Ashon Sikolia Wanyonyi & 2 others v Alpesh M. Patel & 2 others [2021] KEELC 2705 (KLR)

The suit property was a resultant sub-division of NDIVISI/MUCHI/1401. The property John Ngome purported to transfer to the defendant under the consent in ELC No 9 of 2016 could only have been part of the original parcel 1401, specifically the suit property. The defendant admitted the plot adjoins the Cereals Board. No transfer documents were produced despite the consent of 16th November 2016, and no title could be registered over land already held under the plaintiffs' title of 25th July 2008.

The court accepted that orders in the 2014 judgment could not be used against the defendant since he was neither party nor agent therein, which is why interim orders had restrained the plaintiffs. However, the plaintiffs' present suit was an independent claim founded on their registered title, not on the earlier decree, so the objection did not defeat the claim.

No lease, allotment letter or sale agreement was produced; the demand notes and rate receipts were in the name of John Mweyi Ngome; and the consent in ELC No 9 of 2016 was a ploy by which Ngome purported to transfer to the defendant property belonging to the plaintiffs, being land already held under the plaintiffs' freehold title.

While acknowledging the defendant could not be evicted under the 2014 decree since he was not a party to that suit, and that an order had earlier restrained the plaintiffs, the court held the ownership question was conclusively settled: the land occupied by the defendant was the plaintiffs' registered parcel. A trespasser cannot claim injunctive or declaratory relief against the true proprietors.