Nakhungu & 4 others v Malala & 7 others (Environment and Land Case 375 of 2017) [2025] KEELC 7370 (KLR)

JUDGMENT 1. Proceedings commenced in this matter on 17th December 2009 in the High Court at Kakamega when the Plaintifis filed plaint dated the same date. The initial plaint was later replaced with amended plaint amended on 10th December 2012. Subsequently, the suit was transferred to this court. 2. The Plaintifis averred in the amended plaint that they were joint registered proprietors of land parcel number South Wanga/Lureko/185 which measured 38.8 acres, that the First Defendant was the administrator of the estate of Christopher Namunwa Ondiechi (deceased) who until his death was the registered proprietor of land parcel number South Wanga/Lureko/184 while the Fifth Defendant was the administrator of the estate of Ramadhan Wanga (deceased) who was the registered proprietor of land parcel number South Wanga/Lureko/186 which until 22nd September 2008 measured 4 acres. 3. The Plaintifis averred further that the First to the Fifth Defendants trespassed on land parcel number South Wanga/Lureko/185 as a result of which they filed Mumias Land Disputes Tribunal Claim No. 15 of 2007 whose verdict was adopted through Chief Magistrate’s Court Misc. Award No. 96 of 2008. That before implementation of the award, the First to Fifth Defendants through fraud and collusion with the Sixth and Seventh Defendants altered the size of parcel number South Wanga/Lureko/186 to read 4.0 hectares instead of 4.0 acres. That on 15th April 2009, the Sixth and Seventh Defendants hived a huge portion of the Plaintifis’ land and annexed it to parcels number South Wanga/Lureko/184 and 186. 4. Consequently, the Plaintifis sought judgment against the Defendants jointly and severally for: a. Cancellation of entry number 3 in the register in respect of Land Parcel No. S. Wanga/Lureko/186 to refiect 4.0 acres and not 4.0Ha and Land Parcel No. South Wanga/Lureko/185 be restored to 38.8 acres and the alteration made on the area map sheet 11 edition 5 be cancelled and the same be restored to refiect the position as per edition 4 and the survey carried out on 15th April, 2009 on Land Parcel No. S. Wanga/Lureko/184, 185 and 186 be cancelled. b. An order of injunction restraining the 1st to the 5th defendants either by themselves, agents, servants, employees or anybody claiming through them from trespassing, laying claim, tiling, cultivating or in any way interfering with the plaintifis’ 38.8 acres of Land Parcel No. S. Wanga/Lureko/185. c. An eviction order from Land Parcel No. S. Wanga/Lureko/185. d. Costs of this suit. e. Any other relief this Honourable Court deems fit to grant. 5. The First to Fourth Defendants filed statement of defence dated 16th February 2010. They denied the Plaintifis’ averments and prayed that the Plaintifis’ suit be dismissed with costs. 6. The Fifth Defendant filed statement of defence dated 18th January 2010. He denied the Plaintifis’ averments and stated that parcel number South Wanga/Lureko/186 was erroneously refiected as measuring 4.0 acres and that the correction to read 4.0 hectares was lawful and procedural. He prayed that the suit be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7370/eng@2025-10-29 2

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7. The First Plaintifi testified as PW1 and stated that the Plaintifis were siblings and ere entitled to land parcel number South Wanga/Lureko/185 which was family land. He added that the parcel measured 38.8 acres and that the First to the Fifth Defendants interfered with the parcel. That they had Mumias Land Disputes Tribunal Claim No. 15 of 2007 which was decided in the year 2008 with an order that the Land Registrar and District Surveyor visit the site and establish boundaries. He added that Ramadhan Wanga (deceased) was the registered proprietor of land parcel number South Wanga/ Lureko/186 which measured 4 acres as per title deed dated 30th August 1988 and certificate of oficial search dated 22nd September 2008. 8. PW1 further testified that the map was changed in the land registry without going to the ground with the result that parcel number South Wanga/Lureko/186 became 4.0 hectares after part of South Wanga/Lureko/185 was added to it. That in the 4th edition of the map parcel number South Wanga/ Lureko/185 extended from the road to River Nzoia while parcel number South Wanga/Lureko/186 did not reach the river. That in the 5th edition of the map parcel number South Wanga/Lureko/185 no longer reached the river and that the changes were done in the year 2008 after the decision of the tribunal. 9. Under cross examination and re-examination, PW1 stated that he was born in 1979 and that parcel number South Wanga/Lureko/185 was registered in 1967 and its boundaries established before his birth. That parcel number South Wanga/Lureko/186 was also registered in 1967 and its size indicated in the register as 4 hectares. He added that the parties to the suit were cousins and that the Plaintifis inherited parcel number South Wanga/Lureko/185 from their father Benedicto through succession and that he sold the parcel and no longer lived there as of the date of his testimony. He also stated that what is left of parcel number South Wanga/Lureko/185 on the ground is 20 acres and that 18 acres have gone missing. 10. Musa Ndaliro Muchelule (PW2) testified that he knew the Plaintifis and the First to Fifth Defendants and that parcel number South Wanga/Lureko/185 belonged to Benedicto Nakhungu Ondieche who leased 1 acre of it to him prior to his death. That he had possession from 1990 to 1993 when the Defendants took the portion which had been leased to him on the lower part near River Nzoia and that he was given an alternative portion on the upper part. 11. David Masila Kimauro, the Deputy Land Registrar Kakamega County, testified as PW3. He produced certified copies of registers in respect of parcels number South Wanga/Lureko/185 whose size he stated is 38.8 acres, South Wanga/Lureko/186 whose size he stated was initially 4 acres but was later corrected to read 4.0 hectares and South Wanga/Lureko/184 whose size he stated is 30.0 acres. He added that according to records held at the registry, parcels number South Wanga/Lureko/185 and South Wanga/ Lureko/184 were never resurveyed. 12. PW3 went on to testify that sometimes parcel sizes can be wrongly typed as acres instead of hectares and that whenever they go to the ground and find that the size of a parcel, for instance, measures 4 hectares as opposed to the 4 acres stated in the title, they make a correction. He stated that they did so in regard to parcel number South Wanga/Lureko/186 and added that according to records held at the registry, the correct size of South Wanga/Lureko/184 is 30.0 acres which is also the size of the said parcel on the ground. 13. Beatrice Lishenga Wamugi, a surveyor working in the ofice of District Surveyor Kakamega, testified as PW4. She stated that according to the 5th edition of the map, only parcel number South Wanga/ Lureko/184 reached the river and that parcels number South Wanga/Lureko/185 and 186 did not https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7370/eng@2025-10-29 3

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reach the river. She also stated that the 4th edition of the map that the Plaintifis were relying on was not authentic. The Plaintifis’ case was then closed. 14. Emmanuel Omoto Namunwa (DW1) stated that the Third Plaintifi was his sister in law while the rest of the Plaintifis were his cousins. That parcel number South Wanga/Lureko/184 belonged to Christopher Namunwa (deceased) who was his father and that he was born and brought up on the said parcel. He added that at one point the First Plaintifi claimed that Christopher Namunwa (deceased) had taken part of his land and that later the First Plaintifi filed Mumias Land Disputes Tribunal Claim No. 15 of 2007. That the tribunal ordered that the District Land Registrar and the District Surveyor visit the afiected parcels for purposes of placing visible marks on the boundaries. 15. DW1 further stated that before the District Land Registrar and the District Surveyor visited, the First Plaintifi went to the land with the chief, police and unknown persons and started surveying it, fixing boundaries and fencing it. He further testified that parcel number South Wanga/Lureko/184 measures 30 acres and that the land which belonged to the Plaintifi’s father did not reach River Nzoia. The First to the Fourth Defendants’ case was then closed. 16. Yusuf Atenya Wanga (DW2) testified and produced copies of documents listed as item numbers 1 to 7 in his list of documents dated 30th March 2015. He stated that the Plaintifis were his cousins and that he was substituted following death of Ramadhan Wanga Ondieche who was the original Fifth Defendant. He stated that he was born in the year 1959 and that prior to adjudication process in Lureko area, Paul Ondieche who was his grandfather was the owner of land measuring approximately 80 acres and had four sons including Benedicto Nakhungu Ondieche and Ramadhan Wanga Ondieche. That in 1961 after his grandfather passed away, his father and uncles planted boundaries sharing the estate of his grandfather and that during adjudication in 1967, the boundaries were confirmed as they were on the ground. 17. DW2 further stated that his father and uncles lived harmoniously until the first three died and that in December 2007, they received summons to appear before the Mumias Land Disputes Tribunal in a case filed by the First Plaintifi herein. That the tribunal ordered that the District Land Registrar and District Surveyor visit parcels number South Wanga/Lureko/184, 185 and 186 and establish boundaries and that the decision of the tribunal was adopted through Chief Magistrate’s Court Misc. Award No. 96 of 2008. 18. DW2 went on to state that the First Plaintifi herein engaged the services of a private surveyor and the chief who went to the ground and hived ofi 7 acres from DW2’s father’s parcel number South Wanga/Lureko/186 and added it to the First Plaintifi’s South Wanga/Lureko/185. That the District Land Registrar and District Surveyor visited the parcels on 15th April 2009 and established that there was encroachment on parcel number South Wanga/Lureko/186. He added that the First Plaintifi ignored the District Surveyor’s report and continued to occupy the land and even sold portions of it three difierent buyers. DW2 further testified that the map that the Plaintifis were relying on was not authentic, that the original boundaries remained intact since 1967 and that their parents did not have any disputes over the land. 19. Geofirey Onyiko Edasi (DW3), a land surveyor working at the county survey ofice Kakamega stated that Beatrice Lishenga Wamugi (PW4) was his supervisor and that the county survey ofice Kakamega wrote a letter dated 19th September 2008 to the Land Registrar asking him to correct the acreage of parcel number South Wanga/Lureko/186 to read 4.0 hectares as opposed to 4.0 acres. He confirmed that the correct size of the said parcel is 4.0 hectares. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7370/eng@2025-10-29 4

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20. The Fifth Defendant’s case was then closed and another date given for hearing of the Sixth to Eighth Defendants’ case. The said Defendants did not attend court on the date appointed and their cases were thus closed. 21. Directions for filing and exchange of written submissions were thereafter given. The Plaintifis filed submissions dated 10th December 2024, the First to Fourth Defendants filed submissions dated 24th February 2025 while the Fifth Defendant filed submissions dated 10th December 2024. The Sixth to Eighth Defendants did not file any submissions. 22. I have carefully considered the pleadings, the evidence and the submissions. The issues that arise for determination are whether fraud and collusion have been established and whether the reliefs sought should issue. 23. Both fraud and collusion are serious allegations with criminal ramifications. A party alleging fraud and its related aspect of collusion must plead it, particularise it, and strictly prove it to standard higher than the usual one in civil cases of proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. See Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR. 24. The plaintifis’ case is that the First to Fifth Defendants through fraud and collusion with the rest of the Defendants hived ofi a huge portion of their parcel number South Wanga/Lureko/185 by altering the size of parcel number South Wanga/Lureko/186 to read 4.0 hectares instead of 4.0 acres. Their complaint is essentially that the Defendants took part of their parcel number South Wanga/ Lureko/185 and added it to parcel number South Wanga/Lureko/186. 25. The Plaintifis have built their case on their own observations as to where the boundaries were and on two maps that they produced: the 4th edition and the 5th edition. According to them, the true extent and scope of parcel number South Wanga/Lureko/185 is as captured in the 4th edition of the map. They maintain that the parcel extended from the road to River Nzoia which they insist is the true size of their land. I note however that the Plaintifis’ own witness Beatrice Lishenga Wamugi, a surveyor working in the ofice of District Surveyor Kakamega who testified as PW4, disowned the said 4th edition of the map on which the Plaintifis have built their case. 26. I further note that the Plaintifis’ other witness, the Deputy Land Registrar Kakamega County who testified as PW3 stated that the size of parcel number South Wanga/Lureko/186 was properly corrected to read 4.0 hectares. PW3’s position is corroborated by the testimony of DW3, a land surveyor working at the county survey ofice Kakamega who testified that the correction was efiected when his ofice wrote a letter dated 19th September 2008 to the Land Registrar asking him to correct the acreage of the said parcel to read 4.0 hectares as opposed to 4.0 acres. 27. The Plaintifis contend that the correct size of their parcel number South Wanga/Lureko/185 should be 38.8 acres and that the size was reduced to 20 acres when the size of parcel number South Wanga/ Lureko/186 was corrected to read 4.0 hectares. I have perused the certified copy of the register of South Wanga/Lureko/185 which the First Plaintifi produced as well as that which the Land Registrar produced. Both state that the size of the said parcel is 38.8 acres. The copy which the Land Registrar produced was certified as a true copy of the original on 19th September 2022. It does not show any change in the size of the parcel and is conclusive that the size has remained static at 38.8 acres since 9th January 1967 when the register was opened. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7370/eng@2025-10-29 5

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28. I have analysed the Plaintifis’ claim that what is left of parcel number South Wanga/Lureko/185 on the ground is 20 acres and that 18 acres have gone missing. Mathematically, 4 hectares translates to 9.884 acres. Assuming that parcel number South Wanga/Lureko/186 gained any land due to the correction in its size, the net gain can only be 5.884 acres since the parcel, according to the Plaintifis, measured 4 acres prior to the correction. The Plaintifis claim that they lost 18 acres. The unanswered question is: where did the remaining 12.116 acres that the Plaintifis claim that they lost go? The Plaintifis have not answered that question. 29. The Plaintifis have not proved any change in the size of parcel number South Wanga/Lureko/185. The mere fact that the size of parcel number South Wanga/Lureko/186 was corrected in its register is no proof or guarantee that the size of parcel number South Wanga/Lureko/185 was reduced. What the Plaintifis have sought to do is to invite the court to infer fraud from the correction of the size of parcel number South Wanga/Lureko/186. It is not permissible to infer fraud. Having opted to make the grave allegations of fraud and collusion the foundation of their case, the Plaintifis were duty bound to strictly establish those claims. 30. I find that the Plaintifis have not proved fraud and collusion to the required standard. Equally, the allegations of trespass are not established. I find no merit in the Plaintifis’ case, and the reliefs which they seek cannot therefore issue. 31. In view of the foregoing discourse, I dismiss the Plaintifis’ case. Considering the family relationship between the parties, I make no order as to costs. DATED, SIGNED, AND DELIVERED THROUGH MICROSOFT TEAMS, AT NYAMIRA, THIS 29TH DAY OF OCTOBER 2025. D. O. OHUNGO JUDGE Delivered in open court in the presence of: No appearance by the Plaintifis No appearance by the 1st to 4th Defendants No appearance by the 5th Defendant No appearance by for the 6th to 8th Defendants Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7370/eng@2025-10-29 6

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