1. The Petitioners commenced these pleadings vide a Petition dated 06/02/2025 wherein they sought for a declaration that the enforcement notice of 31/01/ 2024 was arbitrary and unlawful; a declaration that their parcels of land E.Bukusu/N.Kanduyi/6573 and E.Bukusu/N.Kanduyi/6574 (“the suit properties”) do not encroach the Masinde Muliro Stadium land; a permanent injunction against the Respondents from demolishing buildings erected on the suit property or in any way interfering with the Petitioners’ quiet and peaceful occupation; and costs of the petition.
2. In response to the petition, the Respondents filed among other documents a replying affidavit sworn on 26/02/2024 and a cross-petition filed by the 3rd Respondent dated 06/03/2024 wherein they sought for a series of declarations and orders, namely that the suit properties, LR No. E. Bukusu/N. Kanduyi/6573 and LR No. E. Bukusu/N. Kanduyi/6574, form part of the original public land parcel LR No. E. Bukusu/N. Kanduyi/882, which had been reserved for use as a public football ground (Kanduyi Stadium). They further seek a declaration that the Petitioners’ title deeds over the said parcels were illegally, improperly, fraudulently, and irregularly acquired and are therefore null and void. Consequently, they pray for cancellation and revocation of those titles and for the land to revert to the Cross-Petitioner to hold in trust for the public. They also seek a permanent injunction restraining the Petitioners from dealing with the properties in any manner, damages for alleged unlawful occupation, the setting aside of conservatory orders previously issued against the Respondents, costs of the Cross-Petition, and any other orders the Court may deem just and fair.
3. Despite the petition having been set down for hearing, the Petitioners failed to prosecute it, leading to its dismissal with costs to the Respondents. Subsequently, the cross-petition was scheduled for hearing and proceeded ex-parte by way of oral evidence.
Evidence on cross-petition.
4. DW1Douglas Sasila Wekesa testified that he is the County Executive Committee member for Lands, Urban & Physical Planning, Housing and Municipalities in Bungoma County. He made reference to a replying affidavit sworn by himself dated 26/02/2024 and adopted the same as his evidence in chief. He further referred to the cross-petition dated 06/03/2024. He produced as documentary evidence the annexures of his affidavit as DExhibit 1-6. He testified that the parcels of land in dispute herein are land parcel no. E.Bukusu/N.Kanduyi/6574 and 6573 which are a sub-division of land parcel no. E.Bukusu/N.Kanduyi/4642 which was a sub-division of land parcel no. E.Bukusu/N.Kanduyi/2725 a sub-division of land parcel no. E.Bukusu/N.Kanduyi/882.
5. It was his evidence that the latter was registered in the name of Bungoma County Council and reserved for a public football ground. He testified that the subsequent sub-division of the said land was unauthorized and illegal despite being entered in the land registers green card. He testified that he did not know the land registrar who registered the sub-divisions.
6. DW2 George Olwaro Nyangweso testified that he is the Bungoma County Lands Registrar. He testified that the parcels in issue are sub-divisions of land parcel no. E.Bukusu/N.Kanduyi/882 measuring 11.8ha which was first registered on 22/05/1973 in the name of the defunct County Council of Bungoma and reserved for public football grounds. The said land was on 03/07/1997 sub-divided into land parcel no. E.Bukusu/N.Kanduyi/2725 and 2726. On 15/12/2008 land parcel no. E.Bukusu/N.Kanduyi/2725 was further sub-divided into land parcel no. E.Bukusu/N.Kanduyi/4623-4649 with the remark of being reserved for public football grounds. That land parcel no. E.Bukusu/N.Kanduyi/4642 measuring 0.053ha was later registered in the names of Joseph Khisa and Alex Khisa and transferred to Erastus M.Wafula and a title issued to him all on the same date. That on 01/10/2013 the said land was transferred to the Petitioners and sub-divided into land parcel no. E.Bukusu/N.Kanduyi/6573 and 6574 in the Petitioners joint names. He testified that he had no document to confirm whether the said parcels were registered procedurally.
Respondents submissions on the cross-petition.
7. The Respondents filed submissions dated 16/11/2025 in support of their cross-petition where they submitted that the central issue in dispute is whether the suit properties were capable of being reallocated to private individuals such as the Petitioners, a determination that also addresses the legality of the titles they claim. Evidence shows that LR No. E. Bukusu/N. Kanduyi/6573 and 6574 originated from a chain of subdivisions stemming from LR No. E. Bukusu/N. Kanduyi/882, which had long been reserved as public land for the Kanduyi (now Masinde Muliro) Stadium and registered in the name of the 3rd Respondent. They argued that the Petitioners neither disputed nor challenged these facts by way of affidavit or during the hearing. 3rdConsequently, the Respondents’ assertion that the properties form part of public land remains uncontroverted.
8. It was further their submission that the Petitioners did not carry out due diligence as the registry document indicated that the sit properties formed reserved land and as a result cannot claim to be innocent purchasers. They submitted that the Petitioners did not defend or explain the root of their title in any way and argued that their said titles can therefore not stand. It was submitted that having shown that the Petitioners were wrongfully in use and occupation of the suit properties they were trespassers and that trespass is actionable per se and once trespass is proved as in this case, damages must be awarded. It was their submission that the 3rd Respondent has been deprived benefits arising from the suit property by the Petitioners’ acts of trespass for over 11 years and that they ought to be awarded damages. They urged this Court to award a global figure of Kshs.10,000,000.00 as general damages.
9. Reliance was placed inter alia in the cases of Judith Nekoye v Ethics and Ant-Corruption Commission ELC Case No 12 of 2020 at Bungoma, Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment), Samuel Kamere v Lands Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR, Chemey Investment Limited v Attorney General & 2 others [2018] eKLR, Satish Jagdish Pandya v Registrar of Lands, Nairobi & 4 others [2020] eKLR, Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah [2016] eKLR, Obadiah K. Macharia v Kenya Power & Lighting Company Ltd [2016] eKLR and the provisions of Article 40(6) of the Constitution of Kenya, 2010, Section 26(1)(b) of the Land Registration Act, 2012 and Order 21 Rule 13(1)(a)&(b) of the Civil Procedure Rules, 2010.
10. While quoting the cases of John Rimui Waweru & 3 others v Githunguri Constituency Ranching Co Limited & 5 others [2015] eKLR, John Mining Temoi & another v Governor of Bungoma County & 17 others [2014] eKLR, Khamala Kizito Temba & and another v the Governor Bungoma County Government & others ELC Case No. 007 of 2023 at Bungoma (unreported) the Respondents argue that the 1st and 2nd Respondents were improperly joined to the petition because they are not legal persons capable of suing or being sued, as the Petitioners sued their offices rather than the actual officeholders. They contend that these offices are not corporate or statutory entities and therefore constitute non-existent parties, making the suit against them a nullity and an abuse of court process.
11. Citing section 133 of the County Governments Act, they maintain that county officers are shielded from personal liability for acts done in good faith while performing their official duties, and that any dispute such as the enforcement notice issued under the Physical and Land Use Planning Act properly lies against the County Government of Bungoma, the 3rd Respondent, which is the legally recognized entity. Accordingly, they submit that the petition should be struck out as against the 1st and 2nd Respondents for misjoinder.
Analysis and determination.
12. At the outset, the Court notes that although a substantive Petition was filed by the Petitioners, the same was not prosecuted. Consequently, this Court is not called upon to determine the merits of the Petition or the reliefs sought therein. The Court’s mandate in this judgment is therefore confined strictly to the Cross-Petition, the declarations and consequential orders sought therein, and the evidence adduced in support thereof.
13. This court discerns that the issues for determination are;
a) Whether Land Parcel No. E. Bukusu/N. Kanduyi/882 was public land reserved for a public purpose and whether its subdivision was lawful.
b) Whether the titles held by the Petitioners are legally valid.
c) Whether the Cross-Petitioners are entitled to the reliefs sought, including cancellation of titles, reversion of the land to public use, damages, and costs.
14. The evidence tendered by the Cross-Petitioners establishes, and the Court so finds, that Land Parcel No. E. Bukusu/N. Kanduyi/882 measuring approximately 11.8 hectares was first registered on 22/05/1973 in the name of the defunct County Council of Bungoma and was expressly reserved for public use as a football ground, commonly known as Kanduyi Stadium. Evidence shows that the said title was later sub-divided to give rise to various parcels registered to different individuals.
15. The subsequent subdivision of Land Parcel No. E. Bukusu/N. Kanduyi/882 on 03/07/1997 into Parcels Nos. E. Bukusu/N. Kanduyi/2725 and 2726, and later to land parcel no. E.Bukusu/N.Kanduyi/4623-4649 giving rise to land parcel no. E.Bukusu/N.Kanduyi/6573 and 6574(herein the suit properties) registered in the joint names of the Petitioners did not, in law, alter the character or legal status of the land. The evidence on record shows that Parcel No. 882 had already been alienated and set aside for a defined public purpose, namely use as a public football ground. Once land is so reserved, it ceases to be available for private alienation unless and until the reservation is lawfully revoked in accordance with the applicable legal framework.
16. The Court reiterates that public land retains its character notwithstanding administrative acts such as subdivision, renumbering, or re-survey. Such processes are cadastral or administrative in nature and cannot, of themselves, extinguish a public trust or convert land reserved for public use into private property. To hold otherwise would permit the circumvention of constitutional and statutory safeguards protecting public land through technical alterations to land records.
17. This position is firmly anchored in law. Under Article 62(1)(a) and (d) of the Constitution, land vested in or held by a county government and land lawfully reserved for public purposes constitutes public land. Further, Article 62(4) expressly provides that public land may only be disposed of in accordance with an Act of Parliament. No evidence was tendered before this Court to demonstrate that the public purpose reservation over Land Parcel No. E. Bukusu/N. Kanduyi/882 was ever lawfully surrendered, revoked, or converted through due process.
18. Kenyan courts have consistently held that subdivision does not sanitize an illegality or change the intrinsic character of public land. It is trite that land reserved for a public purpose cannot be alienated unless the reservation is lawfully lifted, and that any purported allocation in the absence of such revocation is null and void.
19. Accordingly, the subdivision of Parcel No. E. Bukusu/N. Kanduyi/882 into the suit properties was legally ineffectual in changing the land’s public character. The resultant parcels remained impressed with the same public trust and reservation as the parent parcel, and any subsequent dealings premised on the assumption that the land had become available for private ownership were fundamentally flawed in law.
20. Having found that E. Bukusu/N. Kanduyi/882 was public land reserved for a football ground, the inevitable legal consequence is that the subdivision of the said land was illegal ab initio. Land that has already been alienated for a public purpose is not “unalienated government land” and is therefore not available for re-allocation to private persons unless the reservation is lawfully surrendered or revoked through due process. No evidence was tendered of any lawful revocation of the public reservation, approval of change of user, or compliance with the statutory regime governing alienation of public land.
21. The purported subdivision therefore offended both the constitutional framework governing public land and the statutory land regime then in force. Further, the irregular conversion of public land into private parcels constitutes fraud in law, even where specific individuals are not shown to have acted with personal deceit. In Arthi Highway Developers Ltd v West End Butchery Ltd & 6 Others [2015] eKLR, the Court of Appeal emphasized that fraud may arise from systemic abuse of public offices and processes, and that courts must look beyond the face of a title to interrogate its root.
22. Accordingly, the Court finds that the subdivision of E. Bukusu/N. Kanduyi/882 was illegal and tainted with fraud, and that all subsequent subdivisions flowing therefrom were equally unlawful. It therefore follows that the individuals who purported to sell and transfer the land to the Petitioners therefore did not hold a valid proprietary interest capable of transfer. The applicable doctrine is the well-established principle of nemo dat quod non habet that one cannot give what one does not have. A person without lawful title or authority cannot convey a valid title, regardless of the good faith of the purchaser.
23. Courts have consistently applied this doctrine in land disputes. In Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held that when the root of a title is under challenge, the proprietor must go beyond the certificate of title and demonstrate the legality of how the title was acquired. Similarly, in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, a decision often cited with approval in Kenyan jurisprudence, it was held that an act which is void is incurably bad and cannot be the foundation of any legal right.
24. Applying these principles, the Court finds that the vendors who transferred the land to the Petitioners had no valid title to pass, and the resultant titles, though formally issued, are legally impeachable.
25. This lead the court to the final issue for determination i.e whether the Petitioners should be ordered to pay damages. Notwithstanding the foregoing findings, the Court is equally mindful that the Petitioners were not the architects of the illegality. The evidence shows that they acquired the suit properties through formal conveyancing processes, were issued with certificates of title by the Land Registrar where the court was told that entries were made in the registry’s records, and remained in occupation under the genuine belief that their titles were valid.
26. This court is of the view that the Petitioners were in occupation and use of the suit properties in good faith having relied on public record and moreso since the Respondents have not proven the contrary and as such they should not be subjected to punitive sanctions. Consequently, it is this courts view that the Petitioners’ occupation cannot be characterized as willful trespass. Their entry and possession were founded on official acts of the land administration system. Consequently, while the titles may be legally untenable, the Petitioners cannot be penalized through an award of damages for unlawful occupation. The Court therefore declines the Cross-Petitioners’ prayer for damages.
27. In the end, the petition is dismissed with costs. The cross-petition is allowed in the following terms
a) A declaration is hereby issued that the suit properties, LR No. E. Bukusu/N. Kanduyi/6573 and LR No. E. Bukusu/N. Kanduyi/6574, form part of the original public land parcel LR No. E. Bukusu/N. Kanduyi/882, which had been reserved for use as a public football ground (Kanduyi Stadium).
b) A declaration is hereby issued that the Petitioners’ title deeds over LR No. E. Bukusu/N. Kanduyi/6573 and LR No. E. Bukusu/N. Kanduyi/6574 were illegally, improperly, fraudulently and irregularly acquired, consequently null and void, ineffectual to confer any right, interest or title upon the Petitioners;
c) An order is hereby issued cancelling, revoking the title deeds to the suit property LR No. E.Bukusu/N.Kanduyi/6573 and LR No. E.Bukusu/N.Kanduyi/6574 issued to and in the names of the Petitioners;
d) An order is hereby issued reverting E.Bukusu/N.Kanduyi/6573 and E.Bukusu/N.Kanduyi/6574 to the Cross Petitioner to be held in trust for the public and reserved for use as public football ground (Kanduyi Stadium) and the Land Registrar Bungoma to effect the order hereby granted;
e) A permanent injunction is hereby issued restraining the Petitioners from dealing with the properties in any manner.
f) The conservatory orders previously issued against the Respondents are hereby discharged.
g) The 3rd Respondent shall have the costs of the Cross-Petition.
28. It is so ordered.
DATED SIGNED and DELIVERED at BUNGOMA this 15th day of December, 2025.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1. Edmond Wesonga for the Respondents.
2. Petitioners/Advocate-absent.
3. Bett C/A.
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