JUDGMENT
INTRODUCTION AND PLEADINGS
1. It has been restated time and again by the Supreme Court, the Court of Appeal, several Judges of this Court, including myself, and many subordinate courts that the root of a title of any property is of fundamental importance to any claim by an alleged owner thereof. Let it go on record once more that for a party to successfully vouch for a title he/she/it claims to own, he/she/it must demonstrate that the root that “grew” or supports the title ought to be genuine and of the right and lawful foundation. Otherwise such a title is a nullity, hollow and fruitless, and gives both bitter and poisonous fruits to both the owner and society no matter how long one has/ holds it because such " foundationless " ownership documents have lain the props of pilferage of our country’s public resources, deprived of private individuals their rightful resources and possessions, and often engendered corruption and social strive.
2. With the above in mind, I now turn to the competing claims herein: as contained in the Plaint and Defence and Counterclaim and subsequent pleadings. Through a Plaint dated 14th April 2014, the Plaintiff sued the Defendants seeking the following reliefs, as listed verbatim;
i) Declaration that the plaintiff is the registered and/or lawful owner of LR. NO. SOUTH SAKWA/WAWARE/1084.
ii) Permanent injunction restraining the 1st and 2nd defendants either by themselves, agents, servants and/or any one claiming under the said defendants from entering upon, re-entering, trespassing onto, cultivating, alienating, wasting, building structures (on), interfering with and/or in any other manner dealing with the suit land, that is LR. NO. SOUTH SAKWA/WAWARE/1084 and/or any portion thereof.
iii) General damages for trespass.
iv) Interest on (iv) hereof at court rates.
v) Costs of this suit to be borne by the defendant.
vi) Such further and/or other relief as the Honorable court may deem fit and expedient so to grant.
3. The Plaintiff pleaded that the parcel of land known as South Sakwa/Waware/1084 was registered in his names on 7th February 2012. Further, it originated from parcel No. South Sakwa/Waware/925 which was registered in the name of one Risper Auma James. That she sub divided it on 7th December 2006. She entered into a sale agreement with the Plaintiff subsequent to which the suit land was then transferred and registered in his name, and he took possession of it.
4. The Plaintiff averred further that on 1st April 2014, the 1st and 2nd Defendants illegally entered his land. They began to cultivate it, depriving him of his right to possession and use of the same. He then instituted the present suit seeking the aforementioned reliefs.
5. The defendants entered Appearance and filed an Amended Statement of Defence and Counterclaim on 18th March 2021. In it they contended that land parcel L.R. No. South Sakwa/Waware/155 had been acquired by the Government, and the Plaintiff had fraudulently obtained the suit property. They sought the dismissal of the Plaintiff’s suit and the following reliefs in the Counterclaim;
1) A declaration that LR. NO. SOUTH SAKWA/WAWARE/155 was legally acquired by the Government of Kenya.
2) A declaration that the 1st defendant in the counterclaim is a trespasser on LR. NO. SOUTH SAKWA/WAWARE/155.
3) An order of eviction do issue against the 1st defendant from land known as LR. NO. SOUTH SAKWA/WAWARE/155.
4) An order revoking the defendant alleged title to LR. NO. SOUTH SAKWA/WAWARE/1084.
5) Permanent injunction restraining the 1st defendant in the counterclaim either by himself, through his agents or servants from interfering in any way with LR. NO. SOUTH SAKWA/WAWARE/1084.
6) General damages.
6. The Defendant to the Counterclaim then filed a Reply to the Amended Statement of Defence and Counterclaim whereby he generally denied its contents.
7. It is worth stating at this point that this suit was initially Kisii ELC No. 151 OF 2014. It was later transferred to this Court and registered Migori as ELCC No. 61 of 2017 which is the instant suit.
8. The matter then proceeded for hearing. On his part the plaintiff called three (3) witnesses in support of his case whereas the defendants called two (2).
EVIDENCE
9. PW1 was Samwel Oketch Onyango, the Plaintiff. He testified that he knew the late Risper Auma James in January 2011. She sold to him land parcel No. South Sakwa/Waware/ 1084, approximately 2.59 hectares which was derived from land parcel No. South Sakwa/Waware/925. As part of due diligence, Risper Auma James gave him a copy of the Judgment in Kisumu HCCC No. 417 of 1999, which was between James Matu -vs- Sony Out Growers Co. Ltd and Anor which was delivered on 26th November 2004. He produced herein the decree issued therein pursuant to the Judgment as P Exhibit 3. Further, that he was shown a copy of title deed to the suit land. It was given/ issued on 5th March 2007. He produced it as PExhibit 4.
10. He stated that on 5th May 2011 he entered into a sale agreement with Risper Auma in respect of the land. He obtained a title deed issued on 7th July 2012. The claimant stated further that on 31st March 2014, when he sought to fence the suit land the 1st and 2nd defendants repulsed his agents. He, additionally, stated that the green card for L.R. No. South Sakwa/Waware/925 showed that James Matu Odoyo was the proprietor and the name of Awendo Police Station does not feature on it.
11. During cross examination, the witness stated that he purchased parcel No. 1084 and filed the sale Agreement thereto. That a transfer was prepared and a consent to transfer obtained but he did not file them in court. The purchase price was Kshs. 900,000/=. He had paid the entire amount. He stated further that he was not aware that the land was acquired by Government, and it is the court that confirmed the land belonged to Risper.
12. PW2 was Peter Wanjala, the Surveyor, Migori County who prepared a report on Parcel Nos. South Sakwa/Waware/1549 and 1084 pursuant to an Order of this court dated 31st July 2018. He testified that upon visiting the site on 20th February 2020 and carrying out a survey of the parcels, he found that parcel No. 1549 was non-existent. Further, that the site in question (suit land) was opposite the Sub-County Hospital. He added that there was need to do re-planning of the Town Plan because the boundaries, as per the Land Adjudication plans, had since changed and it was impossible to re-erect the boundaries. He stated that nevertheless he carried out the survey within the vicinity of the 2.6 Ha parcel. He added that if the land was compulsorily acquired the process was not exhaustively done.
13. During cross examination, he stated that he was aware that in 1978 the Government acquired the area around Sakwa/Waware. Further, he had the green card for parcel 1084. It shows it resulted from a subdivision of parcel No. 925. The subdivision was done in 2007. That Parcel 925 is itself was a subdivision of parcel No. 652 and it was subdivided in 1998. The subdivision was carried out in 1975 from parcel No. L.R. No. South Sakwa/Waware/155. The Government had acquired parcel No. 155 on 30th May 1976 and a caution placed on the land 30th May 1977, and there was no entry to show that the caution was removed.
14. His further evidence was that the Gazette Notice dated 8th October 1976 lists the parcels that the Government wanted to acquire. It included South Sakwa/Waware/155 whose original owner was Mr. Odoyo Ojambi whose name appears in the Green Card. There was also another Gazette Notice for intention to acquire 6.0 Ha of South Sakwa/Waware/155. The total area acquired was 21.5 hectares. Further, the owner was paid 52,240 Kshs. He urged that he did not have this information when he was preparing the report but from the records and going by the payment made the said acquisition was actualized.
15. After the acquisition of the land there was no need to retain the said South Sakwa/Waware/155 because subsequent subdivisions would be questionable but not legal. Parcel 1084 was a subdivision of South Sakwa/Waware/155 that was already acquired, and the surveyor (who did the subdivision) assumed the land was still in existence and the said information was misleading.
16. PW3 was Philip Makini the Land Registrar, Migori Land Registry. He stated that he visited the site and generated a report that was filed in court. The purpose of the visit and report was to determine the boundary between land parcels South Sakwa/Waware/1084 and 1549 pursuant to an Order of this court and to find out if Awendo Police Station was built on both land parcels. He interviewed the owner of the land and the Sub-County Police Commander. He was informed that the land was acquired by the government through compulsory acquisition. He was shown documents relating to the same. The plaintiff’s agreement stated that he bought his land from one Risper, and he stated he did due diligence and didn’t know anything about the compulsory acquisition.
17. His visit found that the Police Station is built on the sub-divisions from L.R. No. South Sakwa/Waware/155. He found that land parcel 1549 does not exist in the register. Part of the Police Station was on the parcel number 1084, belonging to Samwel Okech Onyango. He produced the Report as PExhibit 12.
18. During cross examination he stated that 1084 was created from South Sakwa/Waware/925 in 2007 when subdivision was done and South Sakwa/Waware/925 was created on 4th February 1998, as a sub-division from parcel 652. That the register for 652 was opened on 10th December 1976 and was created after sub-division of parcel/155 and it is the mother title as it was from the Adjudication exercise. That the government had acquired the original parcel as per the Adjudication records and its interest was registered in entries Nos. 3 and 4 which are dated 30th May 1977. Further, the government of Kenya claimed purchasers’ interest on parcel number LR NO. South Sakwa/Waware/155 for an area measuring 12.94 Ha and he had not seen any removal of the caution.
19. He confirmed that the last entry No. 5 had not been dated nor signed. That there was a Gazette Notice was dated 24th December 1976 and a 2nd Gazette Notice where the government wanted to acquire 6.0 Ha and added to the previous acquired. The Government acquired a total of 21.5 Ha and from the record and the register, the suit land was not available for sub-division, and any subsequent entry after the acquisition is invalid.
20. With that the Plaintiff closed his case.
21. DW1 was John Omollo Omollo, a retired senior chief of East Sakwa Location, Waware Sub Location. He stated that he was a resident of the area. Further, by the time the government was acquiring the land he was a teacher at Mulo Primary School. That there were two notices of compulsory acquisition that were issued with the first on 8th October 1976. That the suit relates to parcel number 1084. The register of the parcel was opened on 2nd May 2007. It created out of parcel number LR No. South Sakwa/Waware/925. The register was opened on 4th February 1998. It was a sub division of parcel no. 652 and was registered on 5th April 1975. It originated from parcel number LR NO. South Sakwa/Waware/155 which was the original mother title. Its register was opened on 5th April 1975 and the 1st registered owner was Odoyo Ojambi.
22. DW1 stated further that on 30th May 1977 a caution was registered on the land claiming interest in the land. There was a gazette notice dated 8th October 1977 for acquisition of 15.5 Ha from parcel LR NO. South Sakwa/Waware/155. There was a 2nd gazette notice of 24th December 1976 for acquisition of LR No. South Sakwa/Waware/155 from Odoyo Ojambi for 6.0 Ha. The suit land was thus acquired by the government through the two gazette notices. He further stated that he knew that Odoyo Ojambi was paid through Cheque as he helped him to fill the payment forms for the cheque. He confirmed that they were all compensated. He owned parcel South Sakwa/Waware/ 92 and Odoyo Ojambi was paid Kshs. 52,240/=.
23. He stated that the land was transferred fraudulently, sold and sub-divided, and it was a problem which he solved as a chief. Further, that Risper Auma has never owned any land in the area and he never found her name on any parcel that she could sell to anybody.
24. DW2 was Daniel Ambunya who stated that LR No. South Sakwa/Waware/155 was acquired by the Government and part given to Awendo Police Station. It was to be neighboured by the NCPD, Awendo Hospital and KMTC, the Catholic Church and Sony Sugar Secondary School which are all public utilities. On handing over of the station, he was given the file on the Police Station showing there was acquisition of its land. He was aware that the suit (over the acquisition of the land) went all the way to the Supreme Court. The Supreme Court found that the land was properly compulsorily acquired. He testified that on where the Police Station was situated is government land. He prayed that the land to revert back to the Station.
25. That was the close of the Defendant’s case.
26. The parties were directed to file submissions. The plaintiff filed submissions dated 3rd October 2025 whereas the Defendants filed theirs dated 7th October 2025.
The Plaintiff’s Submissions
27. Learned counsel abridged the facts underlying the case and identified the issues for determination. He urged that the first issue for determination was whether the Defendants/Counter-Claimers had the locus to lodge the Counter-Claim. He pointed out the amended statement of defence and counterclaim and particularly the allegation of trespass and urged that the Defendants never placed any documents in Court to show the nexus between the suit property and LR No. South Sakwa/Waware/1549 That in regards to the claim of fraud, only the Permanent Secretary for Ministry Lands, Public Works, Housing and Urban Development could lodge a Counter-Claim’ and not the Defendants. Counsel posited that they failed to describe on what capacity were they bringing the Counter-Claim against the Plaintiff. He emphasized that the Defendants had no title to defend, neither did they have the locus standi to lodge the Counter-Claim, placing reliance on the Supreme Court case of Torino Enterprises Limited v Attorney General [2023] KESC 79 [KLR].
28. Counsel urged that the defendants had no ownership over the said land as an Allotment Letter could not pass the title until same was perfected. Other than the Counter-Claim being statute barred, the Defendants herein had no registerable rights over and in respect of the said property and/or the suit property thus could not lodge a Counter-Claim. He urged that LR No. South Sakwa/Waware/155 had long been sub-divided hence did not exist as at the time this suit was lodged in the year 2014.
29. Counsel contended that the claim was statute barred as the suit was lodged in the year 2014 with the Defendants lodging their Counter-Claim on 18th March 2021, approximately 7 years later and therefore they could not lodge a claim of fraud against the Plaintiff and the other Defendants in the Counter-Claim. Reliance was placed on the case of Javed Iqbal Abdul Rahman & Anor vs Bernard Alfred Wekesa Sambu & Anor CACA NO. 11 OF 2001.
30. Another issue counsel identified for determination was whether the decision vide Town Council of Awendo vs Nelson Onyango & 13 Others; Abdul Malik Mohammed & 178 Others (Interested Parties) [2019] eKLR discussed the legality of the Plaintiff’s title to the suit property. He urged that during the hearing of the instant suit, the Defendants alluded to the fact that the suit property had been acquired illegally basing their arguments on the Supreme Court decision. A Notice of Preliminary Objection had been lodged by the Defendants alleging that the suit property had been compulsorily acquired and the Supreme Court Judgement confirmed as much. The Notice of Preliminary Objection was dismissed by the Court hence the suit herein proceeded.
31. Counsel submitted that it is to be noted that the suit herein was determined in the year 2019 after the Plaintiff had acquired his property and the issue in question was whether the Respondents had reversionary interest in unutilized portions of land that were compulsorily acquired by the Government. The Plaintiff herein was not a party to the said proceedings and the Gazette Notices number 2996 and 3737 of 1976 came to play in the said Petition. The Court held that the Respondents had no reversionary interest on the parcels of land listed in the Gazette Notices. The Supreme Court also held that the parcels of land listed in the Gazette Notices had been compulsorily acquired and vested in the Government of Kenya. Counsel posed the question as to whether the original suit Property was in existence in the year 1976 when the Gazette Notices were published and whether the Government can compulsorily acquire a non-existent parcel of land.
32. Learned counsel urged that by the time the Supreme Court was delivering its judgement on 30th April 2019, there had been previous suits by the original owner of the suit property and that the said courts with competent jurisdiction vindicated the original owner's rights over and in respect of the suit property. He referred the court to the Judgement and Decree vide KISUMU HCCC NO. 417 OF 1999 between James Matu and Sony Out-growers Limited & Another where the Court decreed that the Plaintiff therein was the registered owner of LR No. South Sakwa/Waware/925 which parcel of land finds its roots from the original suit property, and which decree was never set aside. He also referred to the Judgement and Decree vide KISII HCCC No. 208 OF 2009 between Risper Auma James and Abdi Hussein and Tom Lawrence Mboya in respect of the suit property and other sub-divisions of LR No. South Sakwa/Waware/925 and was held in favor of the Plaintiff therein, also the original owner of the suit Property.
33. Counsel urged that the Supreme Court case was determined in 2019 while these two cases were determined on 26th November 2004 and 29th October 2010 respectively. That the said Judgments typically meant that they remain valid and binding. The original owner was declared to be the rightful owner of the suit property and it was on the basis of the Judgments that the Plaintiff purchased the suit property and was an innocent purchaser for value.
34. Learned Counsel submitted on whether the suit property was compulsorily acquired in the year 1976 vide Gazette Notice Numbers 2996 of 8th October 1976 and 3737 of 24th December 1976. He urged that LR No. South Sakwa/Waware/155 had long been sub-divided on 5th April 1975 and therefore there was no property by that name to be acquired. Further, that it was the evidence of the Defendants that on 5th April 1975, the original suit property as captured in the Gazette Notices Nos. 2996 and 3737 of 1976 was no longer existing.
35. He urged that LR No. South Sakwa/Waware/652 & 653 being the subsequent sub-divisions of the original suit property were not affected by the compulsory acquisition in 1976 as the register had been opened on 5th April 1975 thus the Gazette Notice did not capture or state that these properties were compulsorily acquired, and there was no subsequent Gazette Notice to compulsorily acquire them.
36. It is the plaintiffs’ case that the purported caution by the Government as demonstrated in entry Number 3 on 30th May 1977 of the Green Card of LR No. South Sakwa/Waware/155 was of no significance as the title had been extinguished and/or closed. Similarly, the entries 2 and 3 of LR No. South Sakwa/Waware/652 were of no use as the said parcel of land had not been compulsorily acquired vide the Gazette Notices and this would apply to the entries made on the Green Card of LR No. South Sakwa/Waware/653.
37. Further, counsel urged that the Plaintiff explained that the original owner of the suit property had to sue the 1st Defendant when same purported to trespass on the suit property. The Defendants did not heed to the Judgment vide KISII HCCC NO. 208 OF 2009 and the trespass commenced afresh when the Plaintiff took over possession of the suit property in 2014, 4 years after the said Judgment. Counsel highlighted the findings of PW2 was the County Surveyor who produced the Report dated 24th February 2020, urging that he confirmed that the Defendants are in occupation of a portion of the suit property and the Defendants admitted as much that the Police station was constructed on the suit property. He also referred to the testimony of PW3, urging that both the experts indicated that the Defendants believed that the suit property and the area therein was compulsorily acquired by the Government hence they had the right to occupy same. He then reiterated that the Plaintiff established that in the year 1976 when the compulsory acquisition was being effected, parcel No. South Sakwa/Waware/155 had been sub divided already.
38. He urged that the plaintiff produced the Sale Agreement between him and the original owner of the suit property which demonstrated that the suit property was free from any encumbrance and, after being shown the two Judgments that decreed the Vendor as the legal owner of the suit property, he purchased it. He maintained that the Plaintiff proved his case against the Defendants on balance of probabilities and that the defendant’s only evidence of fraud was that the suit property was acquired compulsorily by the Government in 1976. That however, it has been established that the original property did not exist.
39. Counsel submitted that the plaintiff established that he is entitled to the orders sought in the Plaint and prayed that the suit be allowed with costs.
Defendants’ submissions
40. The defence counsel opened his submissions by urging that it is important to note that during the pendency of the suit, the plaintiff misinformed the court into issuing an order for the County Land Registrar and County surveyor proceed to visit and establish a boundary onto non-existent parcels of land known as LR No. South Sakwa/Waware/1084 and 1549. That though the visit was done as directed by the court and a report accordingly filed in court, the County Land Registrar and County Surveyor concurred that what's before the court is not a boundary dispute but an ownership issue which must be determined by the court.
41. Counsel urged that according to the contents of the County surveyor’s Report dated 24th February, it clearly states that indeed parcel of land known as South Sakwa/Waware/1084 falls with the Physical Development Plan which is within the planned area for Awendo Township. Equally the report by the surveyor confirms that indeed the alleged parcel of land (1084) falls within designated Awendo police station. That in summary the County Surveyor, in his report, is simply saying there is no land known as South Sakwa/Waware 1084 on the ground as the purported location of the suit land is an area that has already planned and designated for various uses by Awendo town. The planning was done way back in 1979.
42. Counsel also sought to clarify the two issues in respect to Defendant’s locus to institute Counterclaim and the issue of being statute time barred as raised by the plaintiff. He argued that the issues were never raised during the hearing of the suit and were not part of the pleadings before court hence they were an afterthought and an abuse of the Court process. Urging that submissions cannot be a substitute for pleadings especially on contested issues, he cited the holding in the two cases of Independent Electoral and Boundaries Commission & Anor, vs. Stephen Mutinda Mule & 3 others (2014) eKLR and Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR on the essence of pleadings. He urged the court disregards the said issues.
43. Additionally, that the 1st and 2nd defendants have been sued as employees of Ministry of Interior and Administration of National Government, that by virtue of their posting and occupation of the suit land they have demonstrable interest in protection of the suit land hence they derive authority to exercise the right to access court as provided for under Articles 22 and 258 of the Constitution of Kenya. He cited Priscilla Nyokabi Kanyua versus Attorney General & another Constitutional Petition No. 7 of 2010 (unreported) on the approach to locus standi. Further, the 3rd defendant in the Counterclaim is the Attorney General exercising his duties as bestowed under Article 156 of the Constitution of Kenya hence rightly before this court.
44. On the issue of the Counterclaim being statute time barred, counsel urged that the defendants’ position in respect of the suit land is that it is public land, having been compulsorily acquired and vested in the Government of Kenya in 1976, which position was affirmed by the Supreme Court of Kenya in Petition number 37 of 2014 between Town Council of Awendo vs Nelson O. Onyango and 13 others, Abdul Malik Mohamed & 178 others (sic). Therefore, the provisions of the limitation statute did not apply to recovery of public land. Similarly, the Counterclaim raised by the defendants in this matter is purely for recovery of public land as such it is exempted from the provisions of the limitation period by virtue of Sections 41 and 42 of the Limitation of Actions Act cap 22 thereof.
45. On whether the suit land known as LR No. South Sakwa/Waware/1084 is part of land known as LR No. South Sakwa/Waware/155 that was compulsorily acquired by the Government of Kenya in 1976 counsel urged that during his testimony the Land Registrar confirmed that the land known as LR No. South Sakwa/Waware/155 was one of the original parcels that emanated directly from Adjudication process. That upon being adjudicated in early 1970s, it was then registered in the name of Odoyo Ojambi on 5th April, 1975 as per entry number 1. That on 13th August, 1976 Odoyo Ojambi was issued with a land certificate as per the entry number 2. That upon acquisition of the said piece of land by the Government in 1976, a restriction was placed by the Government on 30th May, 1977 as per entry number 3.
46. The Land Registrar went further and stated that there are two strange and unsupported entries on the green card, one being entry number 4 purportedly made of 7th September 1979 which is not supported by any document and not authenticated by the signature of the Land Registrar. That the Land Registrar noted that there was some writing immediately after entry number 4 which does not have entry number, it was not dated and or signed. It purports to indicate that land known as LR No. South Sakwa/Waware/155 was closed on subdivision. He equally confirmed that there was absolutely nothing on record to support that alleged subdivision of the suit land. It is not even possible to tell when and who initiated the alleged subdivision.
47. Learned counsel posited that this unsupported, undated, unnumbered and unsigned entry allegedly creating parcels 652 and 653 is where the real mischief to appropriate public land was conceived. That the witness further confirmed that it was not possible to have land known as LR No. South Sakwa/Waware/155 subdivided without first removing the existing restriction placed by the Government through the elaborate processes established under the Act. Additionally, that according to the original green card which was produced before court, the restriction registered over LR No. South Sakwa/Waware/155 by the Government is still intact and at no point was it ever removed. He highlighted that PW3 further stated that the creation of Green cards for alleged parcels known as LR No. South Sakwa/Waware/652 and LR No. South Sakwa/Waware/653 was unsupported, irregular and the documents are thus invalid, null and void.
48. Again, counsel posited that similarly, a casual look at the allegedly created green cards for parcels number LR No. South Sakwa/Waware/652 and LR No. South Sakwa/Waware/653 would further reveal that indeed the said green cards were allegedly opened on 5th April, 1975 the same day as mother title being parcel LR No. South Sakwa/Waware/155 was being opened which is not possible at all. The records further indicate that the Land owner was issued with land certificate later on 13th August 1976.
49. Further, counsel asked the court to take judicial notice that there has been a lot of malpractice originating from the compulsory acquisition that was undertaken by the Government through Gazette notices number 2996 and 3737 of 1976. That despite compulsory acquisition and restrictions being placed on the suit parcels, the officials from the lands Ministry confirmed to the court that indeed unauthorized and irregular subdivisions were still being undertaken by the parties in conjunction with rogue Government officers from land department. This position was aptly stated in the Court of Appeal at Nairobi, Civil appeal No. 232 of 2011 between Peter Ouma Omolo and Another vs Awendo Town Council and Another
50. Learned counsel urged that the sequence further shows that after creation of two fictitious registers for parcels 652 and 653 from the alleged subdivision of parcel LR No. South Sakwa/Waware/155 parcel number LR No. South Sakwa/Waware/652 was then allegedly subdivided to create parcels LR. NO, SOUTH SAKWA/WAWARE/925 and LR No. South Sakwa/Waware/926 in the year 1998. On further scrutiny of the documents, the green card for parcel number LR No. South Sakwa/Waware/925 is allegedly subdivided thus creating the instant parcel being LR No. South Sakwa/Waware/1084 on 2nd March 2007 among others. All the above records together with testimony of the Land Registrar Clearly demonstrates that the alleged subdivisions were done on paper and not on the ground.
51. Counsel urged that these uncontested material facts lead to the irresistible conclusion that in
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INTRODUCTION AND PLEADINGS
1. It has been restated time and again by the Supreme Court, the Court of Appeal, several Judges of this Court, including myself, and many subordinate courts that the root of a title of any property is of fundamental importance to any claim by an alleged owner thereof. Let it go on record once more that for a party to successfully vouch for a title he/she/it claims to own, he/she/it must demonstrate that the root that “grew” or supports the title ought to be genuine and of the right and lawful foundation. Otherwise such a title is a nullity, hollow and fruitless, and gives both bitter and poisonous fruits to both the owner and society no matter how long one has/ holds it because such " foundationless " ownership documents have lain the props of pilferage of our country’s public resources, deprived of private individuals their rightful resources and possessions, and often engendered corruption and social strive.
2. With the above in mind, I now turn to the competing claims herein: as contained in the Plaint and Defence and Counterclaim and subsequent pleadings. Through a Plaint dated 14th April 2014, the Plaintiff sued the Defendants seeking the following reliefs, as listed verbatim;
i) Declaration that the plaintiff is the registered and/or lawful owner of LR. NO. SOUTH SAKWA/WAWARE/1084.
ii) Permanent injunction restraining the 1st and 2nd defendants either by themselves, agents, servants and/or any one claiming under the said defendants from entering upon, re-entering, trespassing onto, cultivating, alienating, wasting, building structures (on), interfering with and/or in any other manner dealing with the suit land, that is LR. NO. SOUTH SAKWA/WAWARE/1084 and/or any portion thereof.
iii) General damages for trespass.
iv) Interest on (iv) hereof at court rates.
v) Costs of this suit to be borne by the defendant.
vi) Such further and/or other relief as the Honorable court may deem fit and expedient so to grant.
3. The Plaintiff pleaded that the parcel of land known as South Sakwa/Waware/1084 was registered in his names on 7th February 2012. Further, it originated from parcel No. South Sakwa/Waware/925 which was registered in the name of one Risper Auma James. That she sub divided it on 7th December 2006. She entered into a sale agreement with the Plaintiff subsequent to which the suit land was then transferred and registered in his name, and he took possession of it.
4. The Plaintiff averred further that on 1st April 2014, the 1st and 2nd Defendants illegally entered his land. They began to cultivate it, depriving him of his right to possession and use of the same. He then instituted the present suit seeking the aforementioned reliefs.
5. The defendants entered Appearance and filed an Amended Statement of Defence and Counterclaim on 18th March 2021. In it they contended that land parcel L.R. No. South Sakwa/Waware/155 had been acquired by the Government, and the Plaintiff had fraudulently obtained the suit property. They sought the dismissal of the Plaintiff’s suit and the following reliefs in the Counterclaim;
1) A declaration that LR. NO. SOUTH SAKWA/WAWARE/155 was legally acquired by the Government of Kenya.
2) A declaration that the 1st defendant in the counterclaim is a trespasser on LR. NO. SOUTH SAKWA/WAWARE/155.
3) An order of eviction do issue against the 1st defendant from land known as LR. NO. SOUTH SAKWA/WAWARE/155.
4) An order revoking the defendant alleged title to LR. NO. SOUTH SAKWA/WAWARE/1084.
5) Permanent injunction restraining the 1st defendant in the counterclaim either by himself, through his agents or servants from interfering in any way with LR. NO. SOUTH SAKWA/WAWARE/1084.
6) General damages.
6. The Defendant to the Counterclaim then filed a Reply to the Amended Statement of Defence and Counterclaim whereby he generally denied its contents.
7. It is worth stating at this point that this suit was initially Kisii ELC No. 151 OF 2014. It was later transferred to this Court and registered Migori as ELCC No. 61 of 2017 which is the instant suit.
8. The matter then proceeded for hearing. On his part the plaintiff called three (3) witnesses in support of his case whereas the defendants called two (2).
EVIDENCE
9. PW1 was Samwel Oketch Onyango, the Plaintiff. He testified that he knew the late Risper Auma James in January 2011. She sold to him land parcel No. South Sakwa/Waware/ 1084, approximately 2.59 hectares which was derived from land parcel No. South Sakwa/Waware/925. As part of due diligence, Risper Auma James gave him a copy of the Judgment in Kisumu HCCC No. 417 of 1999, which was between James Matu -vs- Sony Out Growers Co. Ltd and Anor which was delivered on 26th November 2004. He produced herein the decree issued therein pursuant to the Judgment as P Exhibit 3. Further, that he was shown a copy of title deed to the suit land. It was given/ issued on 5th March 2007. He produced it as PExhibit 4.
10. He stated that on 5th May 2011 he entered into a sale agreement with Risper Auma in respect of the land. He obtained a title deed issued on 7th July 2012. The claimant stated further that on 31st March 2014, when he sought to fence the suit land the 1st and 2nd defendants repulsed his agents. He, additionally, stated that the green card for L.R. No. South Sakwa/Waware/925 showed that James Matu Odoyo was the proprietor and the name of Awendo Police Station does not feature on it.
11. During cross examination, the witness stated that he purchased parcel No. 1084 and filed the sale Agreement thereto. That a transfer was prepared and a consent to transfer obtained but he did not file them in court. The purchase price was Kshs. 900,000/=. He had paid the entire amount. He stated further that he was not aware that the land was acquired by Government, and it is the court that confirmed the land belonged to Risper.
12. PW2 was Peter Wanjala, the Surveyor, Migori County who prepared a report on Parcel Nos. South Sakwa/Waware/1549 and 1084 pursuant to an Order of this court dated 31st July 2018. He testified that upon visiting the site on 20th February 2020 and carrying out a survey of the parcels, he found that parcel No. 1549 was non-existent. Further, that the site in question (suit land) was opposite the Sub-County Hospital. He added that there was need to do re-planning of the Town Plan because the boundaries, as per the Land Adjudication plans, had since changed and it was impossible to re-erect the boundaries. He stated that nevertheless he carried out the survey within the vicinity of the 2.6 Ha parcel. He added that if the land was compulsorily acquired the process was not exhaustively done.
13. During cross examination, he stated that he was aware that in 1978 the Government acquired the area around Sakwa/Waware. Further, he had the green card for parcel 1084. It shows it resulted from a subdivision of parcel No. 925. The subdivision was done in 2007. That Parcel 925 is itself was a subdivision of parcel No. 652 and it was subdivided in 1998. The subdivision was carried out in 1975 from parcel No. L.R. No. South Sakwa/Waware/155. The Government had acquired parcel No. 155 on 30th May 1976 and a caution placed on the land 30th May 1977, and there was no entry to show that the caution was removed.
14. His further evidence was that the Gazette Notice dated 8th October 1976 lists the parcels that the Government wanted to acquire. It included South Sakwa/Waware/155 whose original owner was Mr. Odoyo Ojambi whose name appears in the Green Card. There was also another Gazette Notice for intention to acquire 6.0 Ha of South Sakwa/Waware/155. The total area acquired was 21.5 hectares. Further, the owner was paid 52,240 Kshs. He urged that he did not have this information when he was preparing the report but from the records and going by the payment made the said acquisition was actualized.
15. After the acquisition of the land there was no need to retain the said South Sakwa/Waware/155 because subsequent subdivisions would be questionable but not legal. Parcel 1084 was a subdivision of South Sakwa/Waware/155 that was already acquired, and the surveyor (who did the subdivision) assumed the land was still in existence and the said information was misleading.
16. PW3 was Philip Makini the Land Registrar, Migori Land Registry. He stated that he visited the site and generated a report that was filed in court. The purpose of the visit and report was to determine the boundary between land parcels South Sakwa/Waware/1084 and 1549 pursuant to an Order of this court and to find out if Awendo Police Station was built on both land parcels. He interviewed the owner of the land and the Sub-County Police Commander. He was informed that the land was acquired by the government through compulsory acquisition. He was shown documents relating to the same. The plaintiff’s agreement stated that he bought his land from one Risper, and he stated he did due diligence and didn’t know anything about the compulsory acquisition.
17. His visit found that the Police Station is built on the sub-divisions from L.R. No. South Sakwa/Waware/155. He found that land parcel 1549 does not exist in the register. Part of the Police Station was on the parcel number 1084, belonging to Samwel Okech Onyango. He produced the Report as PExhibit 12.
18. During cross examination he stated that 1084 was created from South Sakwa/Waware/925 in 2007 when subdivision was done and South Sakwa/Waware/925 was created on 4th February 1998, as a sub-division from parcel 652. That the register for 652 was opened on 10th December 1976 and was created after sub-division of parcel/155 and it is the mother title as it was from the Adjudication exercise. That the government had acquired the original parcel as per the Adjudication records and its interest was registered in entries Nos. 3 and 4 which are dated 30th May 1977. Further, the government of Kenya claimed purchasers’ interest on parcel number LR NO. South Sakwa/Waware/155 for an area measuring 12.94 Ha and he had not seen any removal of the caution.
19. He confirmed that the last entry No. 5 had not been dated nor signed. That there was a Gazette Notice was dated 24th December 1976 and a 2nd Gazette Notice where the government wanted to acquire 6.0 Ha and added to the previous acquired. The Government acquired a total of 21.5 Ha and from the record and the register, the suit land was not available for sub-division, and any subsequent entry after the acquisition is invalid.
20. With that the Plaintiff closed his case.
21. DW1 was John Omollo Omollo, a retired senior chief of East Sakwa Location, Waware Sub Location. He stated that he was a resident of the area. Further, by the time the government was acquiring the land he was a teacher at Mulo Primary School. That there were two notices of compulsory acquisition that were issued with the first on 8th October 1976. That the suit relates to parcel number 1084. The register of the parcel was opened on 2nd May 2007. It created out of parcel number LR No. South Sakwa/Waware/925. The register was opened on 4th February 1998. It was a sub division of parcel no. 652 and was registered on 5th April 1975. It originated from parcel number LR NO. South Sakwa/Waware/155 which was the original mother title. Its register was opened on 5th April 1975 and the 1st registered owner was Odoyo Ojambi.
22. DW1 stated further that on 30th May 1977 a caution was registered on the land claiming interest in the land. There was a gazette notice dated 8th October 1977 for acquisition of 15.5 Ha from parcel LR NO. South Sakwa/Waware/155. There was a 2nd gazette notice of 24th December 1976 for acquisition of LR No. South Sakwa/Waware/155 from Odoyo Ojambi for 6.0 Ha. The suit land was thus acquired by the government through the two gazette notices. He further stated that he knew that Odoyo Ojambi was paid through Cheque as he helped him to fill the payment forms for the cheque. He confirmed that they were all compensated. He owned parcel South Sakwa/Waware/ 92 and Odoyo Ojambi was paid Kshs. 52,240/=.
23. He stated that the land was transferred fraudulently, sold and sub-divided, and it was a problem which he solved as a chief. Further, that Risper Auma has never owned any land in the area and he never found her name on any parcel that she could sell to anybody.
24. DW2 was Daniel Ambunya who stated that LR No. South Sakwa/Waware/155 was acquired by the Government and part given to Awendo Police Station. It was to be neighboured by the NCPD, Awendo Hospital and KMTC, the Catholic Church and Sony Sugar Secondary School which are all public utilities. On handing over of the station, he was given the file on the Police Station showing there was acquisition of its land. He was aware that the suit (over the acquisition of the land) went all the way to the Supreme Court. The Supreme Court found that the land was properly compulsorily acquired. He testified that on where the Police Station was situated is government land. He prayed that the land to revert back to the Station.
25. That was the close of the Defendant’s case.
26. The parties were directed to file submissions. The plaintiff filed submissions dated 3rd October 2025 whereas the Defendants filed theirs dated 7th October 2025.
The Plaintiff’s Submissions
27. Learned counsel abridged the facts underlying the case and identified the issues for determination. He urged that the first issue for determination was whether the Defendants/Counter-Claimers had the locus to lodge the Counter-Claim. He pointed out the amended statement of defence and counterclaim and particularly the allegation of trespass and urged that the Defendants never placed any documents in Court to show the nexus between the suit property and LR No. South Sakwa/Waware/1549 That in regards to the claim of fraud, only the Permanent Secretary for Ministry Lands, Public Works, Housing and Urban Development could lodge a Counter-Claim’ and not the Defendants. Counsel posited that they failed to describe on what capacity were they bringing the Counter-Claim against the Plaintiff. He emphasized that the Defendants had no title to defend, neither did they have the locus standi to lodge the Counter-Claim, placing reliance on the Supreme Court case of Torino Enterprises Limited v Attorney General [2023] KESC 79 [KLR].
28. Counsel urged that the defendants had no ownership over the said land as an Allotment Letter could not pass the title until same was perfected. Other than the Counter-Claim being statute barred, the Defendants herein had no registerable rights over and in respect of the said property and/or the suit property thus could not lodge a Counter-Claim. He urged that LR No. South Sakwa/Waware/155 had long been sub-divided hence did not exist as at the time this suit was lodged in the year 2014.
29. Counsel contended that the claim was statute barred as the suit was lodged in the year 2014 with the Defendants lodging their Counter-Claim on 18th March 2021, approximately 7 years later and therefore they could not lodge a claim of fraud against the Plaintiff and the other Defendants in the Counter-Claim. Reliance was placed on the case of Javed Iqbal Abdul Rahman & Anor vs Bernard Alfred Wekesa Sambu & Anor CACA NO. 11 OF 2001.
30. Another issue counsel identified for determination was whether the decision vide Town Council of Awendo vs Nelson Onyango & 13 Others; Abdul Malik Mohammed & 178 Others (Interested Parties) [2019] eKLR discussed the legality of the Plaintiff’s title to the suit property. He urged that during the hearing of the instant suit, the Defendants alluded to the fact that the suit property had been acquired illegally basing their arguments on the Supreme Court decision. A Notice of Preliminary Objection had been lodged by the Defendants alleging that the suit property had been compulsorily acquired and the Supreme Court Judgement confirmed as much. The Notice of Preliminary Objection was dismissed by the Court hence the suit herein proceeded.
31. Counsel submitted that it is to be noted that the suit herein was determined in the year 2019 after the Plaintiff had acquired his property and the issue in question was whether the Respondents had reversionary interest in unutilized portions of land that were compulsorily acquired by the Government. The Plaintiff herein was not a party to the said proceedings and the Gazette Notices number 2996 and 3737 of 1976 came to play in the said Petition. The Court held that the Respondents had no reversionary interest on the parcels of land listed in the Gazette Notices. The Supreme Court also held that the parcels of land listed in the Gazette Notices had been compulsorily acquired and vested in the Government of Kenya. Counsel posed the question as to whether the original suit Property was in existence in the year 1976 when the Gazette Notices were published and whether the Government can compulsorily acquire a non-existent parcel of land.
32. Learned counsel urged that by the time the Supreme Court was delivering its judgement on 30th April 2019, there had been previous suits by the original owner of the suit property and that the said courts with competent jurisdiction vindicated the original owner's rights over and in respect of the suit property. He referred the court to the Judgement and Decree vide KISUMU HCCC NO. 417 OF 1999 between James Matu and Sony Out-growers Limited & Another where the Court decreed that the Plaintiff therein was the registered owner of LR No. South Sakwa/Waware/925 which parcel of land finds its roots from the original suit property, and which decree was never set aside. He also referred to the Judgement and Decree vide KISII HCCC No. 208 OF 2009 between Risper Auma James and Abdi Hussein and Tom Lawrence Mboya in respect of the suit property and other sub-divisions of LR No. South Sakwa/Waware/925 and was held in favor of the Plaintiff therein, also the original owner of the suit Property.
33. Counsel urged that the Supreme Court case was determined in 2019 while these two cases were determined on 26th November 2004 and 29th October 2010 respectively. That the said Judgments typically meant that they remain valid and binding. The original owner was declared to be the rightful owner of the suit property and it was on the basis of the Judgments that the Plaintiff purchased the suit property and was an innocent purchaser for value.
34. Learned Counsel submitted on whether the suit property was compulsorily acquired in the year 1976 vide Gazette Notice Numbers 2996 of 8th October 1976 and 3737 of 24th December 1976. He urged that LR No. South Sakwa/Waware/155 had long been sub-divided on 5th April 1975 and therefore there was no property by that name to be acquired. Further, that it was the evidence of the Defendants that on 5th April 1975, the original suit property as captured in the Gazette Notices Nos. 2996 and 3737 of 1976 was no longer existing.
35. He urged that LR No. South Sakwa/Waware/652 & 653 being the subsequent sub-divisions of the original suit property were not affected by the compulsory acquisition in 1976 as the register had been opened on 5th April 1975 thus the Gazette Notice did not capture or state that these properties were compulsorily acquired, and there was no subsequent Gazette Notice to compulsorily acquire them.
36. It is the plaintiffs’ case that the purported caution by the Government as demonstrated in entry Number 3 on 30th May 1977 of the Green Card of LR No. South Sakwa/Waware/155 was of no significance as the title had been extinguished and/or closed. Similarly, the entries 2 and 3 of LR No. South Sakwa/Waware/652 were of no use as the said parcel of land had not been compulsorily acquired vide the Gazette Notices and this would apply to the entries made on the Green Card of LR No. South Sakwa/Waware/653.
37. Further, counsel urged that the Plaintiff explained that the original owner of the suit property had to sue the 1st Defendant when same purported to trespass on the suit property. The Defendants did not heed to the Judgment vide KISII HCCC NO. 208 OF 2009 and the trespass commenced afresh when the Plaintiff took over possession of the suit property in 2014, 4 years after the said Judgment. Counsel highlighted the findings of PW2 was the County Surveyor who produced the Report dated 24th February 2020, urging that he confirmed that the Defendants are in occupation of a portion of the suit property and the Defendants admitted as much that the Police station was constructed on the suit property. He also referred to the testimony of PW3, urging that both the experts indicated that the Defendants believed that the suit property and the area therein was compulsorily acquired by the Government hence they had the right to occupy same. He then reiterated that the Plaintiff established that in the year 1976 when the compulsory acquisition was being effected, parcel No. South Sakwa/Waware/155 had been sub divided already.
38. He urged that the plaintiff produced the Sale Agreement between him and the original owner of the suit property which demonstrated that the suit property was free from any encumbrance and, after being shown the two Judgments that decreed the Vendor as the legal owner of the suit property, he purchased it. He maintained that the Plaintiff proved his case against the Defendants on balance of probabilities and that the defendant’s only evidence of fraud was that the suit property was acquired compulsorily by the Government in 1976. That however, it has been established that the original property did not exist.
39. Counsel submitted that the plaintiff established that he is entitled to the orders sought in the Plaint and prayed that the suit be allowed with costs.
Defendants’ submissions
40. The defence counsel opened his submissions by urging that it is important to note that during the pendency of the suit, the plaintiff misinformed the court into issuing an order for the County Land Registrar and County surveyor proceed to visit and establish a boundary onto non-existent parcels of land known as LR No. South Sakwa/Waware/1084 and 1549. That though the visit was done as directed by the court and a report accordingly filed in court, the County Land Registrar and County Surveyor concurred that what's before the court is not a boundary dispute but an ownership issue which must be determined by the court.
41. Counsel urged that according to the contents of the County surveyor’s Report dated 24th February, it clearly states that indeed parcel of land known as South Sakwa/Waware/1084 falls with the Physical Development Plan which is within the planned area for Awendo Township. Equally the report by the surveyor confirms that indeed the alleged parcel of land (1084) falls within designated Awendo police station. That in summary the County Surveyor, in his report, is simply saying there is no land known as South Sakwa/Waware 1084 on the ground as the purported location of the suit land is an area that has already planned and designated for various uses by Awendo town. The planning was done way back in 1979.
42. Counsel also sought to clarify the two issues in respect to Defendant’s locus to institute Counterclaim and the issue of being statute time barred as raised by the plaintiff. He argued that the issues were never raised during the hearing of the suit and were not part of the pleadings before court hence they were an afterthought and an abuse of the Court process. Urging that submissions cannot be a substitute for pleadings especially on contested issues, he cited the holding in the two cases of Independent Electoral and Boundaries Commission & Anor, vs. Stephen Mutinda Mule & 3 others (2014) eKLR and Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR on the essence of pleadings. He urged the court disregards the said issues.
43. Additionally, that the 1st and 2nd defendants have been sued as employees of Ministry of Interior and Administration of National Government, that by virtue of their posting and occupation of the suit land they have demonstrable interest in protection of the suit land hence they derive authority to exercise the right to access court as provided for under Articles 22 and 258 of the Constitution of Kenya. He cited Priscilla Nyokabi Kanyua versus Attorney General & another Constitutional Petition No. 7 of 2010 (unreported) on the approach to locus standi. Further, the 3rd defendant in the Counterclaim is the Attorney General exercising his duties as bestowed under Article 156 of the Constitution of Kenya hence rightly before this court.
44. On the issue of the Counterclaim being statute time barred, counsel urged that the defendants’ position in respect of the suit land is that it is public land, having been compulsorily acquired and vested in the Government of Kenya in 1976, which position was affirmed by the Supreme Court of Kenya in Petition number 37 of 2014 between Town Council of Awendo vs Nelson O. Onyango and 13 others, Abdul Malik Mohamed & 178 others (sic). Therefore, the provisions of the limitation statute did not apply to recovery of public land. Similarly, the Counterclaim raised by the defendants in this matter is purely for recovery of public land as such it is exempted from the provisions of the limitation period by virtue of Sections 41 and 42 of the Limitation of Actions Act cap 22 thereof.
45. On whether the suit land known as LR No. South Sakwa/Waware/1084 is part of land known as LR No. South Sakwa/Waware/155 that was compulsorily acquired by the Government of Kenya in 1976 counsel urged that during his testimony the Land Registrar confirmed that the land known as LR No. South Sakwa/Waware/155 was one of the original parcels that emanated directly from Adjudication process. That upon being adjudicated in early 1970s, it was then registered in the name of Odoyo Ojambi on 5th April, 1975 as per entry number 1. That on 13th August, 1976 Odoyo Ojambi was issued with a land certificate as per the entry number 2. That upon acquisition of the said piece of land by the Government in 1976, a restriction was placed by the Government on 30th May, 1977 as per entry number 3.
46. The Land Registrar went further and stated that there are two strange and unsupported entries on the green card, one being entry number 4 purportedly made of 7th September 1979 which is not supported by any document and not authenticated by the signature of the Land Registrar. That the Land Registrar noted that there was some writing immediately after entry number 4 which does not have entry number, it was not dated and or signed. It purports to indicate that land known as LR No. South Sakwa/Waware/155 was closed on subdivision. He equally confirmed that there was absolutely nothing on record to support that alleged subdivision of the suit land. It is not even possible to tell when and who initiated the alleged subdivision.
47. Learned counsel posited that this unsupported, undated, unnumbered and unsigned entry allegedly creating parcels 652 and 653 is where the real mischief to appropriate public land was conceived. That the witness further confirmed that it was not possible to have land known as LR No. South Sakwa/Waware/155 subdivided without first removing the existing restriction placed by the Government through the elaborate processes established under the Act. Additionally, that according to the original green card which was produced before court, the restriction registered over LR No. South Sakwa/Waware/155 by the Government is still intact and at no point was it ever removed. He highlighted that PW3 further stated that the creation of Green cards for alleged parcels known as LR No. South Sakwa/Waware/652 and LR No. South Sakwa/Waware/653 was unsupported, irregular and the documents are thus invalid, null and void.
48. Again, counsel posited that similarly, a casual look at the allegedly created green cards for parcels number LR No. South Sakwa/Waware/652 and LR No. South Sakwa/Waware/653 would further reveal that indeed the said green cards were allegedly opened on 5th April, 1975 the same day as mother title being parcel LR No. South Sakwa/Waware/155 was being opened which is not possible at all. The records further indicate that the Land owner was issued with land certificate later on 13th August 1976.
49. Further, counsel asked the court to take judicial notice that there has been a lot of malpractice originating from the compulsory acquisition that was undertaken by the Government through Gazette notices number 2996 and 3737 of 1976. That despite compulsory acquisition and restrictions being placed on the suit parcels, the officials from the lands Ministry confirmed to the court that indeed unauthorized and irregular subdivisions were still being undertaken by the parties in conjunction with rogue Government officers from land department. This position was aptly stated in the Court of Appeal at Nairobi, Civil appeal No. 232 of 2011 between Peter Ouma Omolo and Another vs Awendo Town Council and Another
50. Learned counsel urged that the sequence further shows that after creation of two fictitious registers for parcels 652 and 653 from the alleged subdivision of parcel LR No. South Sakwa/Waware/155 parcel number LR No. South Sakwa/Waware/652 was then allegedly subdivided to create parcels LR. NO, SOUTH SAKWA/WAWARE/925 and LR No. South Sakwa/Waware/926 in the year 1998. On further scrutiny of the documents, the green card for parcel number LR No. South Sakwa/Waware/925 is allegedly subdivided thus creating the instant parcel being LR No. South Sakwa/Waware/1084 on 2nd March 2007 among others. All the above records together with testimony of the Land Registrar Clearly demonstrates that the alleged subdivisions were done on paper and not on the ground.
51. Counsel urged that these uncontested material facts lead to the irresistible conclusion that in
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