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ELCPartially AllowedNot stated in the judgment as provided ( Kisumu Environment and Land Court suit )· [2025] KEELC 298 (KLR)

Ominde v Odongo; Odongo (Plaintiff to the Counterclaim); Ominde & 3 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 300 of 2016) [2025] KEELC 298 (KLR)

Environment and Land Court of Kenya
28 January 2025
SOS. OKONG'O
6,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title it found was fraudulently carved from Lake Victoria's protected riparian reserve, dismissing the owner's trespass suit.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant on 15th November 2016 claiming trespass on Plot Kisumu/Nyalenda "B"/1508, of which he said he was the registered proprietor, and sought a permanent injunction, a declaration of trespass and damages. The Defendant denied trespass and, by an amended defence and counter-claim of 19th May 2022, contended that he owned the abutting Plot No. 1182 which had originally enjoyed Lake Victoria lake frontage, and that Plots 1507 and 1508 had been fraudulently created from the lake riparian reserve through an unexplained re-survey of Plot No. 564 (0.15 ha) which somehow yielded parcels totalling 0.8 of a hectare, depriving his land of its frontage. He sought a declaration of illegal creation, cancellation of the register entries, amendment of the RIM, an injunction and damages. The Land Registrar, Land Surveyor and Attorney General did not participate in the counter-claim. After a full trial, a site visit on 5th March 2024 and written submissions, the court found no mutation, register extract or survey record explaining the increase in Plot No. 564's size, and held the enlargement came from the riparian reserve, which is Government land not acquirable by re-survey without allocation or consultation of neighbours. Plot No. 1508 was therefore held to have been illegally and fraudulently created; the Plaintiff's title was invalid and, lacking possession, he could not sue in trespass. The Plaintiff's suit was dismissed with costs. Judgment was entered for the Defendant on the counter-claim: a declaration that Plot No. 1508 sits on the lake riparian reserve and was illegally created; an order that the Land Registrar and Land Surveyor, Kisumu County, within 90 days, cancel the register entries and amend the RIM restoring the riparian reserve; a permanent injunction restraining the Plaintiff from interfering with the Defendant's quiet occupation of Plot No. 1182; and costs of the counter-claim. The Defendant's claim for damages failed.

Key legal issues

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01

Whether Plot No. 1508 was lawfully created and registered in the name of the Plaintiff

Holding

Plot No. 1508 was illegally and fraudulently created from Lake Victoria riparian reserve; the Plaintiff holds no valid title.

Reasoning

Plot No. 564 measured 0.15 of a hectare, yet its purported subdivision yielded parcels totalling 0.8 of a hectare. No mutation, re-survey record, extract of register or title evidenced the increase; the new parcels 'appeared from nowhere' in a later RIM. The 0.65 hectare increase was curved from the lake riparian reserve without consulting neighbouring owners, and the reserve could not be privately acquired through re-survey.

p. 9
02

Whether the Defendant trespassed on Plot No. 1508

Holding

Trespass not proved; the structure complained of lies within Plot No. 1182.

Reasoning

Satellite images and photographs showed the structure within Plot No. 1182 next to the 7-metre road traversing that parcel. The survey records of the Land Registrar and County Surveyor did not support trespass, and at the site visit Plot No. 1508 was completely under lake water. Without a valid title or possession, the Plaintiff could not sue in trespass.

p. 11
03

Whether the Defendant is entitled to the orders sought in the counter-claim

Holding

Declaratory and injunctive reliefs granted; damages refused.

Reasoning

The Defendant proved on a balance of probabilities that Plot No. 1508 was illegally and fraudulently created from the riparian reserve, taking away Plot No. 1182's lake frontage. He was therefore entitled to a declaration, cancellation of entries and amendment of the RIM, and a permanent injunction, but no case for damages was made out.

p. 11

Legal principles established

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  • A title to land can be challenged on grounds of fraud, mistake, misrepresentation, illegality, corruption or procedural infraction; the burden of impeaching a title lies on the challenger, and once established the burden shifts to the owner to show lawful and procedural acquisition.
  • A plaintiff without a valid title and without possession cannot maintain an action for trespass.
  • Riparian reserve is Government/public land which cannot be acquired through a purported re-survey but only through allocation upon application, allotment letter and compliance with conditions.

Court orders

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  1. 1.The Plaintiff's claim against the Defendant in the main suit is dismissed with costs to the Defendant
  2. 2.A declaration that the parcel of land known as Kisumu/Nyalenda “B”/1508 is situated on Lake Victoria riparian reserve and as such was illegally created
  3. 3.The Land Registrar Kisumu County and the Land Surveyor, Kisumu County shall within 90 days from the date hereof cancel all entries in the register creating Kisumu/Nyalenda “B”/1508 and shall amend the Registry Index Map for Kisumu District, Kolwa Location, Nyalenda “B” Registration Section, Diagram No.6 by deleting the said parcel of land therefrom and restoring it to its original position as lake riparian reserve
  4. 4.A permanent injunction restraining the Plaintiff in the main suit/1st Defendant in the counter-claim by himself or through his agents, servants, employees or anybody claiming through him from interfering with the Defendant's quiet occupation, use and enjoyment of the parcel of land known as Kisumu/Nyalenda “B”/1182
  5. 5.The costs of the counter-claim

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 62, 67, 162
  • Land Registration Act, 2012Sections 24, 25, 26
  • Registered Land Act, Chapter 300 Laws of Kenya (repealed)Sections 19(1), 27, 28, 143(1) and (2)
  • Evidence ActSection 107

Cases cited (2)

  • Kurshed Begum Mirza v. Jackson Kaibunga
    [2017] eKLR
  • Raila Amolo Odinga & Another v. IEBC & 2 Others
    [2017] eKLR, Presidential Election Petition No. 1 of 2017
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes); suit filed on 15th November 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ominde v Odongo; Odongo (Plaintiff to the Counterclaim); Ominde & 3 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 300 of 2016) [2025] KEELC 298 (KLR)", Case Analysis (2025). Not stated in the judgment as provided ( Kisumu Environment and Land Court suit ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/298/eng@2025-01-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.