KENYA AIRPORTS AUTHORITY VS NAKURU TEACHERS HOUSING CO-OPERATIVE SOCIETY LTD AND THUO COMMERCIAL AGENCIES LTD AND 2 Others

REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
ELC CASE NO 340 OF 2015

KENYA AIRPORTS AUTHORITY……………………………..PLAINTIFF
VERSUS
NAKURU TEACHERS HOUSING
COOPERATIVE SOCIETY LIMITED………………….1ST DEFENDANT
THUO COMMERCIAL AGENCIES LIMITED……….2ND DEFENDANT
CHIEF LAND REGISTRAR…………………………..…3RD DEFENDANT
THE NATIONAL LAND COMMISSION……………….4TH DEFENDANT
KIANJOYA ENTERPRISES LIMITED…………….….5TH DEFENDANT
DIRECTOR OF SURVEY…………………………………6TH DEFENDANT
ATTORNEY GENERAL………………………..…………7TH DEFENDANT
MUSTI INVESTMENT LIMITED……………………….8TH DEFENDANT

JUDGMENT
INTRODUCTION
The Plaintiff filed a plaint dated 10th November, 2015 which was subsequently amended on 30th June, 2020. The Plaintiff sought the following orders:
a.    A declaration that the Applicant is the rightful owner of the suit property known as Land Reference No. 23166 consolidated and amalgamated from the original property Land Reference No.s 9362/3, 4731/1, 4731/2, 6282/1, 6282/2 and 11373.
b.    An order of a permanent injunction preventing the Defendants by themselves or through entities formed or incorporated by them or by their agents, nominees or persons claiming any right of interest under or through them from trespassing, alienating, subdividing, selling, disposing off, constructing and/or in any way interfering with the Plaintiff’s peaceful possession of the suit property.
c.    An order annulling and/or cancelling all subdivisions transactions touching on the original and suit property subsequent and after the 1st day of November, 1997.
d.    An order of revocation of all titles issued by the 3rd Defendants to the 1st and 2nd Defendants and their agents or assigns and gazettment of the cancellation by the 3rd Defendant.
e.    An order of eviction against the Third Party encroachers and/or their agents, servants or others claiming through them as may be trespassing on the Plaintiff’s suit property.
f.    A declaration that the Respondent’s actions constitute trespass.
g.    General damages for trespass against the 1st and 2nd Defendants.
h.    Any further orders and/or directions as it deems fit and expedient in the circumstances.
i.    Costs of this suit and interest.

The 2nd Defendant filed a Counter claim dated 2nd October, 2022 and sought the following orders against the Plaintiff:
a.    That the prayers by the Plaintiff be dismissed with costs to the 2nd Defendant.
b.    THAT an Order of permanent injunction do issue against the Plaintiff, it’s servants, employees and/or agents from dealing with, entering, occupying, possessing or dealing whatsoever with L.R No, 4731/1 and L.R No. 6282/1.
c.    A declaration that the 2nd Defendant is the indefeasible owner and registered proprietor of L.R 4731/1 and L.R No 6282/1.
d.    A declaration that the failure to comply with the mandatory provisions of the Land Acquisition Act (Repealed) violated the 2nd Defendants legitimate expectations of fair administrative action.
e.    A declaration that the Gazette Notices No. 353 and 354 of 20th January 1983 were inadequate, irregular, illegal, fatally and legally defective.
f.    A declaration that the purported compulsory acquisition of L.R 6282/1 measuring 14.7 Ha and L.R 4731/1 without following the provisions of the Land Acquisition Act violated the 2nd Defendant’s constitutional right to property under Article 40.
g.    An Order of eviction against the Plaintiff, its agents, servants, employees from the suit land parcels.
h.    An order for vacant possession against the Plaintiff, its servants, employees and/or agents.
i.    An Order annulling, cancelling and revoking all titles issued to the Plaintiff, its assigns and/or nominees, employees, servants and/or agents in respect of L.R No. 4731/1 and L.R No 6282/1.
j.    Mesne Profits from March 2015 to date.
k.    Special damages as follows:
I.    Kshs 47,946,400.00
II.    Kshs 1,320,000.00
III.    Kshs 40,000,000.00
IV.    Kshs 1,200,000.00
Total Kshs  90,466,400.00
l.    General damages
m.    Exemplary damages
n.    Aggravated damages
o.    Interests on (i), (j), (k), (l) and (m) above.
p.    An order of restitution reinstating back the 2nd Defendant to the suit land parcels.
q.    Costs of the suit.
r.    Any further Orders and/or directions that this Honourable Court deems fit and appropriate to grant in the circumstance of this case.

The 8th Defendant filed a Counter Claim dated 7th November, 2023 which was amended on 8th October, 2024. The 8th Defendant sought the following orders against the Plaintiff and the 2nd Defendant:
a.    That the Plaintiffs Claim and the 2nd Defendants Counterclaim be dismissed with cost to the 8th Defendant.
b.    A Declaration that the 8th Defendant is the indefeasible Registered Proprietor of L.R No. 4731/1 and the Subdivisions therein; LR No. 4731/40, 4731/41, 4731/42, 4731/43, 4731/44, 4731/45, 4731/46, 4731/47, 4731/48, 4731/49, 4731/50 AND 4731/51 And Revoke and/or Cancel the Plaintiff’s amalgamated Title.
c.    In the alternative, an order for Compensation and/or refund at market value of the Property by the Plaintiff and the 2nd Defendant jointly or severally.
d.    Special Damages of Kshs 27,300,000/= for survey fees.
e.    An permanent injunction order against the Plaintiff and 2nd Defendant from interfering any anyway whatsoever with the quiet possession of the 8th Defendant. (sic)
f.    General damages.
g.    Interest on the Special Damages.
h.    Cost of the Suit.

PLAINTIFF’S CASE
PW1, Fredrick Ojunga testified that he is a land surveyor at Kenya Airports Authority and that he has worked at Kenya Airports Authority since January 2024 and has twenty years’ experience. He is familiar with the matter and has a written statement dated 25th September, 2024 which the court adopted as part of his evidence in chief. He produced a list of documents as PExhb 1 to PExhb 9 to prove the plaintiffs case. He summarized the plaintiff’s case that individuals have encroached on land acquired by the plaintiff through compulsory acquisition and yet they were duly compensated. His witness statement was based on his investigation and available documents. That it was also due to investigations done by their security agency that they unveiled the truth.
He stated that the Gazette Notice No 353 dated 20th January, 1983 was relevant to Section 6(2) of the Land Acquisition Act that  required that the Government to give notice. The the notice gave a list of attached proprietors who were:
a.    -LR No 9363/3 Ha (part) the interested person being Delamere Estates Ltd with land to be acquired being 21.3 Ha.
b.    LR No 4731/2 the interested person being Waka Ltd with land to be acquired being 5.2 Ha.
c.     LR No 6282/1 (part) the interested person being Waka Ltd with land to be acquired being 14.9 Ha.
d.     LR No 4731/1 (part) the interested person being Waka Ltd with land to be acquired being 81.77 Ha.
e.    LR No 6282/2 (part) the interested person being Waka Ltd with land to be acquired being 1.62 Ha.
f.    LR No 11373 (part) the interested person being Ndiuni Farmers Ltd with land to be acquired being 81.6 Ha.
The notice gave indication of the intended persons and the physical location. The notice is dated 20th January, 1983 and signed by J R Njenga Commissioner of Lands. The land was being acquired by Kenya Airports Authority and it has to be used for an airstrip. He testified that there is an adjusted notice No.354 of 20th January, 1983. The transaction was governed by the Land Acquisition Act Cap 295. Under Section 9 (1) of the Act they were the applicants and this was for purposes of an inquiry. The preparations listed are the same and the notice gives the time and date for the public inquiry. He contends that the notice is dated 20th January, 1983 and it is the same date with the notice of intention to acquire.

The parcels had titles and investigations were undertaken by his colleagues including one Bethwel Koech. There was consideration and amalgamation. He testified that there is Grant number 75786 and it is for a 99 years lease from 1st November, 1997. PW1 testified Kenya Airport Authority cannot grant themselves the land. He testified that the parcels of land were amalgamated and became L.R 23166.

It was PW1’s testimony that the grant was issued in 1997 and the land has been subdivided and he has not seen any cancellation of grant. PW1 testified that the L.R number 4731/1 was properly acquired and it is IR No 38516 with an acreage of 82.70 Ha. He further stated that a search was undertaken on L.R Number 6282/1 and its I.R Number was obtained as 12809 and a copy of title obtained in the name of Thuo Commercials Agencies having been issued on 9th March, 1984 containing by measurement 14.9 Ha. That the plan for amalgamation came later. This matter is before the Ethics and Anti-Corruption Commission (EACC). He testified that they are looking for funds to secure the boundary.

Upon cross-examination by Counsel Nancy Njoroge, PW1 stated that he joined the Kenya Airports Authority in 2024 and that the survey was requested by his former chairman and was done by Mr. Nthiga whose services were outsourced. He visited the land late in 2024 to assess occupation and found that the land is encroached by 87.6 Ha and the land is not fully occupied and about 51 acres has buildings. The title to Kenya Airports Authority was issued as a grant after amalgamation. He was shown a title and he stated that it is issued under Registered Lands Act (repealed). 
Upon cross-examination by Counsel Githui, PW1 stated that from the listed portion, there is no name of Thuo Commercial Agencies as an interested party. The notice does not indicate which public body was acquiring the property and those interested were notified and he does not have evidence that they were served. The inquiry was on 4th March, 1983 and he requested for more time to confirm on the details of the inquiry.  There were awards and compensation. He wrote a statement on 25th September, 2024. PW1 stated that he never obtained a correspondence file. He stated that there are developments on the suit parcel and he does not know the owners of the structures. PW1 stated that Mr. Charles Omwega is his predecessor and his statement is similar to that of Charles Omwega.

Upon cross-examination by Counsel Chekurui learned state counsel, PW 1 stated that the land was acquired in 1983 under the Land Acquisition Act and compensation was made to the owners of the land.
Upon cross-examination by Counsel Ngugi, PW1 stated that he is not the Director of Plaintiff and he does not have the written authority by Director and that this case is not about parcel 4731/2 alone and there are other properties under contention. He stated that everybody has a right to be heard and that parcel LR No.9363/3 is for the Delamere Estates Ltd and they are not a party in this suit.  Delamere Estates Ltd donated the land for purposes of constructing the airstrip. The area contended is close to the Delamare Estate. PW1 stated that Delamere Estate donated 21 Hectares which is close to 50 acres. PW1 further stated that the gazette notice is available. He stated that the letter dated 6th March, 1996 shows that Delamere Estate was not paid. That there were allegations of non-payment and the grant was issued in 1997.  PW1 stated that compensation was proper and was done in three years. He stated that there was surrender but he did not see it. He further stated that there was no correspondence file and there was no appeal by the National Environment Management Authority (N.E.M.A). He is aware that N.E.M.A has decided that the land is not liable for any airport but the plan was not approved.
Upon re-examination, PW1 stated that the land is partially occupied and the occupants are in illegal possession. He testified that the titles are in the names of Thuo Commercial Agencies and the titles were under Registration of Title Act and that the initial title was freehold and the Kenya Airport Authority titles were under leaseholds. The defendants have titles as absolute proprietors. He agreed that it is possible to convert title from Registered Title Act to Registered Land Act. He testified that there is a list of witnesses and Delamere Estates is not a party.

PW2, Bethwel Kiplangat Arap Koech, an employee of Kenya Airport Authority as a security Officer testified that he is an investigator under   the International Civil Aviation Organization (ICAO based in Eldoret town in Kenya. He has worked for Kenya Airports Authority for twenty-two years and he is familiar with this matter. In the year 2024, he was appointed to do an investigation in respect of the property. He has filed a witness statement dated 5th March, 2020 which was adopted by the court as part of his evidence in chief. He is aware of this claim and that has a report dated 18th May, 2015 at pages 237 to 243 of the Plaintiff’s trial bundle. PW2 testified that he found that the land belonged to Kenya Airports Authority. He testified that he met various people before investigations.

The land was acquired though compulsory acquisition. The six parcels were amalgamated into one parcel LR No 23166 making 208.5 Hectares. PW2 further testified that he has a report by A.K Munyasya, the Regional Surveyor Rift valley. He testified that the report is dated 29th January, 2020. He testified that the findings were that all parcels acquired were amalgamated. He testified that in respect of LR No 23166, it was recommended that a search be undertaken. It was recommended that Kenya Airport Authority should seek to evict all the encroachers as the owners of the land had been compensated and that there was evidence of compensation. The letter dated 15th April, 1994 is authored by Director of Aerodromes. PW2 testified that the letter dated 6th March, 1996 at page 16 of the Plaintiff’s trial bundle showed that money was paid and compensation was carried out to conclusion.

PW2 testified that at page 162 of the Plaintiff’s trial bundle is a payment voucher dated 18th February, 1986. The author is the Commissioner of lands and there was payment which was made as follows:

a.    Delamere Estate Ltd for LR No 9362/3- Ksh 448, 310.25/=
b.    Kianjoya Ent Ltd for LR Nos 4731/2 & 6282/2- Ksh 167, 348/=
c.    Thuo Commercials for LR No 6281/1 –Ksh 2, 292, 870/=
d.    Ndiuni Farmers for LR No 11373 for Ksh 2,088,040/=.

PW2 informed the court that he has a vesting notice dated 28th May, 1986 and the notice is related to L.R No.6281/1 which is approximately 14.9 Ha. PW2 testified that this land is marked in the payment voucher. He produced the vesting order as PExhb10 and that he has a document from the department of lands signed by Mr. Nduma Thuo of Thuo Commercial Agencies in respect of L.R NO 6281/1 and 4731/1 dated 6th June, 1986. He testified that Ndua Thuo received compensation produced the document which was marked by the court as PExhb No 11.
PW2 produced a sale agreement dated 26th July, 2013 between Thuo Commercial Agencies and Catholic Diocese of Nakuru. He testified that it is in respect of LR No 6281/1. The land was not available for sale as it had been acquired by the government of Kenya. PW2 testified that at page 59 of the Plaintiff’s trial bundle makes reference to a letter in respect of payment to Kianjoya Enterprises Limited. He testified that payment for parcel LR No 6282/2 and LR No 4731/2 was made. PW2 testified that at page 180 of the Plaintiff’s trial bundle, there is a caveat in respect of all parcels of lands mentioned in the Gazette notice which has not been lifted and he prayed for judgment in the matter.
Upon cross-examination by Counsel Nancy Njoroge, PW2 stated that he is in court as an investigator and that in his investigation, he found that the Kenya Airports Authority got title in 1997 but part of the land had been converted to leaseholds. The plaintiff did not register caution in respect of parcels of lands registered under the Registered Land Act (RLA).  He went to the Director of Surveys and obtained a survey plan. The vesting was done on 28th May, 1986. Kenya Airport Authority took possession of the land on 28th May, 1986. PW2 stated that he saw several permanent structures on the ground. He stated that there are Internally Displaced Persons (IDP) as a result of the Post-Election Violence of 2007. He stated that Molo IDP’s are on 10 acres and that they did not show them ownership documents. He has not sought for cancellation of the titles.

Upon cross examination by Counsel Githui for the 2nd defendant, PW2 stated that he investigated the case of the Catholic Diocese of Nakuru and he found their activities on the parcel of land illegal. PW2 stated that he has no documents that the interested parties were served with the gazette notice. He did not find any notices served upon the parties and there is no evidence of service.

PW2 further stated on cross examination that that money was paid to Thuo Commercial Agencies through the Commissioner of lands. The Gazette notice shows that the Plaintiff acquired part of parcel number LR No 6282 and that compensation was for the entire land. The payment voucher shows the payee as the Commissioner of Lands. PW2 stated that the money was received by the Commissioner of Land on behalf of the interested party. Mr. Ndua Thuo received payment from the Commissioner of Lands as compensation for L.R No 6281/1. PW2 stated that he is not aware that the titles were registered in the names of the plaintiff as he was unable to obtain a correspondence file and that the notice was to take effect after the money was released. The survey was to confirm co-ownership and Professor Kithure Kindiki was the advocate for Kenya Airport Authority.
Upon cross-examination by Counsel Ngugi, PW2 stated that parcel L.R No 23166 owned by Kenya Airports Authority was converted into a freehold title. PW2 stated that the report he made was meant for his Director and was written after the filing of the case. He confirmed that there was no case by Delamere Estates. He stated that the six portions formed parcel LR No 23166.

Upon re-examination, PW2 stated that the occupants are illegally on the land and that the caveats are on record and that the 2nd defendant was paid and the payment was on 6th June, 1986.

1ST DEFENDANT’S CASE
Solomon Kibaki Kariuki testified as DW1 that he lives at Weru Narok and he is a retired teacher. He knows Nakuru Housing Corporative Ltd and before he retired, he was the secretary. DW1 relied on a statement dated 7th June, 2016 which was adopted by the court as part of his evidence in chief. According to DW1, Nakuru Teachers Housing Co-operative Society Limited purchased two parcels of land from Kianjoya Enterprises Limited. He testified that they purchased parcels LR No 4731/2 and LR No 6282/2 on 30th October, 1989 at a consideration of Kshs12,000,000/=. DW1 testified that they paid the money in full and they acquired the two parcels of land. They had to engage a surveyor thereafter for purposes of subdivision and as they were doing the sub-division, they received a letter dated 10th December, 1996 advising them that the land had been acquired by Government for construction of a Nakuru civilian airstrip. Upon receipt of the letter, they stopped what they were doing and went back to Mr. Maina Wanjigi and asked him why he sold them land acquired by government. They sued him in High Court case number 208 of 2004.  DW1 stated that the court delivered a judgment and found the land to be government land. Mr. Maina Wanjigi compensated them the whole price of land in the catholic area.
Upon cross-examination by Counsel Mutwiri, DW1 was shown a letter dated 10th December, 1996 and stated that he was not an official. He stated that he is aware of the compulsory acquisition. DW1 stated that the court affirmed the ownership of the land to Kenya Airports Authority. DW1 stated that the land was more than 300 acres and it was in respect of parcel numbers LR 4731/2 and LR 6282/2. According to DW1 the titles were to be surrendered to Kenya Airports Authority.

Upon cross-examination by Counsel Ngugi, DW1 stated that parcels LR No 4731/2 and 6282/2 were amalgamated between 2017 and 2019. DW1 stated that they bought the land in 1989. DW1 further stated that if the land had been amalgamated, they could not have succeeded in paying the consideration and the conducting the subsequent amalgamation.
Upon re-examination, DW1 testified that Justice Munyao did not order them to surrender the title and he was to give directions which were not followed. DW1 testified that he did not find any hindrances.

2ND DEFENDANT’S CASE
Maina Ndua, a businessman testified as DW2 that he is and he is a Director of Thuo Commercial Agencies Ltd. That there are two Directors being his mother and himself. That his mother’s name is Virginia Waithera. He relied on the amended statement of defence in the counter- claim dated 2nd October, 2022. He asked the court to adopt the witness statement as his evidence in chief.
He is aware of the 8th Defendant called Mufti Investment Limited. He filed a defence and Counter claim against the 8th Defendant on 18th November, 2024. He further filed a witness statement dated 14th November, 2024 and his signature is on the statement. DW2 testified that he is not aware of any compensation to the 2nd Defendant. DW2 also testified that he is not aware of the subdivision of his land. DW2 stated that he has the original tittles to the land parcels being LR No. 6282 and 4731/1. According to DW2, the letter from the National Environment Management Authority (NEMA) at page 142 of the Plaintiff’s trial bundle shows that they cannot be allowed to put up an airport at the site. DW2 was shown PExhb No 11 and stated that he is not aware of any payment to Mr. Ndua Thuo. DW2 testified that Mr. Ndua Thuo is his father and he passed away.  DW2 prayed that the court evicts the Plaintiff from the land. He stated that they have caused a lot of damages. DW2 also asked the court to allow counter- claim.

Upon cross-examination by Counsel Njoroge, DW2 stated that the area is not suitable of the airport. DW2 stated that Kenya Airport Authority is not in possession of the land and it is vacant. DW2 stated that there is development around it and nobody has sought cancellation of the title.
Upon cross-examination by Counsel Kamau, DW2 was shown 2nd DExhb 1 and stated that the owner of the land is Nakuru Teachers Housing Cooperative Society. DW2 stated that he is the Director of the 2nd defendant. DW2 stated that he became a director in 2020. DW2 was shown an extract from the Business Registration Service portal and stated that it is the position as per the Registrar of Companies. DW2 stated that he became a director on 22nd April, 2020. DW2 further stated that his late father and mother were the directors and the total number of shares were two. DW2 stated that he was allotted one share and there are three directors each with one share.

DW2 stated in cross examination that he submitted a CR.12 but did not produce a document to show that he was a director. DW2 stated that there is no court resolution to allow him to file documents and testify. DW2 stated that Virginia Waithera is a director and she has not signed any document. DW2 stated that she has not participated in the proceedings and she is aware of the proceedings. DW2 stated that he is not in possession of the property. That he has prayed for an order of eviction of the eight defendants from the subject land. The 8th Defendant is not on the land. The signatures of the 8th defendant and of the 2nd Defendant are not the same.  DW2 stated that he was a director as from 2020 and before 2020, he was not a director. He knew all the directors of the company before 2020. DW2 further stated that the land was registered in the name of the company in 1984. DW2 stated that before the emergence of Thuo Commercial Agencies Ltd, the land was registered in the name of Waka Ltd. DW2 stated that the notice was issued to Waka Ltd and there was no communication to Thuo commercial Agencies. DW2 stated that the payment vouchers were made on 18th February, 1986. DW2 stated that the land is shown as LR No 6282/1. DW2 stated that by 1986, the land was in the name of Thuo Commercial Agencies and his father never received the money.


Upon cross-examination by Counsel Mutwiri, DW2 stated that the cheque number is not clear and the first digit is not clear and the rest are 17699. He stated that it shows Mr. Ndua received the money. DW2 further stated that Thuo Commercial Agencies received the money. The CR12 dated 6th May, 2020 was produced as DEXhb No 16 by consent of the parties. He stated that he cannot confirm that Thuo Commercial Agencies signed the document. DW2 stated that the identity card numbers are not the same in the agreement with that of the 8th Defendant and the difference is in the numbers 167. DW2 stated that the Gazette notices were issued in 1983. He stated that the title No IR  38316 was registered on 9th March, 1984. He stated that the survey plan was 11138 and part of it was to be acquired but it wasn’t.  DW2 prayed that Kenya Airports Authority be evicted from the suit properties. He stated that there is a crucial case involving the Catholic Church and that Thuo Commercial Agencies refunded the Catholic Church Chairman Kshs 66,000,000.
Upon re-examination by Counsel Githui, DW2 stated that the voucher dated 6th May, 1986 was paid to the Commissioner of Lands. The plaintiffs were paying the Commissioner of Lands and the voucher at page 167 of the Plaintiff’s trial bundle was from the Plaintiff to the Commissioner of Lands. DW2 stated that the payment voucher dated 18th February, 1984 was from the plaintiff to the Commissioner of Lands and not to Thuo Commercial Agencies Ltd. That the acknowledgement shows that there should be a witness. That he does not see a stamp for a witness. He is the registered owner of parcel 6281/1 and he was registered as the owner on the 9th March, 1984. DW2 testified that the compensation was for the whole of land parcels 6281/1 and 4731/1. DW2 stated that it does not show part of the land.

According to the witness, Thuo Commercial Agencies Ltd does appear in the Gazette notice dated 20th January, 1983 and Thuo Commercial Agencies Ltd was not the registered owner as it was incorporated in 2020.  DW2 testified that they have no documents in the file and both the payment documents have been brought by the plaintiff. That they are the owners of parcel 6282/1.

8TH DEFENDANT’S CASE
Stephen Muturi Ngugi testified as DW3 that he is the Director of Musti investment Ltd, the 8th Defendant who is the owner of the property No 4731/1 and the property exists. He testified that the property is subdivided into twelve parcels which are subdivided from land parcel 4731/1. He relied on his statement dated 15th October, 2024 which adopted by the court as part of his evidence in chief. DW3 produced 8th DExhb 1 to 8th DExhb No 12.
Upon cross-examination by Counsel Mutwiri, DW3 stated that he has been in possession of the property from January 2017. He has no document of possession and he does not have any claim against the Kenya Airport Authority. DW3 stated that he can see the caveat given on Tuesday 3rd November, 2015. He stated that his property is land parcel number 4731/1.

DW3 stated that at Page 177 of the Plaintiff’s trial bundle is a caveat and it refers to land parcel number 4731/1. DW3 stated that the property was transferred lawfully and that he has the original title and the title was transferred to his company. DW3 further stated that the seller informed him that the property was commercial and not agricultural. DW3 stated that he has evidence of rates and he does not have evidence of payment of stamp duty. DW3 stated that he has not located the documents. DW3 stated that his advocate who prepared the agreement died and he was known as Mr Oyola. DW3 stated that Mr. Oyola was practicing alone. DW3 stated that the firm is still running but the person running it is abroad. He purchased the property from the 2nd defendant but does not have a certificate of official search.
Upon cross-examination by Counsel Audi, DW3 stated that the agreement in itself was an acknowledgment. DW3 stated that they paid the 2nd Defendant in cash and the money was paid upon the signing of the agreement. DW3 stated that the proof is the agreement and Mr. Ndua took the money and his proof is the agreement. DW3 stated that the purchase price was Ksh 82,000,000 which he paid. DW3 stated that the initial deosit of Ksh 52,000,000 was paid in cash and the balance within one and a half years. DW3 stated that he has the acknowledgement of the amount of Ksh 52,000,000. DW3 stated that his company is involved in sale of land and properties and the purchase price was for the whole land. DW3 stated that they agreed on the price of the whole parcel of land which was Kshs 82,000,000.
He stated that he learnt about this case when he sent a buyer to the site who was informed that there was a case by Kenya Airports Authority and Thuo Commercial Agencies.

Upon re-examination by Counsel Ngugi, DW3 stated that the claim by Kenya Airport Authority that they own the property is not true because he owns part of the property having purchased it in 2015. The 2nd defendant transferred the property to him and there was no default.

Peterson Thuo Wahinya testified as DW4. He testified that he recorded a statement dated 18th November, 2024 which was adopted by the court as part of his evidence in chief.
Upon cross-examination by Counsel Mutwiri, DW4 stated that the injunctive orders includes lifting of the caveat. He testified that he is aware of the sale agreement. DW4 stated that Mr. Thuo received Kshs33, 000,000/= from the 8th Defendant and the deposit was Ksh 20,000,000/=. He stated that the second valuation was part of the deed. DW4 stated that they cleared the balance of Kshs32, 000,000. He stated that is not odd to carry Kshs82, 000,000 in cash. DW4 stated that the agreement was for 180 days. He stated that the agreement was signed on 5th January, 2017 and the amount of money was paid outside the completion period. DW4 stated that the property was sold to the prospective buyer and he was not aware that the property belonged to Kenya Airport Authority.

Upon cross-examination by the 2nd Defendant’s counsel, DW4 stated that his signature is in his statement. He stated that he has not adduced any agreement of employment. DW4 stated that he has no document attached and he has no agency agreement with Mr. Thuo. DW4 stated that goons chased him away in 2016. He stated that the Kikuyu council of elders meeting did not proceed due to interference from goons. He stated that he has a document but it is not in court. DW4 stated that in 2016, Mr. Ndua decided to sue Kenya Airport Authority and Mr. Thuo was running for the position of a senator. He stated that his uncle was unwell and he cannot remember when he went to India but he remembers that he came back between 2019 and 2020. DW4 informed the court that he participated in the agreement for sale and the agreement was signed by Ndua Thuo. DW4 stated that there is no signature for Waithera Thuo. He stated that he received the money on behalf of Thuo Commercial Agencies Ltd. DW4 stated that he does not have evidence that Thuo Commercial Agencies Ltd received the money. DW4 stated that he has been visiting the advocate’s office. Upon re-examination, DW4 testified that Mr. Daniel Gikaria was also claiming the property and the goons were associated with Mr. Gikaria. He testified that there was no complaint by either party. DW4 stated that time line was never an issue and his uncle was doing campaigns. DW4 stated that Mr. Thuo signed a transfer form and that the full amount was paid and was acknowledged.

7TH DEFENDANT’S CASE
Caleb Wanjala Sunguti testified as DW5. He testified that he is the Deputy Chief Land Registrar in the Ministry of Lands. He stated that he is in court pursuant to summons. He has compiled a report dated 20th August, 2025. There are eight parcels of land and so far parcel number 4731/2 has a caveat. DW5 testified that there is parcel number 38516 which was initially owned by Thuo Commercial Agencies Ltd. He testified that a caveat was withdrawn on 4th June, 2018. DW5 testified that parcel number 53642 has a caveat. He testified that parcel number 71932 LR 9363/3 is not in Nakuru and it is situated in Nairobi owned by Young Traders Ltd.  DW5 went on to testify that in respect of Land Reference No. 23166, I.R No.75786, there is no indication on the grants. He testified that it is in the name of Kenya Airport Authority. He testified that the parcels were acquired through compulsory acquisition. DW5 produced bundle of documents which were marked by the court as 7DEXhb 2.

Upon cross-examination by Counsel Mutwiri, DW5 stated that IR-75786 was as a result of an amalgamation. DW5 stated that they need to do a historical search in respect of the title. He stated that the titles had not been closed for amalgamation.  DW5 stated that he has never seen the survey plan number 216045 and he has not seen the records. DW5 stated that he went to the land and the mutation officer did not trace the plan. DW5 informed the court that there is a notice to take possession of LR No.11373 (part) measuring 81.60Ha

DW5 further stated that number 11373 was parcel number eight in the list of parcels that he investigated. He stated that the parcel in number 2110 is the same as 11373. DW5 stated that his conclusion is that land parcel number 11373 was compulsory acquired by the Commissioner of Lands from Kenya Airports Authority. DW5 stated that from the gazette notice No.353 gives out the parcels of land to be compulsorily acquired.

DW5 went on to state that if you do the calculations, it adds up to the land compulsorily acquired. DW5 went on to state that his conclusion is that there was payment made to Thuo Commercial Agencies. DW5 stated that he does not have any evidence that payment was made to Thuo Commercial Agencies. DW5 informed the court that from his experience, once land is acquired there is regulation of the acquisition. He stated that one surrenders the title and the parcel goes to the public body in respect of whom the land was acquired. DW5 stated that the title is extinguished and once completion is done, it becomes public land. DW5 stated that once there is a gazette notice, the land automatically goes to the acquiring body. He stated that there is a window of appealing. DW5 stated that there was no appeal on the compulsorily acquisition. He stated that there is a leasehold from the Government of Kenya for 99 years from 1st November, 1997. He stated that the tenure is proper and thirteen conditions were given. DW5 stated that there was a deed plan and he does not know whether it has been cancelled.

DW5 further stated that Kenya Airports Authority had applied for a caveat and the parcel is in the gazette notice. DW5 stated that there was no indication of surrendering the titles and there is no pending administrative action. He stated that the ruling of 25th September, 2018 came later and it did not lift the caveat. DW5 stated that the process of acquisition has not been finalized and there is pending registration of title. DW5 stated that once it has been noted, it becomes the property of the state. He stated that Kenya Airports Authority has a title.

Upon cross-examination by Counsel Nancy Njoroge, DW5 stated that Nakuru Teachers Housing Co-operative Society Ltd obtained titles for 53643. He stated that the original number was 2322 IR and the land Registration No.4731/2 is still in the name of Nakuru Teachers Housing Co-operative Society Ltd. DW5 stated that no subdivision has been done in respect of 6282/2, IR 53642 and it is in the names of Nakuru Teaches Housing Co-operative Society Ltd. DW5 stated that he has the files for parcels and he does not have the correspondence files. DW5 stated that it is not indicated that the titles were subdivided to members.

DW5 went on to state that from the records, the land was given to Kenya Airports Authority and there is no indication of amalgamation. DW5 stated that without a vesting order, the title to Kenya Airports Authority was questionable. DW5 stated that the owners ought to have surrendered their titles. DW5 stated that the mistakes were done by the Commissioner of Lands. DW5 stated that the process of compulsory acquisition had not been completed and the Commissioner of Lands should register the land in the name of Kenya Airports Authority.

Upon cross-examination by counsel Githui, DW5 stated that Land Registration No. I.R 38616 is registered in the name of Thuo Commercial Agencies Ltd. DW5 stated that the ruling of the court was dated 13th October, 2016. DW5 stated that the property was further subdivided. He stated that acquisition was for part of the land parcel number 4731/1. DW5 stated that parcel number 4731/1 belonged to Waka Ltd. DW5 stated that the letter dated 8th April, 1986 is from Land and settlement. He stated that the value was for a borehole and house were to be made to David Thuo. DW5 was shown a letter dated 8th July, 1986. DW5 stated that the owner of 4731/1 had not been compensated. DW5 was shown page 167 of the Plaintiff’s trial bundle and he stated that Kenya Airports Authority paid the commissioner of lands Kshs177,710 for the house and borehole. He stated that there was no notice to the original owner to surrender the title deeds.

Upon cross examination by counsel Ngugi, DW5 stated that the title to Kenya Airports Authority was issued via a grant. He stated that the process was to be acquisition, amalgamation and issuance of title.  DW5 stated that the process followed by the plaintiffs was not correct. DW5 stated that Grant No.71932 was as a result of amalgamation. DW5 stated that land reference 9363/3 is not in Nakuru and it is not owned by Delamaire Estates. He stated that it is owned by Young Traders Ltd. He stated that the parcels acquired were for Delamare Estates and Waka Ltd. He stated that Thuo Commercial Agencies was not a party. DW5 informed the court that there is no other notice. DW5 stated that Waka Ltd owned the property in 1972 and they sold to Thuo Commercial Agencies. DW5 stated that the transfer was on 9th March, 1984 and the gazette notices were on 20th January, 1983.  He stated that there was a transfer in respect of parcel number 4731/1 to Thuo Commercial Agencies.

DW5 stated that on the parcel owned by Nakuru Teachers Housing Co-operative Society Ltd, there was a charge in 2007 and this was for parcel 53643. DW5 stated Nakuru Teachers Housing Co-operative Society Ltd acquired parcel 62822 from Waka Ltd. DW5 further stated that parcels I.R 21109, L.R 11373 was transferred to Ndiuni Farmers Ltd. He stated that on grant No IR 21109 L.R 11373, the vesting order was issued. DW5 stated that the vesting was done in 1986 and the entry was made in 1992. DW5 stated that the surrender was done in 1999. DW5 stated that he does not have any letter for other parcels or the vesting order for other parcels. DW5 stated that the title has no indication and he does not have any other record.                                                                                                 

Upon re-examination, DW5 testified that the letter dated 15th May, 1986 is from the vesting order. He testified that there were several parcels amalgamated. He testified that there were vouchers dated 18th February, 1984 and it refers to parcel number 9362/3. DW5 testified that payment was made for the suit lands. He testified that once the payments are made, it belonged to the Government. DW5 testified that the titles were not surrendered. He testified that where titles are not surrendered, they issue a gazette notice that the transaction will proceed. DW5 testified that in this case a gazette notice was issued.
Ojwang Omolo Patrobas testified as DW6. He testified that he is the Deputy Director Land Adjudication. He confirmed that he has filed a report on the land in question and the report is dated 14th October, 2025. He asked the court to rely on the report. DW6 testified that there are five documents. He testified that his report is about the process of compulsory acquisition conducted by the Commissioner of lands on LR NO. 4731/1,4731/2 6282/1, 6282/2.9362/3 and L.R 11373 and his report outlines the process. The legal implementation of a vesting order is that the property ceased belonging to the previous owners and now belongs to the Kenya Airports Authority. He further testified that there was a requirement that the previous owners were to deliver the documents of the title for amendment. He testified that any sale of land was illegal. He testified that the report and documents were produced as 7th DEXhb No 3.

Upon cross-examination by counsel Mutwiri, DW 6 stated that there were notices to acquire property under the Land Acquisition Act. He testified that at page 4 of the report is a corrigendum and it was corrected from LR No.9362/3 to read 9363/3. DW6 stated that it was a proper administrative process and notices were addressed to the land owners. DW6 stated that there was no objection and there were no court challenges. DW6 stated that Mr. Ndua Thuo of Thuo Commercial Agencies collected the money and his identity number is 4853980/67. DW6 testified that he collected cheque No. D14/017699. DW6 stated that Simon Munyao Motuku signed the document on behalf of the registered owner of L/R NO. 6282/2 and 4731/2. DW6 stated that the cheque number was D14/017698 for Kshs167,348 to the 5th Defendant and the corporation was paid in full. DW6 stated that there is a notice dated 28th May, 1986. He stated that the notices were served on the land owners. DW6 stated that they were required to surrender titles and the owners did not surrender them and they defied the orders. DW6 stated that the Commissioner of Lands instructed the Director of survey to consolidate the parcels. DW6 stated that the acquired parcels were consolidated into one parcel land L.R 23166.

DW6 stated that the Commissioner of Lands prepared a grant in the name of Kenya Airport Authority.  He stated that the parcel is 208.5 Hectares and there is a deed plan. DW6 stated that from Page 53 to 54 of the report is a form showing the documents for execution. He stated that the grant originated from the land officer to the Commissioner of Lands.  DW6 stated that the grant was given by the president and the land was compulsory acquired. DW6 stated that at page 3 of 6 at paragraph two should read 25th May, 1983 and not 18th June, 1984. He stated that the plots were never de-gazetted. DW6 stated that the owners did not refund the money paid and the compulsory acquisition complied with the process.
He stated that the deed plan was prepared and the grant was issued on 31st December, 1997 and it was registered on 31st December, 1997. DW6 stated that it was registered on 3rd February, 1998 and no other title was to be issued. DW6 stated that Kenya Airports Authority was issued with a grant in 1998. The title was issued in 2019. DW6 stated that a formal letter is required to be addressed to the Commissioner of Lands requesting conversion from leasehold to freehold and reasons have to be indicated. DW6 stated that the Commissioner of Lands would conduct an inquiry. DW6 stated that the conversion would be approved and the outcome would be communicated formerly to the applicant. DW6 stated that valuations would be done. DW6 further stated that the applicant would be informed. He stated that if it was a grant to the government, it would issue a grant as a freehold interest. DW6 stated that one of the conditions of approval is surrender of a freehold title to a leasehold title. He stated that a grant can be issued to a freehold title and the grant could be registered under Cap 300 Laws of Kenya.

DW6 stated that the Commissioner of Lands then instructs the Director of survey to do a survey to be registered under Registration of Land Act Cap 300. He stated that the Commissioner of Lands would forward the new R.I.M and a register is then opened. DW6 stated that a title deed is then issued. DW6 further stated that the office of communication of lands is involved. DW6 stated that he has the letter allotment to Kenya Airports Authority and that payment was of Ksh 3,602 made. DW6 stated that he does not have the receipt in court but it is somewhere in the office.

DW6 stated that the requirement was in the notice for taking possession and the land was for construction of an airport. He stated that the position has not changed and the land is for an airstrip.

Upon cross-examination by counsel Githui, DW6 stated that the land being acquired was part of 4731/1. DW6 stated that the government was acquiring 81/77 Ha. He stated that the proprietor was Waka Ltd and the land belonged to Waka Ltd. DW6 stated that there was only one correction on the Gazette notice to affect LR No.9362/3 and not 9363/3. DW6 stated that there was a letter postponing an inquiry dated 16th February, 1983.

DW6 stated that there was an award to Thuo Commercial Agencies. He stated that there was an error on the award on land parcel 4731/1. DW6 stated that the position of the award does not change. He stated that there is a payment voucher addressed to the Commissioner of Lands. He stated that the payment voucher is an internal document.

DW6 stated that on 8th July, 1986, there was a letter from the Commissioner of Lands. That cheques were paid and the proprietors were not paid initially for LR number 4731/1. He stated that the document at page 36 of the report was collected by Munyao Mutuku and page 34 does not have acknowledgement. That Mr. Ndua Thuo received Kshs2,292,870/= and the payment voucher shows Ksh 2,292.870 for parcel 6281/1. DW6 stated that the acknowledgment dated 6th June, 1986 was for two parcels of land.  DW6 stated that compensation was given and the land was to be used for offices and airport facilitates. DW6 stated that National Environmental Management Authority (NEMA) refused to allocate a permit to construct an airport. He stated that according to the letter, N.E.M.A could not allocate a permit.

Upon crops-examination by counsel Audi, DW6 stated that there is a letter addressed to Waka Ltd postponing the inquiry. DW6 stated that Thuo Commercial Agencies did not participate in the inquiry. That the inquiry is supposed to ascertain the interest of the owners of the land and agree on purchase price. He stated that as at the date of the letter in 1983, Thuo Commercial Agencies was not in the picture. He stated that parties are made aware by Gazette Notice and Thuo Commercial Agencies was not in the Gazette Notice. He stated that the acquiring entity was not named and the purpose is indicated. DW6 stated that the government was acquiring 81.77 Ha and the Gazette notices indicates LR 4731/1 measured 81.77 Ha. He stated that the two L.R numbers were paid for.

Upon cross-examination by counsel Ngugi, DW6 stated that he has taken an oath as a senior government officer. He stated that the letter dated 13th April, 1984 is relevant. He further stated that the letter at page 8 emanated from their office. DW6 stated that he has a draft of a corrigenda and it is for a property owned by the Delamare Estate Ltd. DW6 stated that Delamare Estate Ltd is not a party and the corrigenda is related to the property.  DW6 stated that Delamare Estate Ltd did not collect any cheque.  He stated that the register entries were made in May 1986 and June 1986. DW6 stated that he has a letter by Thuo Commercial Agencies Ltd confirming the process and he has not carried it to court. He stated that at page 3 of 6 of the report, it shows that the Commissioner issued awards. DW6 stated that the vesting orders were issued to parties and there is no evidence of an award to Thuo Commercial Agencies. DW6 stated that the land now vests in the government. He stated that there is no evidence of vesting in the government and compensation comes before vesting.

DW6 stated that compensation was done in May 1986 and the vesting notices closed on 28th May, 1986. DW6 stated that vesting was done prior to payment and the allotment letter was for an unsurveyed plot. He stated that various parcels of land were acquired and the land had been consolidated. DW6 stated that there were more parcels of land and the survey was done in 1994. DW6 stated that page number 43 is relevant. He stated that survey is a long process and the deed plan was issued after allotment.  DW6 stated that the payment was made on 23rd December, 1997 and thirty days had lapsed. DW6 stated that in practice, the offer never lapses. DW6 stated that Ksh 250,000 did not originate from Thuo Commercial Agencies Ltd and it originated from the Commissioner of Land. He stated that at page 23 of the report, the signatures are of the same person.

Upon re-examination, DW6 stated that the documents were signed and the address is the same and that they are signed by the same person and nobody from Thuo Commercial Agencies has ever complained. He stated that nobody has complained of not receiving payment. It was DW6’s testimony that in respect of plot number is LR 4731/1 Nakuru Ksh 177,710 was paid for and the parcel was properly acquired. That at Page 24 of the report is LR NO.9362/3. Nakuru and the owner is Delamere Estates which had never complained.  DW6 testified that Thuo Commercial Agencies participated in the inquiry on 9th October, 1995 and Waka Ltd had sold the land to Thuo Commercial Agencies ltd. DW6 testified that the parcels were under the compulsory register and Thuo Commercial Agencies Ltd prosecuted their claim. He testified that the process was proper and compensation was done.

PLAINTIFF’S SUBMISSIONS
Counsel for the Plaintiff filed submissions dated 26th November, 2025 and identified the following issues for determination:
a.    Whether the Plaintiff is the lawful owner of proprietor of the suit property?
b.    Whether the Plaintiff validly, lawfully and procedurally completed a compulsory acquisition of the Suit property and if so, whether the Plaintiff compensated the affected parties as required by law?
c.    Whether any of the Defendants and/or third parties willfully, unlawfully and/or without basis encroached and/or trespassed on any portion (s) of the suit property?
d.    Whether any of the Defendants and/or third parties illegally sold or transferred any portion(s) of the Suit Property to other parties, and if so, what is the legality of such sales and/or transfers?
e.    Whether any of the Defendants and/or third parties unlawfully and/or fraudulently acquired title over any portion(s) of the Suit Property?
f.    What would be the legal effect of any title unlawfully and/or fraudulently acquired on any portion(s) of the Suit Property?
g.    Whether any of the Defendants and/or third parties is liable for wrongful, illegal or fraudulent registration of any portion(s) of the Suit Property, and if so, what remedial consequences shall flow to correct the unlawfulness, illegality or fraud?
h.    Whether the Plaintiff is entitled to recovery of any portion(s) of the Suit Property unlawfully, illegally or fraudulently acquired by any of the Defendants and/or third parties. 
i.    Whether any subdivisions of, and ensuing claims on, any portion(s) of the Suit Property unlawfully, illegally or fraudulently acquired by any of the Defendants and/or third parties have any legal effect. 
j.    Whether the Chief Land Registrar, the Lands Registrar in Nakuru or any other entity is liable for any unlawful or illegal or fraudulent registration of any portion(s) of the Suit Property, and if so, whether there are remedial measures to be taken, by whom and by when. 
k.    Whether the Plaintiff is entitled to the reliefs sought in the Plaint (as amended) in Nakuru ELC Suit No. 340 of 2015. 
l.    Who bears the costs of this suit?

On the first issue, counsel submitted that the Plaintiff is the legal owner of the Suit Property and that the statutory provisions laid down by the then law Land Acquisition Act, 1983 (repealed) were adhered to strictly. Counsel relied on the cases of Commissioner of Lands v Coastal Aquaculture Limited KLR (L&E) 264 and R & R Fazzolari Pty Ltd v Parramatta City Council (2009). On the second issue, counsel submitted that the Commissioner of Lands undertook adequate compensation to the registered owners of the Original Property absent any evidence to the contrary. 

On the third issue, counsel submitted that that the 2nd Defendant has encroached on the Plaintiffs’ Suit Property by purporting to own the property thus selling the property and that the 2nd Defendant is a trespasser and should not be protected by this Honourable Court.   Reliance was placed on the cases of Patrick Musimba vs The National Land Commission, Kenya Railways Corporation and others Petition 613 of 2014 and Cycad Properties Limited & Another v Attorney General & Others Nairobi Petition No. 69 & 70 of 2010( 2013) eKLR.

On the fourth issue, counsel submitted that any sale, transfer and activity purporting to be sale of the Suit Property is illegal, unlawful and should be rendered void by this Honourable Court.  Counsel relied on the case of Lawrence Mukiri v. Attorney General & 4 Others [2013] eKLR.

On the fifth issue, counsel submitted that Grant No. IR 75786 has never been revoked and is still in force to date, the Titles held by the Defendants and 3rd Parties are therefore a nullity. Counsel urged that the court to revoke the fraudulently acquired titles. On the sixth issue, counsel submitted that bad Titles were acquired by the 3rd party purchasers as they purchased properties fraudulently.  Reliance was placed on the cases of Dina Management Limited v. County Government of Mombasa & 5 Others, SC Petition No. 8 (E010) of 2021; [2023] KESC 30 (KLR) and Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR).

On the seventh issue, counsel submitted that Grant No. IR 75786 was not available for alienation once amalgamation was finalized and a new Title issued to the Plaintiff.  Counsel submitted that when a person’s ownership to property is called into question, it is trite that the said proprietor has to show the root of his ownership.  Counsel relied on the case of Hubert L. Martin & 2 Others Vs. Margaret J. Kamar & 5 Others [2016] eKLR.

On the eighth issue, counsel submitted that given the Plaintiff’s protection accorded to it in law, it is entitled to the recovery of any and all the portions of land that have been illegally acquired by Defendants and third parties in respect of the Suit Property.  Reliance was placed on the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] KECA 816 (KLR). On the ninth issue, counsel submitted that the Plaintiff as the registered proprietor, it has gone beyond the instrument and proved the legality of how it acquired the title and shown that the compulsory acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register in respect of any of the Defendants or other third parties.

On the tenth issue, counsel submitted that the Chief Land Registrar complied with all the legal requirements for a complete process of compulsory acquisition. However, the Court reserves unlimited powers to reevaluate the evidence to determine whether or not full compliance was undertaken.  Counsel submitted that the Land Acquisition Act, 1983 (repealed), restates in very mandatory terms the absolute nature of the effect of taking possession of the Suit Property by the government.

On the eleventh issue, counsel submitted that it is entitled to all the reliefs set out in the Amended Plaint dated 30th June 2020.  On the twelfth issue, counsel submitted that the Defendants should be condemned to pay the costs of this suit. Reliance was placed on Section 27 of the Civil Procedure Act and the following cases: Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) and Jasbir Singh Rai & 3 Others V. Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR.
1ST DEFENDANT’S SUBMISSIONS
Counsel for the 1st Defendant filed submissions dated 28th January, 2026. Counsel submitted that the Plaintiff’s case against the 1st Defendant ought to be dismissed with costs as the 1st Defendant was compensated by the 5th Defendant in Nakuru HCCC No 208 of 2004. Counsel relied on the following cases: John Cherunya Kiptalam vs National Land Commission & others and South Nyanza Sugar Scheme land (Town Council of Awendo) vs Onyango & others.

2ND DEFENDANT’S SUBMISSIONS
Counsel for the 2nd Defendant filed submissions dated 16th December, 2025 and identified the following issues for determination:
a.    Whether a Defendant can counter claim against a Co-Defendant?
b.    Whether the 8th Defendant is a Bonafide purchaser of L.R 4731/1 for value without notice?

On the first issue, counsel submitted that a counter-claim does not lie against a co-defendant. Counsel relied on the case of Florence Wanjiru Mugwe vs Kinoti Augustine Kiogora and Purity Karwitha M’mburugu which held that a Defendant cannot counterclaim against a Co-Defendant.
On the second issue, counsel submitted that the 8th Defendant is not deserving of the prayers sought in it’s counterclaim. Counsel submitted that it is not a bona-fide purchaser of L.R No 4731/1 for value without notice and the Counterclaim should be dismissed. Reliance was placed on the following cases: Torino Enterprises Limited vs Attorney General [2023] KESC 79 (KLR), Sehmi & Another vs Tarabana Company Ltd & 5 others [2025] KESC 21 (KLR) and Dina Management Ltd vs County Government of Mombasa & 5 others (2023) eKLR. Counsel prayed that the costs be awarded to the 2nd Defendant.

8TH DEFENDANT’S SUBMISSIONS
Counsel for the 8th Defendant filed submissions dated 18th December, 2025 and identified the following issues for determination:
a.    Was the process of compulsory acquisition adhered to as required by the law at the time?
b.    Did the owners of the compulsorily acquired land, if at all it was, have a pre-emptive right of re-acquisition?
c.    Was the sale of Parcel No. 4731/1 to the 8th Defendant by the 2nd Defendant proper?

On the first issue, counsel relied on Section 6 (2) of the Land Acquisition Act, Cap 295 Laws of Kenya and submitted that even though there is evidence of publication of the notice in the Gazette, there is no evidence of service of the notice to the persons interested in the land. Counsel relied on the case of James Nyaga & Another v Attorney General [2013] eKLR. Counsel submitted that it was compulsory for the Commissioner, after marking and measuring the land to be acquired, to cause a deed plan to be prepared before an award of compensation was issued under Section 8 of the Land Acquisition Act, Cap 295 Laws of Kenya and an inquiry was held under Section 9 of the Land Acquisition Act, Cap 295 Laws of Kenya. It is in evidence that the plan was only prepared in 1997 as evidenced at page 43 in the documents produced by Mr. Partoba, the Deputy Director of Land Administration.  Counsel relied on the case of Coastland Properties Ltd v Commissioner of Lands [2000] eKLR.

Counsel went on to submit that Section 9 required the Commissioner to call for an inquiry through a notice in the Gazette. This was done. The inquiry was postponed to a later date vide a letter dated 16th February 1983 and later conducted on 18th March 1983. However, as per the report of Mr. Partroba, page 3 of 6, the witness testified that on 18th June 1984, the Government informed the land owners that it was no longer interested in the properties. The owner of 4731/1, that is Waka Ltd, sold its parcel to the 2nd Defendant. Only later, on 9th October 1985, 30 months later since when the inquiry was supposed to have happened, did the Government revive the acquisition without publishing a notice nor inviting the new owner, Thuo Commercial Agencies, to an inquiry. Counsel submitted that Section 9(4) envisaged that there would be postponement; however, the law mandatorily capped the postponement to 24 months. The abandonment of the process for over 30 months offended the statute. Counsel submitted that there is no evidence of a signed statement acknowledging that Thuo Commercial Agencies ever received the purported award dated 9th January 1986.  Counsel submitted that if a final survey was conducted as required by law, the result would have been a deed plan indicating the compulsorily acquired land rather than a new grant. Counsel submitted there was no strict adherence to the provisions of the law and as such the court ought to invalidate the process.

On the second issue, counsel submitted that if the court is of the opinion that the land was compulsorily acquired for an airport, counsel asked the court to hold that the 8th Defendant holds a pre-emptive right to re-acquire the parcel. Reliance was placed on the case of Town Council of Awendo v Onyango & 13 Others; Mohamed & 178 Others (Interested Parties) [2019] eKLR.

On the third issue, counsel submitted that the sale of the parcel was proper, there being no evidence to the contrary. Reliance was placed on the case of Kinyanjui Kamau v George Kamau [2015] eKLR.

Counsel submitted that they have shown that the process of compulsory acquisition was flawed as: there was no copy of the Gazette Notice that was served on the 2nd Defendant as a property owner as required by Section 6(2) of the Land Acquisition Act, the Commissioner did not cause a deed plan to be prepared, and the same was only prepared in 1997, over a decade later, the process was revoked and a letter sent to the owners of the land dated 18th June 1984. This revocation called for the process to start afresh, the inquiry and process stalled for close to 3 years, a period not envisaged by the law and to date, a final survey as required by Section 19 of the Act has never been done, if at all there was an acquisition. Counsel asked the court to grant prayer number 2 in the counterclaim.

ANALYSIS AND DETERMINATION
The issues for determination are as follows:
a.    Whether the Plaintiff validly, lawfully and procedurally completed a compulsory acquisition of the Suit property and if so, whether the Plaintiff compensated the affected parties as required by law?
b.    Whether the sale of Parcel No. 4731/1 to the 8th Defendant by the 2nd Defendant lawful?
c.    Whether any of the Defendants and/or third parties unlawfully and/or fraudulently acquired title over any portion(s) of the Suit Property?
d.    What happens to the parcel of land that is not used for the compulsory purpose that it was acquired for?
e.    Who is entitled to costs?

It is the Plaintiff’s case that it is the registered owner of all the parcel of land known as Land Reference Number L.R No 23166 (I.R No 75786) situated South East of Nakuru Municipality measuring 208.5 Hectares (suit property). It is the Plaintiff’s case that it acquired the suit property in 1997 after fulfilling all the requirements for a process of compulsory acquisition. The Plaintiff averred that the suit property resulted from compulsory acquisition and consequent amalgamation of Land Reference Numbers 9363/3, 4731/2, 6282/1, 4731/1, 6282/2 and 11373.

The Plaintiff averred it acquired the suit property by virtue of compulsory acquisition under Section 13 (2) of the Kenya Airports Authority Act (Cap 395) and that it gave notices of intention to acquire the original property for the establishment of a civilian airstrip. It is the Plaintiff’s case that prior to the acquisition, a notice of intention and notice of inquiry was issued vide a Gazette Notice No 353 and 354 dated 20th January, 1983 over the original property. 

The Plaintiff averred that subsequent to the process of compulsory acquisition, prompt and full compensation was made to the then registered owners of all the original properties by 8th July, 1986.  It is the Plaintiff’s case that as a result the original property and the resultant subdivisions being Land Reference Numbers 4731/1, 6282/22, 11373, 4731/38, 4731/39, 4731/22, 4731/19/4731/15, 4731/12, 4731/11, 4731/6 and 4731/5 as captured by F/R 279/35 in the survey records, the process of amalgamation was effected subsequent to which a Certificate of Title was issued in respect of the property on 1st November, 1997.

The Plaintiff averred that it has been in possession of the land for over eighteen years. It is the Plaintiff’s case that in July, 2015 the 1st and 2nd Defendants illegally trespassed and laid claim to part of the suit property. It is the Plaintiff’s case that upon undertaking official searches on the property, the Plaintiff noted that Land Reference No 4731/2 and Land Reference No. 6282/2 were illegally registered in favour of the 1st Defendant while Land Reference No 4731/1 and Land Reference No 6282/1 were registered in favour of the 2nd Defendant.

The Plaintiff avers that there are constructions that are being carried out on the property and the same will be risky to the planes and to any inhabitants of such properties. The Plaintiff goes on to list the particulars of illegality.

The 1st Defendant contends that it bought LR No 4731/2 and LR No 6282/2 from the 5th Defendant sometime on 30th October, 1989. The 1st Defendant averred that it discovered that part of LR 4731/2 specifically 5.2 hectares (approximately 12.85 acres) and LR 6282/2 measuring 1.62 hectares (approximately 4 acres) was also part of the airstrip. The 1st Defendant averred that upon discovering that part of the land it bought from the 5th Defendant had been compulsorily acquired by the government for the civilian airstrip, the 1st Defendant filed a civil suit (Nakuru High Court Case No 208 of 2004) for the recovery of the sum paid for the land. The 1st Defendant contended that it is not a party to the disputed parcels of land.

It is the 2nd Defendant’s case that it is the duly registered owner of all that parcel of land known as L.R No 4731 measuring approximately 82.7 Ha and L.R No 6282/1 measuring approximately 100 acres both located at the East of Nakuru Municipality. It is the 2nd Defendant’s case that no compensation to date has been paid to it either in whole or in part for L.R No 4371/1 and L.R No 6282/1 or at all and that therefore no land in whole or in part of the suit land parcels was acquired compulsorily by the Plaintiff.  The 2nd Defendant goes on to list the particulars of fraud, misrepresentation, falsification and illegalities committed by the Plaintiff. The 2nd Defendant also lists the particulars of loss, injury and damages.

It is the 8th Defendant’s case that at all material times, it is the duly registered proprietor of all subdivision titles on the property known as LR No 4731/1 measuring approximately 82.70 Ha. The 8th Defendant averred that it purchased the aforementioned property from the 2nd Defendant vide a sale agreement dated 5th January 2017. It is the 8th Defendant’s case that the 2nd Defendant later executed a transfer in favour of the 8th Defendant and the same was registered on 22nd June, 2018 to that effect.

The 8th Defendant averred that it has been in possession of the aforementioned property and being a Land buying and selling company, it proceeded to subdivide the property into twelve portions and procured titles to run from LR No. 4731/40, 4731/41, 4731/42, 4731/43, 4731/44, 4731/45, 4731/46, 4731,47, 4731, 48, 4731/49, 4731/50 and 4731/51. It is the 8th Defendant’s case that at no time was it made aware by the Plaintiff of the 2nd Defendant that they had any adverse claim or suit touching on the property. The 8th Defendant went on to list the particulars of misrepresentation and falsification by the 2nd Defendant. The 8th Defendant also listed the particulars of loss, injury and damages. 

The Supreme Court of Kenya in the case of Attorney General v Zinj Limited [2021] KESC 23 (KLR) pronounced as follows at paragraphs 27 and 28:
27. The main controversy, revolves around the legality or otherwise, of the manner in which the Government, went about acquiring portions of the suit property, and conferring title over the same, in favour of third parties. The only way the Government could lawfully deprive the respondent of part or all of its property, was through a compulsory acquisition, in conformity with the provisions of article 40(3) of the Constitution, and the procedure stipulated in the Land Acquisition Act (now repealed) which was the applicable law at the time. Towards this end, can it be said that the Government acquired the portion of the suit property compulsorily? The facts on record do not that way point. Being the custodian of the Land Register, and the guarantor of titles emanating there-from, the Government was acutely aware that the suit property was privately owned by the respondent.

28. It follows that any compulsory acquisition process, ought to have commenced with a requisite Notice to the respondent, and any other persons claiming an interest in the land. The public purpose for which the land was to be acquired, ought to have been clearly stated. Most critically, the resultant acquisition ought to have been attended with prompt payment in full, of a just compensation to the respondent……[Emphasis mine]


2.    Article 40(3) of the Constitution provides that-

“The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-

a.    results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
b.    is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that-
I.    requires prompt payment in full, of just compensation to the person; and
II.    allows any person who has an interest in, or right over, that property a right of access to a court of law.


PW1 produced a copy of gazette notices No 353 of 20th January 1983  and 354 of 20th January 1983. The court notes that the two gazette notices are under the Land Acquisition Act (Cap 295). The notices are in respect of Notice of Intention to Acquire Land and Notice of Inquiry. The notices gave a list of attached proprietors which were:
a.    -LR No 9363/3 Ha (part) the interested person being Delamere Estates Ltd with land to be acquired being 21.3 Ha.
b.    LR No 4731/2 the interested person being Waka Ltd with land to be acquired being 5.2 Ha.
c.     LR No 6282/1 (part) the interested person being Waka Ltd with land to be acquired being 14.9 Ha.
d.     LR No 4731/1 (part) the interested person being Waka Ltd with land to be acquired being 81.77 Ha.
e.    LR No 6282/2 (part) the interested person being Waka Ltd with land to be acquired being 1.62 Ha.
f.    LR No 11373 (part) the interested person being Ndiuni Farmers Ltd with land to be acquired being 81.6 Ha.

The court notes that based on the testimony of DW5 upon cross-examination, he stated that the parcels acquired were for Delamare Estates and Waka Ltd. He stated that Thuo Commercial Agencies (the 2nd Defendant) was not a party. DW5 stated that Waka Ltd owned the property in 1972 and they sold to Thuo Commercial Agencies. This court has looked at PExhb No 10 and notes that the Commissioner of lands effected the following payments:

a.    Delamere Estate Ltd for LR No 9362/3- Ksh 448, 310.25/=
b.    Kianjoya Ent Ltd for LR Nos 4731/2 & 6282/2- Ksh 167, 348/=
c.    Thuo Commercials for LR No 6281/1 –Ksh 2, 292, 870/=
d.    Ndiuni Farmers for LR No 11373 for Ksh 2,088,040/=.


In the case of Horn-v- Sunderland Corporation [1941] 2 KB 26,40: Scott L.J, in relation to compulsory acquisition, it was held as follows:
“The word “compensation” almost of itself carries the corollary that the loss to the seller must be completely made up to him, on the ground that unless he receives a price that fully equaled his pecuniary detriment, the compensation would not be equivalent to the compulsory sacrifice”.


In considering the above judicial decision, a five-judge bench of the High Court in Patrick Musimba v National Land Commission & 4 others [2016] eKLR expressed itself as follows:
119. Effectively Lord Scott’s statement gave rise to the unabated proposition that the compensation of compulsorily acquired property be quantified in accordance with the principle of equivalence. A person is entitled to compensation for losses fairly attributed to the taking of his land but not to any greater amount as “fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority”…

120.We see no reason why the same approach should not be adopted locally. The Constitution decrees “just compensation” which must be paid promptly and in full. The Constitution dictates that the compensation be equitable and lawful when the word “just” is applied as according to Black’s Law Dictionary 9th Ed page 881 the word “just” means “legally right; lawful; equitable”. In our view, the only equitable compensation for compulsory acquisition of land should be one which equates restitution. Once the property is acquired and there is direct loss by reason of the acquisition the owner is entitled to be paid the equivalent. One must receive a price equal to his pecuniary detriment; he is not to receive less or more.”

This court finds that the suit parcels were compulsorily acquired. The 2nd Defendant has not proved its case. The 2nd Defendant averred that the process of compulsory acquisition was not followed. However, based on the evidence adduced by the Plaintiff, Waka Ltd which sold it’s share to the 2nd Defendant was compensated. There are two notices involve Waka Ltd and thus the 2nd Defendant cannot fault the compulsory acquisition process.
The 8th Defendant on the other hand averred that it purchased the aforementioned property from the 2nd Defendant vide a sale agreement dated 5th January 2017. The 8th Defendant in it’s amended Statement of Defence contended that the Certificate of Title for L.R No 4731/1 was legally maintained and the same was transferred to the 8th Defendant lawfully.

Section 24 (a) of the Land Registration Act, 2012 provides:
24. Subject to this Act:
(a)  the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
Section 25 (1) provides:
(1)  The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
(a) _________________

(b)_________________
Section 26 (1) provides:
(1)   The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a)  on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b)  where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.


In the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another [2013] eKLR the court held as follows: -
        "…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions."

On the issue of what happens to the parcel of land that is not used for the compulsory purpose that it was acquired for; this court relies on the case of Niaz Mohamed Jan Mohamed Vs Commissioner for Lands & 4 Others HCCC No. 423 of 1996, where it was held that land acquired in public interest cannot be alienated and allocated to private individuals, even a portion thereof unless certain conditions such as de-gazettement, are met.
Section 80 of the Land Registration Act gives courts powers to rectify a title in case of a mistake.  The said section provides:
“(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
(2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default”.

In respect of challenging the compulsory acquisition process; the Court of Appeal in the case of Kenya National Highway Authority v Shalien Masood Mughal & 5 others [2017] KECA 465 (KLR) reasoned as follows:

34. It was contended in that case, as it is in this one, that there was no record of the alleged acquisition either in the Lands Office or in the Survey Office; that the process of acquiring the 80 meter road reserve was never started or completed and that there was no evidence of payment of prompt compensation under section 13 of the Land Acquisition Act. As in this case, professional surveyors were involved in verifying the position on the ground and they found an 80 meter road reserve. In answering the crucial issue as to whether the petitioners can challenge the compulsory acquisition of land for the Northern bypass that took place in 1970, which was a major plank of the petitioners' claims, the trial court (Mumbi Ngugi, J.) held:

    "It is not the duty of the court to inquire into whether or not the acquisition process undertaken in the 1970s was done in accordance with the law. The validity or otherwise of that process could only have been questioned and determined within the time frame specified in the Land Acquisition Act, and by the parties from whom the land was being acquired. In this regard, I agree with the respondents that the petitioners cannot at this stage question the process of acquisition undertaken more than three decades before they acquired their interests in the subject properties."


This court finds that the Plaintiff has proved it’s case. The subject parcels have not been de-gazetted for them to be acquired by third parties. I therefore issue the following orders:
a.    A declaration is hereby made that the Plaintiff is the rightful owner of the suit property known as Land Reference No. 23166 consolidated and amalgamated from the original property Land Reference No.s 9362/3, 4731/1, 4731/2, 6282/1, 6282/2 and 11373.
b.    A permanent injunction is hereby issued preventing the Defendants by themselves or through entities formed or incorporated by them or by their agents, nominees or persons claiming any right of interest under or through them from trespassing, alienating, subdividing, selling, disposing off, constructing and/or in any way interfering with the Plaintiff’s peaceful possession of the suit property.
c.    An order is hereby made cancelling all subdivisions transactions touching on the original and suit property subsequent and after the 1st day of November, 1997.
d.    The titles issued by the 3rd Defendants to the 1st and 2nd Defendants and their agents or assigns are hereby revoked and gazettment of the cancellation by the 3rd Defendant.
e.    An order of eviction is hereby issued against the Third Party encroachers and/or their agents, servants or others claiming through them as may be trespassing on the Plaintiff’s suit property.
f.    A declaration is hereby made that the Respondent’s actions constitute trespass.
g.    Costs of this suit are awarded to the Plaintiff.
h.    The 2nd Defendant’s Counter claim dated 2nd October, 2022 is hereby dismissed with costs.
i.    The 8th Defendant  succeeds in the alternative prayer and shall be compensated and/or refunded by the 2nd Defendant at market value of the property ( L.R No 4731/1 (IR.38516) which is the subject of the sale agreement dated 5th January, 2017with interest at court rates from the date of payment of the purchase price
j.    The 8th defendant to be refunded survey costs of Ksh 27, 000, 000 with interest at court rates
k.    The 2nd defendant to pay the 8th defendant costs of the counter claim
It is so ordered.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THE 16th DAY OF FEBRUARY, 2026.
A.O. OMBWAYO
JUDGE