VIOLET MERAB SONGA AND EUDEN HARRY SONGA AND 1 Others VS TATU MBASU AND MATHEW SAMAKI AND 1 Others

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1. Litigation in these consolidated cases commenced on 28^th May 2009 when then then Kenya Anti-Corruption Commission filed Plaint dated 27^th May 2009. The case was registered as HCCC No. 70 of 2009 (Kakamega) and was later transferred to this Court whereupon it became ELCC No. 154 of 2015 (Kakamega). Pursuant to Article 79 of the Constitution of Kenya 2010 and Section 3 of the Ethics and Anti-Corruption Commission Act, the Ethics and Anti-Corruption Commission replaced the Kenya Anti-Corruption Commission as the Plaintiff.
2. The Plaint dated 27^th May 2009 underwent several amendments, resting with Further Amended Plaint amended on 7^th May 2019. The Plaintiff averred in the Further Amended Plaint that the parcel of land measuring 0.08 hectares and known as Land Reference Number Kakamega Town Block III/270 (the suit property) was illegally excised from land reserved for public purposes in particular for establishment of residential houses for civil servants and other Government officers. That the 5^th Defendant purported to lease the suit property to the 1^st Defendant and that the suit property was then registered in the name of the 1^st Defendant on 28^th September 2007 who in turn transferred it to the 2^nd and 3^rd Defendants on 2^nd February 2009.
3. The Plaintiff went on to aver that the allocation, survey and creation of the suit property by the 4^th Defendant and the subsequent transfers and titles were undertaken fraudulently, unlawfully and corruptly and were null and void hence incapable of conferring any title in the suit property. Consequently, the Plaintiff prayed for judgment against the Defendants jointly and severally for:
4. A declaration that the alienation of Land Reference Number Kakamega Town Block III/270 by the 4^th and 5^th Defendants and subsequent registration and issuance of Certificate of lease to the 1^st Defendant of the said parcel of land was irregular, fraudulent, and illegal consequently null and void.

a) (i) General damages against the 4^th and 5^th Defendants.

1. A declaration that the transfer of Land Reference Number Kakamega Town Block III/270 by the 1^st Defendant to the 2^nd and 3^rd Defendants conferred no estate, interest or right on the 2^nd and 3^rd Defendants and the same is null and void.
2. An order directing to the Land Registrar, Kakamega to rectify the register by cancellation of the Certificate of Lease and all entries on the land register in respect of A declaration that the alienation of Land Reference Number Kakamega Town Block III/270.
3. An order of permanent injunction restraining the 1^st, 2^nd and 3^rd Defendants, their agents, servants, assigns or any one of them from leasing, transferring, charging, entering or taking possession and/or dealing in any other manner howsoever from dealing with a declaration that the alienation of Land Reference Number Kakamega Town Block III/270 other than by transfer, delivery up or surrender of the same to the Government of Kenya.
4. An order of permanent injunction restraining the 6^th, 7^th and 8^th Defendants, their agents, servants, assigns or any one of them from claiming adverse possession against the 2^nd and 3^rd Defendants and/or dealing in any other manner howsoever from dealing with a declaration that the alienation of Land Reference Number Kakamega Town Block III/270 other than by transfer, delivery up or surrender of the same to the Government of Kenya.
5. An order of eviction against the 6^th, 7^th and 8^th Defendants, their agents, servants, assigns or any one of them from claiming adverse possession against the 2^nd and 3^rd Defendants and/or dealing in any other manner howsoever from dealing with a declaration that the alienation of Land Reference Number Kakamega Town Block III/270 other than by transfer, delivery up or surrender of the same to the Government of Kenya.
6. Costs and incidental to this suit.
7. Interest on (e) above at Court rates.
8. Any other or further relief the Court may deem fit and just to grant.
9. Separately, on 8^th June 2009, the 6^th to 8^th Defendants herein filed unsigned Originating Summons (OS) dated 5^th June 2009 against the 2^nd and 3^rd Defendants herein. The OS was registered as Kakamega HCCC No. 95 of 2009 (OS) and was later transferred to this Court whereupon it became ELCC No. 239 of 2016 (Kakamega). The 6^th to 8^th Defendants filed the OS in their capacities as administrators and beneficiaries of the estate of Dan Oyallo Songa (deceased) and sought title by adverse possession to a portion of the parcel of land known as Kakamega/Town Block III/270.
10. The two files were consolidated through an order made on 23^rd May 2018. The matter then proceeded to hearing.
11. Geoffrey Nyangi (PW1) and stated that he was a Director in the Ministry of Housing. That by virtue of his position, he was responsible for all Government housing units in Western Province including Kakamega and that the suit property was located a short distance from his office opposite Golf Hotel. That records held by his office concerning the suit property indicated that the suit property is Government land on which stood a Government house maintained by his department. He added that his office was still collecting rent in respect of the houses which were meant for occupation by senior Government Officials and were designated as either MG (medium grade) or HG (high grade).
12. PW1 added that the houses had since construction been solely in the custody of the Government of Kenya and were developed by the Government developed in line with the approved Development Plan (DP) for Kakamega Town. He also stated that the boundaries were clearly marked by barbed wire fence and a hedge in some parts and that the lease issued in respect of the suit property was in respect of land illegally excised from the land reserved and developed as a medium grade residence for Government officials. That from its physical location, it is not in doubt that the suit property belongs to the Government and that as of the date of his statement the property was occupied by a Government official and managed by his department.
13. PW1 went on to testify that the government house on the suit property was MG55 which was constructed in 1969. He produced copies of the Development Plan of the area, Registry Index Map, the survey plan map, building register, payslip of Jescah Mbaisi Murenga who he stated was the civil servant in occupation of the house, a letter dated 22^nd September 2020 from the County Director of Housing authorising a contractor to repair sewerage drainage in the house, local service order issued to the contractor and a letter dated 30^th April 2020 from the County Director of Housing.
14. Barnabas Wakhungu Nyongesa (PW2) stated that that he was employed by the Ministry of Housing as Senior Estate Management Assistant. He adopted his witness statement and testified the suit property was curved out of reserved government land on which stood house number MG55 which was constructed in 1969. That as of the date of his testimony, there was a civil servant in occupation of the house who was paying rent of KShs 8,000. He added that when he last visited the suit property in the year 2017 he found a foundation of a building on it and later learnt that the suit property was allocated to the 1^st Defendant. He also stated that there were other government houses around the suit property.
15. Dedan Ochieng Okwama (PW3) stated that he was an investigator employed by the Plaintiff and part of a team that investigated the suit property. He adopted his witness statement and stated that the suit property was hived off land within Milimani area in Kakamega which the Government of Kenya had set aside for development of residential houses for civil servants and other Government officials. That the Government had built residential houses on the land for use by civil servants and that they were still occupied by public servants.
16. PW3 further stated that the Government developed the residential houses as per the approved Development Plan (PD) for Kakamega Town and that the boundaries of the parcels were clearly marked and defined and each house together with its compound is clearly identifiable and marked in the development plan, maps and plans. He added that the houses were either Medium Grade (MG) or High Grade (HG) and the investigations established that the suit property was excised from land reserved by the government for residences of government employees. That the suit property lies between two lines of Government Houses that are adjacent to each other, to wit Houses KAKA/HOU/MG/53-55 on the lower side and KAKA/HOU/LG/146 A&B; KAKA/HOU/HG36-40; KAKA/HOU/MG/61 and KAKA/HOU/HG/1 on the upper side.
17. He also stated that the investigations established that the address used in the Letter of Offer was the postal address of the Kakamega Land Registry and that no lease signed by the Commissioner of Lands could be traced at the Land Registry. That a visit to the County Council of Kakamega revealed that the Council was not privy to the alienation of the suit property since there was no Council Resolution to support the purported alienation. He further stated that from the physical location of the suit property, it was common knowledge that the suit property was public land since on it stood an occupied Government residential house. That, consequently, the land was in use for public purpose and was not available for alienation to the 1^st Defendant or to anyone else.
18. The Plaintiff’s case was thereafter closed.
19. On 5^th October 2022, a copy of certificate of death showing that the 8^th Defendant passed away on 27^th January 2017 was availed before the Court. Since there had been no substitution, the Court marked the case her abated. The matter was then scheduled for defence hearing on 6^th December 2022. Come 6^th December 2022, there was no appearance by the 1^st Defendant despite evidence of service being availed. Consequently, the 1^st Defendant’s case was closed without any evidence being tendered by him.
20. Thereafter, the 2^nd Defendant testified as DW1 and adopted his Replying Affidavit which he filed on 19^th June 2009 in Kakamega HCCC No. 95 of 2009 (OS) and his witness statement which he filed in the same case on 20^th March 2015. He further produced copies of the documents listed as item numbers (a) to (f) in his list of documents dated 2^nd August 2010 as well as copies of letter of consent dated 16^th January 2009 and clearance certificate dated 20^th January 2009.
21. The 2^nd Defendant stated that he purchased the suit property from the 1^st Defendant on 16^th January 2009 and subsequently on 2^nd February 2009 he was registered jointly with the 3^rd Defendant as lessees and a certificate of lease issued to them. That the 1^st Defendant was registered as lessee on 9^th October 2007 and that the lessor was the County Council of Kakamega and not the Government of Kenya.
22. The 2^nd Defendant went on to testify that he conducted due diligence prior to entering into the sale agreement dated 16^th January 2009 and that he did not ask the 1^st Defendant if he had any letter of allotment. That he did not know who owned the suit property prior to the 1^st Defendant and that he took possession around 3^rd February 2009, as soon as title was issued in his favour.
23. David Masila Kimauro (DW2), a Land Registrar stationed at Kakamega Land Registry produced a certified copy of the white card or the register in respect of the suit property and stated that it shows that the 2^nd and 3^rd Defendants were registered as leasehold proprietors on 2^nd February 2009. He added that pursuant to entry number 6 dated 9^th November 2011, a restriction was registered in favour of the Ministry of Housing which was claiming ownership by the government and that the register showed the County Council of Kakamega as lessor.
24. Peter Nyongesa Wafula (DW3), the Regional Surveyor Western Region testified that he was familiar with Block III which in Milimani Kakamega and that most of the said block was planned for government housing. He could not however tell if the suit property was part of government land.
25. Next, Titus Otieno Ojwang (DW4), took the stand. He stated that as of the date of his testimony he was surveyor working with the Ministry of Lands and based in Busia County. That in the year 2009, while working with Plan B Consultants as an Approved Assistant, upon being instructed by the 2^nd Defendant to re-establish the boundaries of the suit property, he went to the ground and prepared a report dated 20^th February 2009 which had been produced by DW1.That he established that there was encroachment on the suit property on the part of plot number Kakamega Block III/94. Upon cross-examination, he stated that he was not a licensed surveyor as of the date of the report.
26. The 2^nd and 3^rd Defendants’ case was then closed. The 4^th and 5^th Defendants neither attended the hearings nor offered any evidence. Similarly, Counsel for the 6^th and 7^th Defendants told the Court that his clients’ case had been overtaken by events and that his clients did not have any witnesses to call or any evidence to offer. Consequently, their case was closed.
27. Directions were then given that parties file and exchange written submissions. The Plaintiff filed submissions dated 12^th November 2024, the 2^nd and 3^rd Defendants filed submissions dated 28^th May 2025 while the 6^th and 7^th Defendants filed submissions dated 15^th May 2025. The 1^st, 4^th and 5^th Defendants did not file any submissions.
28. I have carefully considered the parties’ pleadings, evidence and submissions. The issues that emerge for determination are whether the 2^nd and 3^rd Defendants have a valid title to the suit property, whether adverse possession has been established and whether the reliefs sought are available.
29. There is no dispute that the 2^nd and 3^rd Defendants are jointly registered as proprietors of a leasehold title in respect of the suit property for a term of 99 years from 1^st August 1996. A perusal of the register of the suit property shows that they were registered as such on 2^nd February 2009 and that a certificate of lease was issued to them on 3^rd February 2009. It is further not in dispute that they obtained title by way of transfer from the 1^st Defendant who was registered proprietor of the leasehold title from 9^th October 2007 to 2^nd February 2009.
30. The right to property is a matter that is firmly protected in law. Article 40 of the Constitution stipulates that every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. It bars the State from depriving a person of property of any description or of any interest in property unless the conditions stated therein are satisfied. Nevertheless, in line with Article 40 (6), the protection afforded by the Constitution does not extend to any property that has been found to have been unlawfully acquired.
31. Further protection of the right to property, with a focus on landed property, is secured through Section 24 of the Land Registration Act which provides as follows:

Subject to this Act—

(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.

1. Section 25 of the Land Registration Act is explicit that rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in the Act, and shall be held by the proprietor free from all other interests and claims whatsoever, but only subject to the encumbrances and restrictions shown in the register and the overriding interests specified in the Act.
2. Additionally, Section 26 (1) of the Land Registration Act provides as follows:

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, un-procedurally or through a corrupt scheme.

1. In view of the foregoing, the grounds on which a title can be nullified are fraud or misrepresentation to which the registered proprietor is proved to be a party and where it is shown that the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.
2. The Plaintiff’s case is that the suit property was illegally excised from land reserved for public purposes and that consequently, the 2^nd and 3^rd Defendants have no valid title since the land was not available for alienation in favour of the 1^st Defendant and onward transfer to the 2^nd and 3^rd Defendants.
3. The 2^nd Defendant testified that he purchased the suit property from the 1^st Defendant on 16^th January 2009 after which it was transferred to him and the 3^rd Defendant. Among the documents that he produced are a lease dated 7^th August 2006 signed by the 5^th Defendant the Commissioner of Lands on behalf of the Kakamega County Council. It is the said lease that resulted in the 1^st Defendant’s title upon registration. The Kakamega County Council is the predecessor of the County Government of Kakamega as established pursuant to Article 176 of the Constitution and the County Governments Act.
4. To the extent that the Kakamega County Council or its successor the County Government of Kakamega is the lessor, it is incontestable that the suit property was initially public land. The only question would be whether it was unalienated public land at the point the 1^st Defendant obtained title. If it were alienated public land then it could lawfully transition to proprietorship by way of a leasehold interest in favour of the 1^st Defendant. If on the other hand it was unalienated public land, there was a specific procedure for lawful alienation of public land.
5. There is no dispute that the suit property is located within Kakamega Town Block III. The Regional Surveyor Western Region who testified as a defence witness stated that he was familiar with the block and that most of it was planned for government housing. He further confirmed that the development plan which the Plaintiff produced was prepared in August 1972 and that it did not show the suit property since the suit property was curved out and created later. All that corroborates the Plaintiff’s case that the suit properly was hived off land reserved for government housing.
6. Additionally, I note that the Plaintiff adduced specific evidence that the suit property is on land that was part of the compound of a government building serialised as  house number MG55 and further that the suit property lies between two lines of Government Houses that are adjacent to each other. In those circumstances, it would be for the 1^st to 3^rd Defendants to explain how they located themselves right in the middle of a government residential area. They did not offer any explanation. I am in the circumstances satisfied that the suit property was unalienated public land.
7. The procedure for allocation of unalienated public land required that the first step be planning through preparation and issuance on an approved Part Development Plan (PDP) followed by surveying. Although none of the parties produced a letter of allotment, I note that on 9^th October 2007 when the lease in favour of the 1^st Defendant was registered, the Government Lands Act (repealed) was in force. Section 9 of the Act gave the Commissioner of Lands power of disposal of land within townships. The term “township” was defined at Section 2 of the Act to mean “a township, a municipality or an area reserved for a township.” Kakamega Town Block III which is located within Milimani area of Kakamega fell within the definition of “township.”
8. Section 9 of the Government Lands Act (repealed) provided as follows:

The Commissioner may cause any portion of a township which is not required for public purposes to be divided into plots suitable for the erection of buildings for business or residential purposes, and such plots may from time to time be disposed of in the prescribed manner.

1. The procedure for the allocation of unalienated government land has been the subject of many judicial determinations. In Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court discussed the subject thus:

104. The procedure for the allocation of unalienated land is laid out by the Environment and Land Court in Nelson Kazungu Chai & 9 others v Pwani University [2014] eKLR as follows:“…It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister for lands before any un-alienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved PDP is then issued to the allotees.

131. It is only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey can be conducted for the purpose of issuance of a certificate of lease. This procedural requirement was confirmed by the surveyor, PW3. The process was also reinstated in the case of African Line Transport Co Ltd v Attorney General, Mombasa HCCC No 276 of 2013 where Njagi J held as follows: “Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a definite number. These are then taken to the department of survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot 132. A part development plan (PDP) can only be prepared in respect to Government land that has not been alienated or surveyed…”

105.This process is restated in African Line Transport Co Ltd v Attorney General, Mombasa, HCCC No 276 of 2003 [2007] eKLR where it was held that planning comes first, then surveying. A letter of allotment is invariably accompanied by a PDP with a definite number, which would then be taken to the Department of Survey for surveying. Thereafter, it is then referred to the Director of Surveys for authentication and approval. It is after that process that a land reference number is issued in respect of the plot.

1. The 1^st to 3^rd Defendants neither produced an approved PDP nor a letter of allotment. Equally, they did not produce any evidence of payment of stand premium and other related charges to the government or evidence of terms of allotment followed by general compliance with such terms. In the absence of an approved PDP, the 1^st Defendant could not lawfully obtain title in respect of unalienated public land.
2. As the courts have severally restated, title to land is the end product of a process. Even where it results from a letter of allotment, the allottee has to demonstrate compliance with the law and the terms of the offer as well as the procedure for obtaining title to public land. See Wreck Motor Enterprises v Commissioner of Lands & 3 others [1997] eKLR.
3. In Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment), the Supreme Court held that the courts cannot close their eyes to irregularities attendant to an allocation of public land. I am persuaded that the 1^st Defendant did not obtain a valid title to the suit property and could not pass any valid title.
4. The 2^nd and 3^rd Defendants have argued that they are innocent purchasers. The law is however explicit that the doctrine of innocent purchaser for value without notice does not protect a purchaser of an illegally or irregularly allocated public land. That is the essence of Article 40 (6) of the Constitution. The Supreme Court affirmed the position in Sehmi & another v Tarabana Company Limited & 5 others (supra) thus:

In view of this Court’s pronouncement in Dina Management Limited (supra), the answer as to whether the doctrine of innocent purchaser for value without notice protects a purchaser of an illegally or irregularly allocated title to public land lies squarely in the negative. We hasten to add that such a transaction cannot attract the protection of equity because “the latter follows the law”. In this regard, two critical elements of the doctrine would be missing because, first, the purchaser must have purchased “ a legal estate”, and secondly, such purchase must have been without “notice”. Since the holder of an illegally allocated title cannot confer a valid title upon a third party, there would be no “legal estate” to be purchased in the first place. Similarly, the absence of “notice” is in reference to the existence of “an equitable interest” in the land and not “the incidence of illegality or irregularity of the title” in question. Therefore, there can be no protectable “purchaser of an illegal title without notice of such illegality”. In other words, a purchaser will only be regarded as bona fide if he buys property in good faith without notice of any defect or claims against the title. So that if the title in question is illegal or obtained through unlawful means, the purchaser cannot claim protection even if he was not aware of the illegality.

1. The short answer is that the 2^nd and 3^rd Defendants have no refuge under the doctrine of innocent purchaser for value without notice. Their title is as invalid as the 1^st Defendant’s title.
2. I now turn to the issue of whether the 6^th to the 8^th Defendants have established adverse possession. Once again, the law provides a ready answer. The foundation of adverse possession is found at Section 7 of the Limitations of Actions Act which provides that an action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued. However, pursuant to Section 41 of the Limitation of Actions Act, “Government land or land otherwise enjoyed by the Government” is precluded from acquisition by adverse possession. That position has severally been restated by the courts. See Kennedy Nyamumbo Sese v Settlement Fund Trustees & 2 others [2017] eKLR and Kuria Kiarie & 2 others v Sammy Magera [2018] KECA 467 (KLR).
3. Having held, as I have done above, that the suit property remains public land, Section 41 of the Limitation of Actions Act precludes the 6^th to the 8^th Defendants from obtaining title to any portion of it by adverse possession. In any case, the 6^th and 7^th Defendants argued in their submissions that the case is overtaken by events due to demolition. In doing so, they abandoned their adverse possession claim.
4. In view of the foregoing, I find merit in the Plaintiff’s case. I will however not grant any general damages since the Plaintiff neither led evidence on the issue nor made submissions to form a foundation for such an award.
5. I therefore enter judgment in favour of the Plaintiff and make the following orders:
6. A declaration is hereby made that the alienation of Land Reference Number Kakamega Town Block III/270 by the 4^th and 5^th Defendants and subsequent registration and issuance of Certificate of lease to the 1^st Defendant of the said parcel of land was irregular and illegal and consequently null and void.
7. A declaration is hereby made that the transfer of Land Reference Number Kakamega Town Block III/270 by the 1^st Defendant to the 2^nd and 3^rd Defendants conferred no estate, interest or right on the 2^nd and 3^rd Defendants and the same is null and void.
8. An order is hereby issued directing the Land Registrar, Kakamega to rectify the register by cancellation of the Certificate of Lease and all entries on the land register in respect of Land Reference Number Kakamega Town Block III/270.
9. An order of permanent injunction is hereby issued restraining the 1^st, 2^nd and 3^rd Defendants, their agents, servants and assigns from leasing, transferring, charging, entering or taking possession and/or dealing in any other manner howsoever with Land Reference Number Kakamega Town Block III/270 other than by transfer, delivery up or surrender of the same to the Government of Kenya.
10. The Plaintiff shall have costs of this suit and interest thereon. The 2^nd, 3^rd, 6^th and 7^th Defendants shall bear the said costs.
11. I do not impose any costs against the 1^st, 4^th and 5^th Defendants since they did not resist the Plaintiff’s case.

Dated, signed, and delivered through Microsoft Teams, at Nyamira, this 23^rd day of September 2025.

Delivered in open court in the presence of:

Ms Omari for the Plaintiff

No appearance for the 1^st, 4^th and 5^th Defendants

No appearance for the 2^nd and 3^rd Defendants

Mr Lubulellah for the 6^th to 8^th Defendants

Court Assistant: B Kerubo

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