Watibini & 2 others v Board of Management St Brigid’s Girls High School Kiminini & 2 others (Environment and Land Case 24 of 2020) [2025] KEELC 6691 (KLR)

6670, put up buildings, and had embarked on constructing a perimeter fence to hive ofi a portion of the suit land to the side of the school, allegedly claiming that it had purchased it from the deceased. 4. The plaintifis termed the sale agreement a forgery, undated, confiicting, based on no consideration, lacking any survey works, and undertaken unprocedurally. Further, the plaintifis averred that the 1st defendant was wrongfully occupying, developing, and claiming the portion. 5. The plaintifis sought: a. Declaration that the deceased was the beneficial owner of Parcel No. 6670 and is entitled to be the land transferred by the interested party. b. Declaration that the 2nd defendant did not lawfully purchase any part of L.R. No. 6670 from the deceased. c. Declaration that the 1st defendant is a trespasser to L.R. No. 6670. d. An order of eviction of the 1st defendant from L.R. No. 6670. e. Damages for trespass. 6. By an amended defence and counterclaim dated 19/6/2024, the 1st and 2nd defendants denied the plaintifis’ claim. It was averred that the 2nd defendant was a lawful and bona fide purchaser of 0.75 acres out of the suit property in 2002 from the deceased for value. Who handed over the 1st and 2nd defendants vacant possession, occupation, and use of the purchased portion in May 2008 to date? 7. The 2nd defendant, being the sponsor of the 1st defendant school, averred that it bought the suit property for the benefit and use of the 1st defendant educational institution, being a public national high school, situated in Trans Nzoia County. The defendants averred that since 2008, when they took possession, use, and occupation of the school, they have substantially made developments therein. 8. The developments as pleaded included storey buildings, classrooms for the students, and a fence, which were undertaken in full view or knowledge of the plaintifis, without any objection or interference from anyone, until the perimeter fence was completed before the filing of this suit. The defendants denied that they were trespassers onto the land as alleged or at all, more so given that the sale agreement dated 19/5/2008 between the 2nd defendant and the deceased was prepared before an advocate. 9. The defendants averred that the deceased was paid all the purchase price by way of a bankers' cheque on the strength of which he handed over vacant possession, use and occupation of the suit land since 2008, thus creating a constructive trust in favour of the defendants. 10. By way of a counterclaim, the 2nd defendant averred that as a diocese, which was split from the larger Catholic Diocese of Eldoret, is to lawfully and bona fide purchaser for value of 0.75 acres of L.R. No. 6671 from the deceased, whose estate the plaintifis represent, and being the oficial sponsor of the 1st defendant, bought the land for use and benefit of the 1st defendant which is a public national high school whose land where it stands is in the name of the 2nd defendants - the sponsor. 11. It was averred that the deceased father passed on before the completion of the transaction in its favour. Therefore, the defendants counterclaimed for: a. Declaration that the 2nd defendant is the lawful and bona fide purchaser for value of 0.75 acres out of L.R. No. 6671 from the deceased. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 2

page 2 of 10

b. An order that the plaintifis’ administrator sign all the necessary legal documents to subdivide, transfer, and register the bought suit land in favour of the 2nd defendant, in default, the Deputy Registrar of the court to execute the same. 12. In reply to the defence and a defence to the counterclaim dated 3/7/2020, the plaintifis denied the alleged purchase, terming the sale agreement as undated, unsigned, and based on a parcel of land belonging to the interested party. Further, it was averred that the deceased at the time knew that his land on the ground was L.R. No. 6670 and therefore would not have purported to sell L.R. No. 6681, which he knew beneficially belonged to the interested party. 13. The plaintifis averred that the alleged sale is doubtful because there was no survey whatsoever which was carried out in 2008 or thereafter, during the lifetime of the deceased, except the one carried out by Bainitos Ombudi Hussein in 2019 over 6670, whose report was submitted to the 1st plaintifi after the suit had been filed. 14. Equally, the plaintifis averred that the deceased could not have given the defendants’ vacant possession of an unsurveyed land, which required curving out of the sold portion and the marking of clear boundaries, which was never done. The plaintifis admitted that though the defendants had undertaken substantial developments on part of the suit land, which borders their land, the same was carried out without any colour of right or consent, of which the plaintifis had raised issues with the defendants, after which they produced the belatedly doubtful sale agreement of the land. 15. The plaintifis averred that if any developments occurred earlier without the knowledge of the deceased because the deceased did not live on the suit land or use it. The plaintifis averred that the failure by the alleged maker of the sale agreement to witness renders it curious and fatal. The plaintifis averred that it is not clear what the bankers' cheques referred to in the defence were for and who paid them to the deceased; otherwise, they could have been for difierent transactions that the deceased carried out in the law firm of Kidiavai & Co. Advocates, the copies of which have been falsely presented in this case. 16. Similarly, the plaintifis averred that if the two bankers' cheques bearing the name of the deceased, one of which was misspelt, and if at all it had originated from the 2nd defendant, nothing could have been easier than to supply evidence of the source of funds, the requisition of the cheques from the banks, and the bank account from which the cheques were drawn. 17. The plaintifis averred that the 2nd defendant has not produced minutes or resolutions to purchase land from the deceased and or produced such vouchers or bank slips to prove that the deceased had prior to making the undated sale agreement, received Kshs. 750,000/=, from the 2nd defendant or any other party for the sale of the alleged plot; otherwise, it was not possible for the 2nd defendant to possibly pay Kshs. 750,000/= to the deceased without an initial agreement and or acknowledgement of payment signed by the deceased. 18. Further, the plaintifis averred that the date that the 2nd defendant alleges that the deceased received a down payment of Kshs. 750,000/=, has not been disclosed in the purported sale agreement. The plaintifis averred that the 1st time they came to know about a surveyor ever visiting the land was when a report was filed before this court; otherwise, if a survey pursuant to the sale was ever done, then the same would not have resulted in the preparation of a report, but mutation drawings for purposes of subdivision and transfer to the purchaser. 19. The plaintifis averred that the purported undated sale, if it ever arose, related to the sale of 6 plots and a portion measuring 0.3 of a plot, which is a strange way of selling part of the suit land whose size is 2 acres. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 3

page 3 of 10

20. The plaintifis while admitting that the 2nd defendant is a sponsor of the 1st defendant, denied the alleged purchase or sale, otherwise, the 2nd defendant is cleverly attempting to save the 1st defendant from the careless, costly trespass on the suit land which abuts the 1st defendant’s land, otherwise there was no plan or arrangement whatsoever by the deceased to grant the 2nd defendant title to any part of L.R. No. 6670. 21. The plaintifis averred that if there had been any alleged sale or valid sale by the deceased, the defendants would have applied to join Kitale High Court Succession Cause No. 82 of 2011 as creditors to the estate. The plaintifis averred that the reliefs sought by the 2nd defendant are untenable since the land is agricultural, subject to the Land Control Act, hence, the sale became null and void pursuant to Section 6 thereof. 22. Further, the plaintifis averred that the reliefs sought by the 2nd defendant are ex turpi causa, as the sale agreement is in breach of the law, hence, unenforceable in law. The plaintifis termed the suit as disclosing no cause against them, as administrators of the estate whose deceased will and resulting grant bind them. 23. In reply of defence to counterclaim dated 14/7/2020, the defendants averred that the conduct of the deceased giving actual possession, use and ownership of the land in 2008 to them todate, caused them to acquire equitable rights thereon, hence created a constructive trust, that is enforceable in law, hence it would be unjust and inequitable to allow the plaintifis to retain the portion of land sold by their late father, as would defeat or violate the principles of equity in Article 10(2)(b) of the Constitution. 24. The defendants averred that the equitable doctrine of constructive trust and proprietary estoppel supersede the Land Control Act and the Law of Contract Act as modified by Section 38(2) of the Land Act, which doctrines the court under Article 159 (2) (e) of the Constitution has to apply and is bound by in interpreting any law vide Article 10(1) (b) of the Constitution. 25. The defendants averred that the plaintifis were aware and have admitted their occupation and developments on part of L.R. No. 6670 on the ground, though title deed at the time was held by the deceased, and the Ministry of Lands was aware of the mix up, hence had undertaken to correct the anomalies, to ensure that the title was in tandem with the actual land possession and occupation. The defendants averred that the suit property was not part of the Kitale HC Succession Proceedings Cause No. 82 of 2011. 26. When this matter came up for hearing on 24/2/2025, in the presence of the parties and their advocates on record, the parties by consent sought another date to attempt a possible out-of-court settlement. The court adjourned the matter to 2/7/2025 for hearing. On 2/7/2025, the plaintifis and their advocates on record failed to attend court. Efiorts to reach out via Mr. Kraido, advocate, by the defendants’ counsel, bore no fruit. In their absence, the defendants sought the dismissal of the suit for non-attendance with costs and for the amended counterclaim to be prosecuted. 27. The court, after having listed the matter during the call over earlier and waiting for the plaintifis till 10:55 a.m., proceeded to dismiss the plaintifis’ suit for non-attendance and non-prosecution. It was ordered for the prosecution of the counterclaim dated 19/6/2024. 28. Francis Murikwa testified as PW1 in the counterclaim. He relied on a witness statement dated 18/6/2020 as his evidence in chief. He told the court that he was one of the trustees of the Catholic Diocese of Kitale, the 2nd defendant, which was initially part of the larger Catholic Diocese of Eldoret, then referred to as the Prefecture Apostolic of Eldoret Trustees Registered. PW1 told the court that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 4

page 4 of 10

the 1st defendant school is sponsored by the Diocese, and that the land on which it is built is held in the name of the larger Catholic Diocese of Eldoret. 29. PW1 told the court that the suit land was bought from the late Wenslaus Watibini, for the benefit and use of the 1st defendant, a national public school drawing students from all over Kenya. PW1 told the court that the land was bought for Kshs. 1,550,000/=, a deposit as per the sale agreement dated 19/5/2008, was paid for Kshs. 750,000/= to the deceased and a balance of Kshs. 800,000/= made up of two bankers' cheques, duly paid. He said that the agreement had been signed by both Bishop Crowley and the deceased. 30. PW1 said that upon full payment in 2008, the deceased gave the defendants vacant possession, use, and occupation of the land. He produced the letter showing he is a trustee dated 18/1/2020, the sale agreement, copies of the cheque, letter dated 24/4/2008, surveyor’s report dated 18/4/2020, letter dated 1/4/2001, bundle of photos and record of creation of the Diocese as P. Exhibits. No. 1, 2, 3(a) and (b), 4(a) and (b), 5, 6, 7, 8 and 9, respectively. 31. According to PW1, Tabitha, a sister in law of the deceased, was a partner in the suit land, hence the reason that she was paid part of the purchase price as per P. Exhibits. No. 6 and 7. PW1 told the court that the school has made substantial developments on the suit land as per P. Exhibit No. 8(a), (b), (c), (d) and (e), between 2012 – 2018 with no attempt to stop the same. 32. PW1 said that the school has been on the land for over 12 years uninterruptedly by the plaintifis, especially the 1st plaintifi, who was not only a parent of the school but also used to teach there immediately after graduating from college. 33. Edward Baraza testified as PW2. He relied on a witness statement dated 24/9/2020 as his evidence-inchief. As the chairman of St. Brigid’s Primary School and BOM in 2008, PW2 told the court that the 2nd defendant bought the land for school expansion through an agreement between the late Wenslaus Watibini. He said that he was the one who negotiated the same, and minutes dated 12/4/2008, show the same, which he produced as P. Exhibit. No. 10. 34. PW2 said that the plot that they bought was exchanged with and surrendered to the 1st defendant, after clearing all the purchase price as per the bankers' cheques before the court. PW1 confirmed that Tabitha was a sister in law of the seller, possessing three plots out of the suit land, hence the reason that she was paid Kshs. 750,000/=, as per P. Exhibit No. 5, an acknowledgement of the receipt by the BOM. 35. PW2 said that the balance of Kshs. 800,000/= was paid in cash, which she acknowledged receipt of. PW2 confirmed that vacant possession took place in 2008, and later on, developments on the land were undertaken, including a perimeter fence as per P. Exhibit No. 8(a) - (e). 36. The defendants to the counterclaim did not attend the court to ventilate their reply to the defence and defence to the counterclaim, hence the court marked the same as closed. Parties were directed to put in written submissions by 30/7/2025. 37. The defendants rely on written submissions dated 19/7/2025. It is submitted that under Order 12 Rule 3(1) of the Civil Procedure Rules, the court was justified in dismissing the plaintifis’ suit for nonattendance and ordering the counterclaim to proceed as per Order 12 Rule 3(3) of the Civil Procedure Rules. 38. The defendants submit that the exhibits produced as P. Exhibits. No. 1, 2, 3(a) and (b), 4(a) and (b), 5, 6, 8(a)-(c) confirm that there was a sale of the suit land, payment of consideration, taking up of the possession and developments of the suit land namely Plot No. 6671 from the seller which land he jointly owned with his brother. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 5

page 5 of 10

39. The defendants submit that having performed part of the sale agreement by giving vacant possession in 2008, a constructive trust arose, there was a common intention and therefore, nothing in law prevents the defendants from relying on the doctrine. The defendants submit that it could be unjust and inequitable to allow the plaintifis to retain both the portion and the money, based on the case law of Willy Kimutai Kitilit -vs- Michael Kibet [2018] eKLR. 40. The defendants submit that since the defendants to the counterclaim did not testify or call any witness to support their reply to the defence and defence to the counterclaim, their testimony in support of the counterclaim remained uncontroverted. The defendants submitted that no evidence was tendered to controvert that the deceased signed the sale agreement, handed over vacant possession and hence, a constructive trust was created in the circumstances. The defendants submitted that the plaintifis did not tender any evidence of fraud, forgery, or to sustain their defence that the deceased did not sign the sale agreement. 41. The court has carefully looked at the pleadings, evidence tendered and the written submissions. The issues calling for my determination are: (1) If the plaintifis have the capacity to advance the suit on behalf of the late Wenslaus Watibini regarding the suit land. (2) If the deceased was the beneficial owner and occupier of L.R. No. 6671. (3) If the plaintifis have proved that the defendants have trespassed onto L.R. No. 6671 and caused permanent developments thereon. (4) If the plaintifis have proved that there was illegality in the alleged sale, occupation, use and development of the suit land by the defendants. (5) If the plaintifis have proved entitlement to a transfer of the suit land from the interested party. (6) If the plaintifis are entitled to reliefs (b), (c), (d), (e) and (f) of the amended plaint dated 13/5/2024. (7) If the defendants have proved justification by way of the purchase of 0.75 acres out of L.R. No. 6671 from the deceased. (8) If the defendants are entitled to the reliefs sought. 42. It is a trite law that parties are bound by their pleadings, and issues for determination fiow from the pleadings. See Raila Odinga -vs- IEBC & Others [2017] eKLR. It is also a trite law that the person who made an averment must lead evidence to prove that fact. See Gatirau Peter Munya -vs- Dicskon Mwenda Kithinji & Others [2014] eKLR. 43. The plaintifis’ case as legal representatives of the deceased is contained in the amended plaint dated 13/5/2024. It was alleged that the trespass, encroachment, occupation, use and development on the suit land are unjustified, based on an alleged illegal and unlawful sale agreement. Illegality, irregularity, and or fraud must be specifically pleaded and proved on a balance higher than in an ordinary suit. See Vijay Morjaria -vs- Nansingh Madhusingh Darbar & Another [2000] eKLR. 44. Despite taking a hearing date by consent, none of the plaintifis or their witnesses appeared before the court to tender both oral and documentary evidence to sustain the contents of the amended plaint. 45. In Ken Nyaga Mwige -vs- Austin Kiguta & Others [2015] KECA 334 [KLR], the court held that the filing of documents does not make it become part of the court record. The court said that to constitute https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 6

page 6 of 10

evidence, a document has to be produced, as an exhibit, proved under the law, after which the court has to apply its judicial mind to determine the authenticity, relevance and veracity of its content. The plaintifis' claim revolves around trespass to land by the defendants. 46. In Emfil Ltd -vs- Safaricom Ltd Civil Appeal E100 of 2022 [2023] KECA 133 1 [KLR] (18th July 2023) (Judgment), the court cited Black Laws Dictionary 10th Edition and Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition at page 428, that trespass to land or interference with possession and that mere physical presence on the land does not necessarily amount to possession suficient to bring an action for trespass. The court also cited M’Ikiara M’Mukanya & Another vs. Gilbert Kabere M’Mbijiwe (1983) KECA 121 (KLR), that trespass is a violation of the right to possession and a plaintifi must prove that he has a right to immediate and exclusive possession of land, which is difierent from ownership. 47. Further, the court cited Godfrey Julius Ndumba Mbogori & Another -vs- Nairobi City Court [2018] KECA 702 [KLR], that as soon as a person is entitled to possession, and enters in to the possession of the possessor, or gets in with the command of the lawful owner, the law immediately vests the actual possession in the person who has so entered. 48. The court said that to recover anything against an alleged trespasser or to succeed in a claim for trespass, a claimant must prove title to land and, secondly, in the absence of such title, be in actual or constructive possession of the land upon which trespass is alleged to have been committed. 49. In this suit, the plaintifis failed to attend court to ventilate the contents of the amended plaint. Failure to do so meant that the contents therein remain mere statements. That notwithstanding, the defendants had to prove justification for the alleged trespass by showing that they lawfully and procedurally acquired possession of the land from the rightful owner for value. 50. Evidence to show that the sale agreement was a forgery, illegal, and was not signed by the deceased during his lifetime has not been provided by the plaintifis. Evidence that the bankers' cheques for the purchase price drawn in the name of the deceased and his partner, one Tabitha, for the suit land were forged, the forgery was undertaken by the defendants, and that the alleged cheques did not exist, and further that the lawyer alleged to have handled the sale agreement has denied preparing or execution of by the parties to it including the deceased, has not been availed. 51. Equally, there is no evidence that the deceased had no capacity to dispose of the suit property and to hand over vacant possession to the defendants. The interested party was not called to testify that his portion of land was illegally sold to the 1st and 2nd defendant by his neighbour, the deceased. Evidence that the deceased protested to the possession, developments, and use of the land by the defendants during his lifetime is missing. 52. Exhibit. No. 2, 3(a), 5, 6, 7, and 10 were not subjected to any forensic document examination to prove that they were forgeries, fraudulently obtained, or were a misrepresentation of facts. The plaintifis, as of 19/5/2008, had no capacity to deal with the properties of the deceased, going by the grant of letters of probate of 2011. The will prepared by the deceased was allegedly made on 11/6/2008. The deceased passed on 6/6/2010, long after he had sold the land and handed over vacant possession. The deceased had also obtained the banker's cheque in his name as valuable consideration. 53. The banker's cheque from the bank statement went through on 19/5/2008. The rectified grant dated 5/2/2021 is the one that includes the suit land as forming part of the estate of the deceased; otherwise, the alleged lease had already expired. This came up following the renewal of the lease, and issuance of a certificate of title I.R. No. 265796, and the lease was registered on 2/11/2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 7

page 7 of 10

54. Upon renewal of the lease and the issuance of a rectified grant, the plaintifis appeared to be asking the court to use the rectified grant based on the will to invalidate acts done by the deceased during his lifetime or undertaken by the defendants on the land which did not bear the name of the deceased upon expiry of the lease, or after he had passed on. Acts committed by the deceased willingly, consciously, and lawfully require credible and reliable evidence to invalidate them. In the absence of such evidence, the court finds the ingredients of trespass as to the immediate right to exclusive possession as of the date of entry to the land, coupled with a fraudulent transaction to acquire possession, use, and occupation by the defendants unproven. 55. Further trespass relates to the violation of the right to own, use, and occupy. The plaintifis failed to produce any evidence that it was not the deceased who authorised the entry into, use, and occupation of the suit land by the defendants on account of a lawful transaction. Similarly, evidence of any attempt by the deceased during his lifetime to disown, refute, complain and or demand a refund of the alleged funds which found their way to his account is lacking. 56. Coming to the defendants’ defence and counterclaim, the defendants rely on the concept of constructive trust and proprietary estoppel as a basis for being on the land. 57. In Willy Kimutai Kilitil -vs- Michael Kibet [2018] KECA 573 [KLR], the court cited Macharia Mwangi Maina & Others -vs- Davidson Mwangi Kanyiri [2014] eKLR, where the court held that the appellant’s action of receiving full purchase price and putting the respondent in possession created a constructive trust in favour of the respondent, hence showing a common intention. 58. In Shah & 7 Others -vs- Mombasa Bricks & Tiles Ltd & 5 Others Petition 19 (EO20) of 2022 [2023] KESC 106 KRL (28th December 2023 (Judgment), the court said that a constructive trust was an equitable instrument serving the purpose of preventing unjust enrichment, and was a right traceable from the doctrine of equity, when a party conducted himself to deny the other party beneficial interest in the property acquired. The court said that the doctrines of equity were applicable in Kenya vide Section 3(1) of the Judicature Act and that it was one of the overriding interests or encumbrances, envisaged under Sections 25, 26 and 28 of the Land Registration Act. The court said that a constructive trust could be imported into a land sale agreement to defeat a registered title. 59. The court said that it is an intervention against unconscionable conduct, where the circumstances of the case were that the legal owner is a trustee, or where the law requires it to be imposed for the ends of justice and good conscience to be met. 60. In this suit, there is no dispute that the defendants issued bankers' cheques in favour of the deceased and his sister in law, on account of land which they had been ofiered for sale, were handed over vacant possession and later on embarked on its use, possession and development with the full knowledge and view of not only the deceased, but also the plaintifis as of the entry date. Evidence that attempts were made to eject, evict, stop, and or reclaim the land by the deceased or the plaintifis between 2008 and up to the filing of the suit is lacking. Assertion of superior right is key. 61. The defendants have pleaded in the amended defence and counterclaim dated 19/6/2024, that they were lawful and bona fide purchasers for value of part of L.R. No. 6671 measuring 0.75 acres, which they lawfully took possession of, extensively developed and have been using since 2008 and is under the utilisation by a national public school, servicing students from all over the country. 62. By way of a counterclaim, defendants reiterate the contents of the amended defence. It is averred that the deceased passed on before the process of titling was completed in favour of them. The defendants, based on the tendered oral and documentary evidence, urge the court to declare them bona fide purchasers for value. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 8

page 8 of 10

63. A bona fide purchaser for value was defined as one who has, in good faith, paid valuable consideration for property without notice of any prior adverse claim. See Dina Management Ltd -vs- County Government of Mombasa & Others [2013] eKLR. In Torino Enterprises Ltd -vs- Attorney General, Petition No 5(E006) of 2022, the court emphasized the need to undertake due diligence before one can claim to be an innocent purchaser for value. In Sehmi & Another -vs- Tarabana & Co. Ltd & Others [2025] KESE 21 [KLR] (11th April 2025) (Judgment), the court observed that the doctrine of bona fide purchaser entails three elements, namely, innocence, purchase for value and a legal estate. The court said that the element of innocence means that the purchaser acted in good faith, that the purchase for value means that consideration in money or money’s worth was paid in return for the land, and the purchaser must be in reference to a legal estate vis-a-vis an equitable interest in the suit land. 64. The evidence tendered by the defendants is that there was no contest as to the ownership of the land by the deceased on the operative date when the ofier was made and accepted, consideration discussed and paid and vacant possession handed over. The testimony of PW1, 2 and 3 and the exhibits relied upon have not been challenged. The alleged interested party has not disputed the pleadings and evidence by the defendants on the factual details on the ground that the land belonged to the deceased and his sister-in-law, the taking over of vacant possession in 2008, courtesy of the deceased, and the subsequent developments on the suit land. All these developments on the land occurred without objection from either the deceased or the interested party, or the plaintifis herein. 65. Evidence that the interested party and the plaintifis objected to or attempted to stop the occupation and the developments therein is lacking. Evidence to assert that the defendants were not innocent purchasers for value has not been tendered in support of the reply to the defence and the defence to the counterclaim. 66. Section 12 of the Land Act 2012 relates to renewal of leases. The subject lease herein expired on 1/6/2012. The deceased knew it had erroneously been issued in the name of the interested party. It is not disputed that plots No. 6671 and No. 6670 abut each other. The occupation on the ground was not disputed between the interested party and the deceased at the time he sold the portion of 0.75 acres to the defendants. The issuance of the rectified certificate of lease, lease, and a deed plan No. 466 322 on 12/5/2023 was therefore subject to the overriding interests or rights of possession, use, and occupation that had accrued in favour of the defendants herein since 2008. 67. Consequently, I find the defendants entitled to prayers (a) and (b) of the amended defence and counterclaim dated 19/6/2024. Costs of the plaint and the counterclaim to the defendants. 68. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 1ST DAY OF OCTOBER 2025. In the presence of: Court Assistant - Dennis Miss Munialo for the plaintifis present 1st plaintifi present Songole for Onyancha for 2nd defendant present Miss Chilaka for the 1st defendant absent HON. C.K. NZILI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 9

page 9 of 10

JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01 10

page 10 of 10