijo Ole Keiwua & 3 Others. They added that land can have only one genuine title and that Section 80 of the Land Registration Act gives courts the power to rectify the register by canceling one or more titles; rectifying RIMs/Maps; awarding compensation (damages) if the affected party is innocent; declaring the valid/legitimate owner; and granting injunctions to prevent dealing with disputed land.
8. They added that, having proved their case and given the Defendants' admission that there was an overlap, the orders sought should be granted. They also urged the Court to direct, as proposed by the Defense witness, on appropriate steps to be taken to eliminate the overlap.
9. In their submissions, the Defendants admitted that paragraph 14 of the 2nd Defendant’s witness statement reveals an overlap of surveys between plot numbers 95-153, New Watamu Township, Malindi, and the resultant parcels of plot numbers 95-153, New Watamu Township, Malindi, and the parcels of land numbered Kilifi/Jimba/1125, Kilifi/Jimba/1126, Kilifi/Jimba/1145, Kilifi/Jimba/1719, Kilifi/Jimba/1720, and Kilifi/Jimba/1721, Kilifi Jimba Registration Section, brought about by two concurrent registration processes - the land adjudication process in the Kilifi Jimba Adjudication section and the registration of plots from alienation by the Commissioner of Lands in the New Watamu Township, both covering the same geographical area.
10. Citing the case of Mohamed & 4 others v National Land Commission & 12 others (Environment and Land Petition E014 of 2022 & E005 of 2025(Consolidated)) [2025] KEELC 7597 (KLR), the Defendants urged the Court orders a ground survey be conducted to fixed survey standards across the designated area and for each party to bear its own cost.
Analysis and determination
11. It is common ground that there is an overlap among parcels KILIFI/JIMBA/1125 (including subdivisions 1719, 1720, and 1721), 1126, 1145, 1146, and 1175, and plots created under Folio Registration No. 133/146 Watamu Township. The Defendants expressly admitted that the overlap arose from two concurrent survey and registration processes covering the same geographical area.
12. In Paragraph 14 of the Defendants’ witness statement, Wilfred Muchae Kabue, an officer of the 2nd Defendant, undoubtedly admits the following:
“THAT due to two concurrent title registration processes, the land adjudication process in the Kilifi Jumba Adjudication Section and the registration of plots from alienation by the Commissioner of Lands in the New Watamu Township, both covering the same geographical area, there has been an overlap of parcels between adjudicated parcels and the township plots. This overlap has led to instances of double registration and duplicated titles over the same area, resulting in conflicting ownership rights for individuals and entities within this region.”
13. The Plaintiffs’ titles were not challenged, and no fraud or illegality was alleged in their acquisition. The issue for determination is therefore the appropriate remedial action to resolve the admitted overlap.
14. In my view, a ground survey is necessary not only to establish the existence of the overlap but also to delineate its precise extent and to guide the orderly rectification of the survey records. Both parties agreed with Mr. Wilfred Kabue's recommendations.
“THAT to resolve issues arising from overlapping land ownership rights affecting parcels within the Kilifi Jimba Registration Section and plots allocated by the Commissioner of Lands in the New Watamu Township, a ground survey conducted to fixed survey standards may be undertaken across the designated area. This process will gather accurate data regarding ownership and occupation of the parcels, facilitating the creation of a unified cadastre in accordance with the Land Registration Act.”
15. In light of the circumstances, I find that the following orders will be appropriate to grant:
a) That the Director of the survey of Kenya be and is hereby compelled to cancel/revoke, and or rectify the Folio Registration No. 133/146, Watamu Township.
b) That upon the cancellation/revocation and rectification of the Folio Registration No. 133/146, Watamu Township, the director of survey should amend and insert Plot Nos. Kilifi/Jimba 1146 and 1175 into the survey map of Kenya.
c) To fulfill (a) and (b) above, the Director of Survey shall, within ninety (90) days of the date hereof, conduct a comprehensive ground survey to fixed survey standards over parcels KILIFI/JIMBA/1125 (including subdivisions 1719, 1720 and 1721), 1126, 1145, 1146 and 1175, and the plots falling under Folio Registration No. 133/146 Watamu Township, and shall file a detailed report with the Court within the aforesaid time frame.
d) Each party shall bear its own costs.
Dated, signed, and delivered electronically in Malindi on December 17, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Amadi for the Plaintiff
Mr. Munga for the Defendants
Happy: Court Assistant
a) That the director of the survey of Kenya be compelled to cancel or revoke the Folio Registration No. 133/146, Watamu Township.
b) That upon the cancellation/revocation of the Folio Registration No. 133/146, Watamu Township, the director of survey should amend and insert Plot Nos. Kilifi/Jimba 1146 and 1175 into the survey map of Kenya.
c) Costs of this suit.
d) Interest on (c) above at court rates.
e) Any other reliefs that this honourable court may deem fit to grant.
The Plaintiffs’ case
2. The Plaintiffs alleged that they had authority to represent the registered owners of the parcels KILIFI/JIMBA/1126, 1145, 1146, 1175, and 1125 (subdivided into portions 1719, 1720, and 1721), which are the subject of the present suit.
3. The Plaintiffs averred that the suit land forms part of the KILIFI/JIMBA Settlement Scheme, having been formerly Trust Land that underwent lawful demarcation, adjudication, and allocation to local residents through the Settlement Fund Trustee (SFT). Although attempts were made in the early 1990s to create a new Watamu Township, the Ministry of Local Government rejected the process, and the project was thereafter irregularly taken over by unknown persons who fraudulently created overlapping Watamu Township titles. The Plaintiffs asserted that the resulting grants were illegal, constituted double allocation, and were issued over land that was not Government land.
4. The Plaintiffs relied on the witness statement of Emmanuel Charo Tinga dated 15 April 2025 and the list of documents dated on the same date.
The Defendants’ case
5. The Defendants filed a statement of defense dated 27 June 2025, averring that the alleged overlap on land parcels KILIFI/JIMBA/1126, 1145, 1146, 1175 and 1125 (subdivided into portions 1719, 1720 and 1721) resulted from the survey of F/R No. 133/46 Watamu Township and that the overlap was between a general boundary and a fixed boundary survey. The Defendants denied the Plaintiffs' allegations of fraud and maintained that any registration was lawful. The Defendants relied on the witness statement of Wilfred Muchae Kabue, dated 14 October 2025, and the consolidated list of documents, dated 15th October 2025.
6. To address the issues raised, the parties agreed to file written submissions, which they did.
7. On their part, the Plaintiffs submitted that the titles they produced have not been disputed. The Defendants have not alleged fraud or any illegality in the acquisition of the said titles, and as such, ownership is not contested. They cited Civil Application 60 of 1997, Dr. Joseph N.K. Arap Ng'ok v Justice Moijo Ole Keiwua & 3 Others. They added that land can have only one genuine title and that Section 80 of the Land Registration Act gives courts the power to rectify the register by canceling one or more titles; rectifying RIMs/Maps; awarding compensation (damages) if the affected party is innocent; declaring the valid/legitimate owner; and granting injunctions to prevent dealing with disputed land.
8. They added that, having proved their case and given the Defendants' admission that there was an overlap, the orders sought should be granted. They also urged the Court to direct, as proposed by the Defense witness, on appropriate steps to be taken to eliminate the overlap.
9. In their submissions, the Defendants admitted that paragraph 14 of the 2nd Defendant’s witness statement reveals an overlap of surveys between plot numbers 95-153, New Watamu Township, Malindi, and the resultant parcels of plot numbers 95-153, New Watamu Township, Malindi, and the parcels of land numbered Kilifi/Jimba/1125, Kilifi/Jimba/1126, Kilifi/Jimba/1145, Kilifi/Jimba/1719, Kilifi/Jimba/1720, and Kilifi/Jimba/1721, Kilifi Jimba Registration Section, brought about by two concurrent registration processes - the land adjudication process in the Kilifi Jimba Adjudication section and the registration of plots from alienation by the Commissioner of Lands in the New Watamu Township, both covering the same geographical area.
10. Citing the case of Mohamed & 4 others v National Land Commission & 12 others (Environment and Land Petition E014 of 2022 & E005 of 2025(Consolidated)) [2025] KEELC 7597 (KLR), the Defendants urged the Court orders a ground survey be conducted to fixed survey standards across the designated area and for each party to bear its own cost.
Analysis and determination
11. It is common ground that there is an overlap among parcels KILIFI/JIMBA/1125 (including subdivisions 1719, 1720, and 1721), 1126, 1145, 1146, and 1175, and plots created under Folio Registration No. 133/146 Watamu Township. The Defendants expressly admitted that the overlap arose from two concurrent survey and registration processes covering the same geographical area.
12. In Paragraph 14 of the Defendants’ witness statement, Wilfred Muchae Kabue, an officer of the 2nd Defendant, undoubtedly admits the following:
“THAT due to two concurrent title registration processes, the land adjudication process in the Kilifi Jumba Adjudication Section and the registration of plots from alienation by the Commissioner of Lands in the New Watamu Township, both covering the same geographical area, there has been an overlap of parcels between adjudicated parcels and the township plots. This overlap has led to instances of double registration and duplicated titles over the same area, resulting in conflicting ownership rights for individuals and entities within this region.”
13. The Plaintiffs’ titles were not challenged, and no fraud or illegality was alleged in their acquisition. The issue for determination is therefore the appropriate remedial action to resolve the admitted overlap.
14. In my view, a ground survey is necessary not only to establish the existence of the overlap but also to delineate its precise extent and to guide the orderly rectification of the survey records. Both parties agreed with Mr. Wilfred Kabue's recommendations.
“THAT to resolve issues arising from overlapping land ownership rights affecting parcels within the Kilifi Jimba Registration Section and plots allocated by the Commissioner of Lands in the New Watamu Township, a ground survey conducted to fixed survey standards may be undertaken across the designated area. This process will gather accurate data regarding ownership and occupation of the parcels, facilitating the creation of a unified cadastre in accordance with the Land Registration Act.”
15. In light of the circumstances, I find that the following orders will be appropriate to grant:
a) That the Director of the survey of Kenya be and is hereby compelled to cancel/revoke, and or rectify the Folio Registration No. 133/146, Watamu Township.
b) That upon the cancellation/revocation and rectification of the Folio Registration No. 133/146, Watamu Township, the director of survey should amend and insert Plot Nos. Kilifi/Jimba 1146 and 1175 into the survey map of Kenya.
c) To fulfill (a) and (b) above, the Director of Survey shall, within ninety (90) days of the date hereof, conduct a comprehensive ground survey to fixed survey standards over parcels KILIFI/JIMBA/1125 (including subdivisions 1719, 1720 and 1721), 1126, 1145, 1146 and 1175, and the plots falling under Folio Registration No. 133/146 Watamu Township, and shall file a detailed report with the Court within the aforesaid time frame.
d) Each party shall bear its own costs.
Dated, signed, and delivered electronically in Malindi on December 17, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Amadi for the Plaintiff
Mr. Munga for the Defendants
Happy: Court Assistant