1. This suit was filed by way of the Amended Plaint dated 1st November 2021 and amended on 18th of April 2023 filed by the Plaintiff as the administrator of the estate of his father Ndonyi Mbuvi, having obtained grant of letters of administration. The Plaintiff claims that his father was the registered owner of Land Parcel Kituvwi Adjudication Section P./NO.929 which measures 1560 acres situated at Kituvwi sub-location, Kanziko Location within Ikutha sub-County, Kitui County.
2. The Plaintiff avers that sometimes in June 2019, the 1st and 2nd Defendants during the adjudication and survey process, erroneously allocated to the 4th -8th defendants allotment numbers 594,595,596,597 and 928 respectively, all excised from the Plaintiff’s plot No.929, thus reducing the Plaintiff’s acreage from 1560acres to 24 acres despite there being a court decree dismissing the 8th defendant’s case.
3. The Plaintiff further avers that the 4th -8th defendants trespassed and apportioned a piece of land hived from the parcel of land known as Kituvwi Adjudication Section P/No.929 without the plaintiff’s consent.
4. Thus, the Plaintiff claims that the 1st, 2nd and 9th defendants’ actions have arbitrarily reduced his land, denying him his right to quiet possession of land.
5. The Plaintiff claims against the defendants jointly and severally for: -
a) An order of permanent injunction restraining the defendants either by themselves, their servants, agents, workers or any other person claiming under him from entering, trespassing, moving into, seeking to occupy, alienating and/or in any other manner whatsoever from interfering with the plaintiff’s right.
b) A declaration that the plaintiff herein is the rightful and legal owner of all that parcel of land known as Kituvwi Adjudication Section P./No.929 which measures 1560 acres and he is thereto the absolute and indefeasible owner thereof and is further entitled to all rights and privileges belonging or appurtenant thereto.
c) An order of this Honourable Court do issue directing the 1st and 2nd defendants to rectify the anomaly in the survey map for the suit property to measure 1560 acres before the title deed is processed.
d) An order of this Honourable Court do issue directing the 9th Respondent herein directing him to issue a title deed in the name of the Applicant’s father for the suit property measuring 1560 acres and cancelling the titles in the names of the 4th -8th Defendants.
e) An order for immediate eviction be issued against the defendants from all that Parcel of land known as Kituvwi Adjudication Section P/No.929 which measures 1560 acres and the defendants do give vacant possession of the suit property to the Plaintiff, in default, the defendants be forcibly evicted from the suit property.
f) Costs of this suit.
g) Interest on e above.
h) Any other prayer that this Honourable Court may deem fit to grant in the circumstances.
The 1st, 2nd, 3rd, and 9th Defendants’ Statement of Defence
6. The 1st, 2nd, 3rd, and 9th Defendants’ filed a Statement of Defence and denied the allegations made against them in the Plaint. They stated that adjudication is a process of ascertainment of existing rights at the time of adjudication and it involves among other things inspection of the register and filing of objection if an interest is not captured. The Defendants averred that the Plaintiff has not demonstrated that he indeed inspected the register and followed the mandatory statutory procedure set out in the Land Adjudication Act Cap 284 laws of Kenya.
7. They state that the adjudication process was carried out in accordance with the law and put the plaintiff to strict proof to the contrary.
The 4th to 8th Defendants.
8. The 4th to 8th Defendants did not enter appearance or file a defence to the claim. The affidavit of service by Benedict Muthama Mutua sworn on 6th March 2023 confirms that the 4th to 8th Defendants were served with summons to enter appearance and they failed and/or refused to defend the suit.
Evidence at the Trial Court
9. During the hearing, the Plaintiff who was PW 1, Muthiani Ndonyi, adopted his witness statement filed on 1st November 2021 and his bundle of documents dated 1st November 2021 as well as his supplementary bundle of documents dated 23rd October 2023 as his evidence in chief. He reiterated his averment in the Plaint that at all times material to this suit, his father was the registered owner of Land Parcel Kituvwi Adjudication Section P./NO.929 measuring 1560 acres situated at Kituvwi sub-location, Kanziko Location within Ikutha sub-County, Kitui County.
10. That his father occupied this land long before the adjudication process and even acquired it through a Court decree issued on 5th October 2010 in the Resident Magistrate’s Court at Mutomo, which originated from the Lands Dispute Tribunal Act No.18 of 1990.
11. He stated that there had been no dispute over the land until sometime in June 2019 when during the land adjudication and survey process, the 1st and 2nd Defendants erroneously indicated the acreage of the land as per the survey map to measure 24 acres when the actual acreage on the ground is 1560 acres.
12. Due to the aforesaid errors, the 1st and 2nd defendants as well as the 4th -8th Defendants herein through themselves and their servants and/or agents started trespassing on the suit parcel of land. They did this by threatening the Plaintiff’s father, demolishing the structures thereon, pulling down the live fence, cutting down trees while burning charcoal, farming and grazing cattle therefore causing damage on the suit property.
13. On September 2019, the Plaintiff’s father visited the 1st defendant’s office for purposes of confirming the registration of the suit property and the same was confirmed vide letter dated 17th September 2019. However, in June 2020, the 4th -8th Defendants confronted him claiming ownership of the land and the Plaintiff’s father reported the matter to the chief’s office who summoned him vide letter dated 19th June 2020.
14. On various dates his father wrote letters to various Government offices requesting assessment of damage caused by the 4th -8th respondents herein, requesting for the survey map for the suit land and further requesting for rectification of the anomaly in acreage but the said letters and requests have never been responded to.
15. The Plaintiff then applied for grant of letters of administration to the estate of Ndonyi Mbuvi his father to enable him file this claim.
16. On cross-examination, the Plaintiff stated that his father was alive during adjudication but he lived on another parcel of land away from the suit land. He however did not know if his father objected during the adjudication process.
17. He stated that he paid a surveyor who showed that the suit land was originally 1560 acres and was reduced to 24 acres.
18. He also stated that after adjudication, Land Parcel 929 was given to his father but by the time titles were issued, his father was deceased. When he went to pick the title, he realized that it was issued jointly in his father’s name together with the person he had a case with.
19. The Surveyor the Plaintiff had proposed to call and produce the surveyor’s report and testify on the same did not attend court and the Plaintiff’s counsel withdrew the surveyor’s report marked for identification number 13 and the Plaintiff’s case was closed.
20. The case for the 1st -3rd and 9th Defendants commenced when DW 1 Ali Hussein Chemasuet testified. He stated that he works as the Land Adjudication and Settlement Officer in Mutomo, Ikutha Sub-County of Kitui County, where he has been working for the past three years. He adopted his witness statement dated 24th November 2023 as his evidence in chief.
21. He testified that Kituvwi Adjudication Section is now a registered section and title deeds have been issued. Upon declaration of the adjudication section a land adjudication committee was elected by land owners. The land owners were notified to clear the boundaries and their parcel of lands and they did.
22. Upon commencement of demarcation and survey work, the demarcation officer/surveyor and the local land adjudication committee issued parcel numbers and plotted parcel of land following the boundaries as cleared and shown on the ground.
23. Upon completion of demarcation and survey, land owners who were not contented with the work or had queries were given 14 days to file his committee case. The Plaintiff did not do so. Further, that when the adjudication register was published, land owners were given 60 days to inspect the register and those who had queries were to file an objection, which the plaintiff did not do.
24. It was stated that the Plaintiff visited their offices long after publication of the section with a map he claimed to have been from the district land tribunal. That the Plaintiff should have produced this map during demarcation.
25. Further, it was stated that the total acreage of the parcels claimed by the Plaintiff including his own is 160.40 acres, which is below the 1560 acres that the Plaintiff is claiming. He also produced their documents as exhibits.
26. On cross-examination, DW 1 acknowledged that he was not stationed at Mutomo at the time of demarcation relevant to this suit. He also acknowledged that he did not produce the minutes of the meeting where the adjudication committee sat with respect to the suit land.
27. Regarding the Notice that DW 1 produced addressed to members of the public as exhibit 1, he stated that it is issued to the public after a Baraza and the process was explained. He acknowledged that the Plaintiff did not sign to acknowledge receipt.
28. On re-examination, he stated that even though he was not in Mutomo at the time of demarcation, there are records that he could refer to. He also said that the notices are not issued individually but are read out to the public in barazas. The notices are then pinned in Chief’s and government offices. He also stated that since he is not the complainant in this matter, he is not obliged to produce the said documents.
29. PW 2 Joseph Njagi, Land Registrar Kitui(9th defendant) produced the certified copies of green cards for parcel numbers Mutomo/Kituvwi/596, 594, 597, 928 and 929 as defence exhibits 2,3 and 4 respectively.
30. On cross-examination, DW 2 stated that the Green cards produced are the first registration immediately after adjudication. He acknowledged that it is possible for errors to occur, but they are usually given time to be corrected. He added that these errors are eradicated when land owners are fully engaged in the adjudication process.
31. The 4th-8th Defendants failed to enter appearance or file a defence.
Plaintiff’s Written Submissions.
32. Counsel for the Plaintiff submitted that the plaintiff herein primarily seeks an order for permanent injunction which was defined in the case of Kenya Power & Lighting Co. Ltd -vs- Sheriff Molana Habib (2018) eKLR.
33. They also urged this Court to be guided by the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 others, CA No. 77 of 2012; [2014] eKLR, whereby the Court of Appeal reiterated the conditions to be met by a litigant who seeks injunctive relief.
34. Counsel submits that the plaintiff herein has produced enough evidence to prove that indeed the suit land belonged to his deceased father and that the 4th -8th defendants herein without any colour of right have trespassed and apportioned a piece of land hived from the parcel of land known as KITUVWI Adjudication Section P/N0.929 which measures 1560 acres without his consent and have started.
35. It is submitted that the circumstances under which the title deeds of the 4th Defendants were obtained are illegal and must be deemed to through fraudulent means. They relied on the case of Sai_Office_Supplies Limited —vs+ Rosemary Alivista Luseno & Another [2014] eKLR,
36. Counsel’s submission is that the titles of the 4th -8th defendants are impeachable in the circumstances and the real title holder is protected under Section 26(1)(b) of the Land Registration Act 2012. He also submits that rectification of the register is possible under Section 80 of the same Act.
The 1st , 2nd 3rd and 9th Defendants’ Submissions.
37. State Counsel for the 1st, 2nd 3rd and 9th Defendants’ began their submissions by quoting from the authority of National Assembly -Versus- Karume (1992)KLR 21, where the Court of Appeal held that: “where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
38. It is their submission that the Plaintiff has not proven their case to the required standard on a balance of probabilities as per Sections 107, 108 and 109 of the Evidence Act due to the fact that the Plaintiff confirmed that he had not adduced evidence that indeed his father occupied the whole 1560 acres of the suit land. That he also has not produced before this Honourable Court, any survey document determining the acreage of the land, neither did he have proceedings of the land tribunal that indicate Parcel number 929 measured 1560 acres. That there is no indication that the Plaintiff submitted to the jurisdiction of the Land Surveyor for investigations to ascertain his correct acreage and for the need to harmonize the same as per his claims.
39. Their submission is that it is trite law that illegality, fraud and impropriety must be pleaded and proved to the required standards as they relied on the holding in the cases of Arithi Highway Developers Limited vs West End Butchery Limited & 6 others (2015) eKLR and Vijay Mojaria_vs Nasingh Madhusingh Darbar (2000) eKLR.
40. State Counsel elaborated the process of adjudication as per the Land Adjudication Act CAP 284, highlighting that if one is dissatisfied or there are more than one or two claims to a property, one can object to the Land Adjudication Committee, Arbitration Board, the Objection Board and to the appeal to the Minister. It was highlighted that when the adjudication process began in Kituvwi Adjudication Section, the Plaintiff’s deceased father had the chance to dispute the recordings after 14 days to the Committee, but he failed to do so, failing to exhaust available remedies. On this point, they relied on the following cases:Mohamed Ahamed Khalid (Chairman) and 10 others - v- Director of Land Adjudication & 2 others (2013) eKLR
William Mutuura Kairiba v Samuel Nkari & 2 others [2018] eKLR
John Kariri Mucheke vs. Mitabari M’arunga [2008] eKLR
Analysis and Determination
41. Having considered the pleadings, the evidence adduced at trial and rival submissions filed by counsels for the parties, the Court is of the view that the issues for determination arise as hereunder:
A. Whether the acreage of the suit property was reduced from 1560 to 24 acres unprocedurally.
B. Whether the 4th -8th defendants’ trespassed onto the suit property.
C. What orders should the Court give?
A. Whether the acreage of the suit property was reduced from 1560 to 24 acres unprocedurally.
42. The Plaintiff’s claim is that Land Parcels 594,595,596,597 and 928 Mutomo/Kituvwi respectively (formerly Kituvwi Adjudication Section) were excised from the Plaintiff’s father’s plot No.929 reducing the acreage from 1560 acres to 24 acres despite there being a court decree dismissing the 8th defendant’s case.
43. The Plaintiff filed this suit as the personal representative of the estate of his father Ndonyi Mbuvi (Deceased), as evidenced by letters of administration ad litem issued in Mutomo Succession Cause E004 of 2021 on 27th October 2021.
44. Consent was duly issued by the Land Adjudication Officer to file this case as per Section 30 of the Land Adjudication Act CAP 284 through the letter dated 21st October 2021
45. The Plaintiff claims that his father was the registered owner of Land Parcel Kituvwi Adjudication Section P./NO.929 measuring 1560 acres situated at Kituvwi sub-location, Kanziko Location within Ikutha sub-County Kitui County. This was evidenced by a letter dated 17th September 2019 from the Adjudication and Settlement Department, Mutomo Sub-County.
46. In support of his claim the Plaintiff stated that his father occupied this land long before the adjudication process and even acquired it through a Court decree issued on 5th October 2010 in the Resident Magistrate’s Court at Mutomo. Land Case No. 13 of 2009 which decree was issued awarding his father Ndonyi Mbuvi the suit land.
47. The Plaintiff further produced in evidence a document showing that the land owner for land parcel 929 was Ndonyi Mbuvi and a letter dated 17th September 2019 from the Sub-County Land Adjudication and Settlement Officer Mutomo/Ikutha Sub-counties confirm Kituvwi Adjudication Section stating that land parcels 590 and 929 belonged to his father.
48. The defendants denied the Plaintiff’s claim and adduced evidence. The documents filed by the 9th Defendant, the Kitui Land Registrar, and in particular copies of the Adjudication Record (RO) and the Green Card of the suit parcel of land Mutomwo/Kituvyi/969 show that the approximate area of the land in Hectares is 11.416. The said records also show that the land is registered in the names of Ndonyi Mbuvi (Plaintiff’s father) and Ndonyi Kavinga. The land is held in common each having ½ undivided share. This contradicts the Plaintiff’s assertion that his father was the sole owner of the suit land and that the size of the land was 1560 acres.
49. The decree from Mutomo Land Case 13 of 2009 dated 5th of October 2010 relied upon by the Plaintiff, shows that the case came up for reading and adoption of the award of 30/10/2006 from the Kitui District Land Dispute Tribunal. The said award was read in the presence of the Defendant Ndonyi Mbuvi and in the absence of the Plaintiff Kavinga Ikuthu. The court made the orders that the disputed land was awarded to the defendant Ndonyi Mbuvi (the deceased). The Plaintiff in that suit, his children, relatives, servants and/or agents were restrained from interfering with the disputed parcel of land. It is noted that nowhere in the decree are the particulars of the land in dispute stated. In particular the decree does not mention that the suit parcel of land number Kituvwi Adjudication Section P./NO.929 situated at Kituvwi sub-location, Kanziko Location within Ikutha sub-County Kitui County was the subject of the dispute.
50. Further, the decree does not state the acreage of the land in dispute and in particular it does not state that it measured 1560 acres. It is also noted that the Plaintiff did not attach the full proceedings of the suit before the Resident Magistrates Court and before the Land Disputes Tribunal.
51. It is noted that none of the parties to this suit have disputed the fact that the deceased Ndonyi Mbuvi has an interest in the land in dispute. The records show that the land is registered in the deceased’ name and that of Ndonyi Kavinga. In the Court’s view if the Plaintiff wished to show that the land was solely owned by his father he would have called the Sub-County Land Adjudication and Settlement Officer Mutomo/Ikutha Sub-counties who wrote the letter dated 17th September 2019 to give evidence on the ownership and acreage of the land and to confirm the information given in the said letter..
52. As it is the Land Adjudication Officer of Mutomo/Ikutha Sub-Counties Mr. Ali Hussein Chemasuet testified that according to their records land parcel number 929 measures 11.46 Hectares.
53. It has been confirmed by the parties that the suit parcel of land are products of Land Adjudication. The preamble to the Land Adjudication Act states that it is an "An Act of Parliament to provide for the ascertainment and recording of rights and interests in community land and for purposes connected therewith and purposes incidental thereto”
54. Section 15 of the Land Adjudication Act provides that:
“Not less than seven clear days before the demarcation of an adjudication section is begun, the demarcation officer shall give warning of the intended demarcation and recording of claims, and of the time and place at which it will begin, in such manner as the adjudication officer considers most likely to bring the matter to the knowledge of the persons who will be affected by the demarcation and recording.”
55. In the Court’s view, the fact that the deceased Ndonyi Mbuvi was registered under land parcel 929 shows that he was aware of the ongoing land adjudication process in the Kituvwi Adjudication Section. Under Section 5 (d) of the Land Adjudication Act, a person claiming to be entitled to land in an adjudication section is required to point out to the demarcation Officer the boundaries of the land he claims to have an interest in and to clear such boundaries. In the court’s view the evidence adduced by the Plaintiff does not show that his deceased father did not participate in the exercise provided in law in showing the boundaries of his land before he was recorded as part owner of the suit land.
56. Indeed if the deceased had been dissatisfied by any acts done by the demarcation officers, survey officers and recording officers, he would have been able to challenge such acts before the Land Adjudication and Settlement Officer as per Section 9 (2) of the Land Adjudication Act.
57. Once the process of adjudication begins, Section 19 of the Act provides for conflict resolution as follows:
(1) Subject to subsection (2) of this section, the recording officer shall consider all the claims made in pursuance of the notice published under section 5 of this Act, and, after such investigation as he considers proper, shall prepare in duplicate, in accordance with section 23 of this Act, a form in respect of every parcel shown on the demarcation map.
(2) If there are two or more conflicting claims to an interest in land and the recording officer is unable to resolve the conflict, he shall submit the dispute to the committee to decide.
(3) The recording officer shall rectify the forms in accordance with any decision which the adjudication officer, the committee or the board may make in accordance with this Act.
(4) The recording officer shall perform and exercise his duties under this section in accordance with the general or particular directions of the adjudication officer.
58. As shown under Section 19 (2) above, any two or more conflicting claims to an interest in land where the recording officer is unable to resolve the conflict, he is obligated to submit the dispute to the land adjudication committee to decide. It appears from the evidence adduced that the Plaintiff’s father did not object to his land as demarcated to the Land Adjudication Committee. He was thus duly registered as part owner of the suit parcel 929 Kituvwi Adjudication Section.
59. Section 25 & 26 of the Land Adjudication Act provides another level at which a person dissatisfied with the outcome of the adjudication process is to lodge an objection it stipulates that:
“When the adjudication register has been completed, the adjudication officer shall so certify on the adjudication record and demarcation map, and shall then—
(a) deliver the duplicate adjudication record (bearing a copy of the certificate) to the Director of Land Adjudication;
(b) display the original adjudication register for inspection at a convenient place within the adjudication section; and
(c) give notice that the adjudication register has been completed and may be inspected at that place during a period of sixty days from the date of the notice.”
60. After inspection of the register Section 26(1) thereof provides a person dissatisfied can lodge an objection:
“(1) Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.”
61. There is no evidence that there was any objection by the Plaintiff’s father disputing the final adjudication register as pertains to his land. The Adjudication Register and the green card to the suit parcel 929 Mutomo/Kituvwi indicate that the same measures approximately 11.46 Ha.
62. The Plaintiff’s claim is that the 4th -8th Defendants’ titles are impeachable under Section 26 Land Registration Act No.3 of 2012 under Section 26(1) which provides that:
“(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”
63. In the court’s opinion, the Plaintiff has done nothing to prove that the 4th-8th Defendants acquired their titles fraudulently, through misrepresentation, illegally, unprocedurally or through a corrupt scheme.
64. Section 107 (1) of the Evidence Act and in my view the Plaintiff did not discharge that burden. The said section provides that;
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
65. Sub-section (2) provides that
“When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
66. It was held by the Court of Appeal in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000]eKLR relied upon by State Counsel that:
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett (1878) 7 Ch. D 473 at 489.”
67. Further to this, the courts have held that allegations of fraud are subject to a higher standard of proof. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] eKLR the court held that:
“Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities. No evidence was tendered to this end by the appellants. They did not call any witness from the land office to verify their allegations.”
68. The Plaintiff failed to call any evidence to prove that the acreage on his father’s parcel of land was altered in any way. When given an opportunity to call a surveyor to prove this point, the Plaintiff abandoned his request to produce documents he had filed in court named “the ground area confirmation for original parcel 929”.
69. In the Court’s view, if the Plaintiff’s claim is against the adjudication process, he should have sought relief in the procedure of adjudication elaborated above and objected at any of the stages during the adjudication process. In the Court’s view the procedures and processes provided under the Land Adjudication Act for settling any dispute arising such as the one in this case, would have been heard and determined using the available dispute resolution mechanisms.
70. Legal authorities abound that hold that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process. This was well set out in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, that was relied upon by State Counsel, where the Court of Appeal held that: -
“… In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”
71. This is not to say that the Courts are not available to anyone who may need legal redress as they indeed are open to all, but matters of adjudication are best dealt with under the Land Adjudication Act CAP 284 as they work with officers and elders who are on the ground and are best suited to ascertain the rights and interests of the land under adjudication.
72. The Court thus finds that the Plaintiff has not proven to the required standard that the suit property’s acreage was reduced at all or unprocedurally.
(B)Whether the 4th -8th defendants’ trespassed onto the suit property
73. The Plaintiff claimed that there has been trespass onto his father’s property, Land Parcel 929 Kituvwi Adjudication Section.
74. Section 3 (1) of the Trespass Act, defines trespass as follows;
“Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.”
75. The Court in the case of M’Mukanya v M’Mbijiwe (1984) KLR 761 stated that:
“trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership (See Thomson v Ward, (1953) 2QB 153.”
76. The Plaintiff seeks a permanent injunction and relied on the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib (2018) eKLR where it was held inter alia as follows;
“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected. A permanent injunction is different from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specified time or until the issuance of further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties...Generally, an injunction is sought in addition to other remedies. It is often difficult to seek an injunctive relief as a stand-alone remedy. In most cases it accompanies declaratory orders.”
77. The evidence on record shows, and the court finds, that the suit parcel of land which was originally Land Parcel Kituvwi Adjudication Section P./NO.929 situated at Kituvwi sub-location, Kanziko Location within Ikutha sub-County Kitui County and which later became land parcel number Mutomo/Kituvwi/929 measures 11.46 Hectares and not 1560 acres. The court further finds that the according to the evidence on record the said parcel of land is registered in the names of Ndonyi Mbuvi (deceased) and Ndonyi Kavinga and is owned in common each having half undivided shares. The court further convinced by the evidence on record that the 4th – 8th Defendants are owners of the following parcels of land:-
i). Ndonyi Kavinga - LR Mutomo/928.
ii). Muzembi Kitheka - LR Mutomo/Kituvwi/597.
iii). Jackson Kyalo Kitheka – LR Mutomo/Kituvwi/594.
iv). Peter Matingi Kivungi – LR Mutomo/Kituvwi/596
78. The Court further finds that the Plaintiff has failed to prove that the 4th to 8th Defendants trespassed upon the suit parcel of land as claimed.
79. The final order of the court is that the Plaintiff’s suit has no merit and the following orders are issued;
1) The Plaintiff’s suit is hereby dismissed.
2) Costs of the suit are awarded to the 1st to 3rd and 9th Defendants