Sigunga v County Land Registrar, Busia County & 2 others; County Government of Busia & another (Interested Parties) (Environment and Land Petition E003 of 2024) [2025] KEELC 8151 (KLR)

were not complied with and by 25th March 2025, Mr Ashioya for the Petitioner was still seeking time to file an amended Petition together with submission to the Motion. As at the time of this ruling, no amended Petition has been filed. 2. By the said Notice of Motion Edwin Dennis Sigunga (the Petitioner) seeks the following orders against the Land Registrar, The Land Adjudication & Settlement Oficer Busia and The County Surveyor Busia (the 1st, 2nd and 3rd Respondents respectively). 1. Spent 2. Pending hearing and determination of this application and the suit, this Honourable Court be pleased to direct the 1st, 2nd and 3rd Respondents to cause a report to be presented to this Court touching on – a. What were the boundaries set out on or about 1st January 1965 by the Land Adjudication Oficer – Western Region declaring the entire Marachi location adjudication section. b. Whether compilation and collection of records of existing rights were even undertaken in i. Bujumba Adjudication Section. ii. Bumala Adjudication Section. c. If the answer to the above question is in the afirmative, then was a Notice of completion of Record of existing rights over the two Adjudication Sections ever published as was required under cap 284 Laws of Kenya and where are the records? d. What is the status or current activities of the suit land comprising of the Petitioner’s land? 3. Pending hearing and determination of this application and suit an order do issue compelling the 1st, 2nd and 3rd Respondents or their appointed agents on the hearing dates to produce all the adjudication records, maps, demarcation books, green cards and all other relevant document sin respect of parcel of lands No Marachi/Bujumba/9, Marachi/Bujumba/10 and Marachi/ Bujumba/13. 4. Pending hearing and determination of this application and suit, an order do issue directing the oficials hereinabove mentioned to file with this Court and serve copies of the documents referred to in prayers (2) and 93) above upon the Petitioner. 5. The costs of this application be in the cause. 3. The Motion is premised on the grounds set out therein and supported by the Petitioner’s afidavit of even date. 4. The gravamen of the Motion is that the Petitioner is the owner of the land parcel No Marachi/ Bujumba/10 which he inherited from his late father Dickson Manyala while the land parcel No Marachi/Bujumba/9 and which is parallel to it belonged to his late uncle Anderea Erima Mukokwe. That before the completion of the adjudication of Bumala Section, the Petitioner’s father and uncle https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8151/eng@2025-11-26 2

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each hived ofi half acre plots from their respective parcels of land which they then donated to the then Busia County Council for use as markets. However, the traders did not pay the expected rates to the council which abandoned the idea of a market and so the land reverted back to the Petitioner’s father and uncle who had donated it. The Petitioner and his family have since then been in constructive possession and occupation of the same. 5. In 2020, the Petitioner discovered that the above parcels of land and which had been donated for use as a market had been allocated a new number being Marachi/Bujumba/13 and allocated to the Estate of Jacktone Were Okhungo alias Were Okhungo the 2nd Interested Party whose Administrator is Mitchell Parakenya Haemba Ogengo following orders in Busia Chief Magistrates Court Succession Cause No 413 of 2020. That was done despite the Petitioner’s objection that infact the land parcel No Marachi/Bujumba/13 was three (3) blocks away from the land parcel which belonged to Jacktone Were Okhungo alias Were Okhungo. It is the Petitioner’s case that this was done fraudulently and with the connivance of one George Ogengo a District Land Registrar and nephew of the said Jactone Were Okhungo alias Were Okhungo. This has come to the attention of the Petitioner vide the Land Adjudication/Settlement Oficer’s report dated 18th August 2020. It is the Petitioner’s case that fraud was committed by the 1st and 2nd Respondents to ensure that the records relating to the land parcel No Marachi/Bujumba/13 are not availed despite writing to the Land Registries in Kakamega and Siaya. 6. It is the Petitioner’s case that he has a valid claim with regard to the land parcels No Marachi/ Bujumba/9 and 10 now registered as No Marachi/Bujumba/13 hence this Motion and the Petition herein. 7. Notwithstanding the directions issued by Cherono J on 26th June 2024 and extended by me on 18th September 2024, neither of the Respondents filed any response or submissions to the Motion. 8. However, the County Government Of Busia the 1st Interested Party and successor of the Busia County Council filed a response dated 6th November 2024 and signed by Mabachi Stephen on behalf of the 1st Interested Party. It reads “1st Interested Party’s Response to the Petition”. The Estate of Jacktone Were Okhungo alias Were Okhungo was not represented despite my directions that the Estate Administrator be served. 9. I do not consider the document headed as “1st Interested Party’s Response to the Petition” and signed by Mr Mabachi Stephen on behalf of the County Attorney Busia County Government to be a response to either the Petition nor the Motion subject to this ruling. This is because Order 51 Rule 14 (1) of the Civil Procedure Rules provides that: 14(1) Any Respondent who wishes to oppose any application may file any one or a combination of the following documents (a) a notice preliminary objection: and/or; (b) replying afidavit; and/or (c) a statement of grounds of opposition” The Motion is therefore not opposed by any of the Respondents or the Interested Parties. Indeed, the Response filed by Mr Mabachi Stephen is infact a “response to the Petition” yet no directions have been taken on the Petition todate. What this Court is considering at this state is the Notice of Motion dated 21st June 2024 and not the Petition itself. Further, although both Cherono J and myself directed that submissions be filed, none of the parties, including the Petitioner, filed any submissions. All that this Court has to consider is therefore the Petitioner’s un-opposed Notice of Motion dated 21st June 2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8151/eng@2025-11-26 3

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10. In my view, the fulcrum of the Petitioner’s complaint by this Motion is what he considers to be a denial by the Respondents to provide him with the necessary information to enable him prosecute his Petition with regard to the infringement of his fundamental rights and freedom over property. Article 35(1) of the Constitution provides that: 35(1) Every citizen has the right of access to (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom.” Section 80 of the Evidence Act provides that: 80 (1) Every public oficer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such oficer with his name and his oficial title, and shall be sealed whenever such oficer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (2) Any oficer who by the ordinary course of oficial duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.” Section 9 of the Land Registration Act provides that: 9(1) (2) The Registrar shall maintain the register and any document required to be kept under this Act in a secure, accessible and reliable format including (a) publications, or any matter written, expressed, or inscribed on any substance by means of letters, figures or marks, or by more than one of those means, that may be used for the purpose of recording that matter; (b) electronic files; and (c) an integrated land resource register. The register shall contain the following particulars(a) name, personal identification number, national identity card number, and address of the proprietor; (b) in the case of a body corporate, name, postal and physical address, certified copy of certificate of incorporation, personal identification numbers and passport size photographs of persons https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8151/eng@2025-11-26 4

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authorized and where necessary attesting the afixing of the common seal; (c) names and addresses of the previous proprietors; (d) size, location, user and reference number of the parcel; and (dd) passport number, telephone number and email address where applicable; (e) any other particulars as the Registrar may, from time to time, determine.” Similarly, under the Survey Act, it is provided in Section 30 that all survey plans and records shall be deposited with the Direction of surveyor and Section 44 provides that any person may inspect any boundary plans. Section 4 of the Access to Information Act replicates Article 35 of the Constitution while Section 6 of the same Act sets out the circumstances when the access to information may be limited including national security, where such information will impede the due process of law or infringe professional confidentiality e.t.c. The Petitioner has averred, inter alia, that despite his request to the various public oficer impleaded herein to provide him with the necessary documents in their custody and which are relevant in this Petition, all his efiorts have been to no avail. It is instructive that the Respondents herein and who are the custodians of those documents have not bothered to respond to the Motion. The only conclusion which this Court can arrive at in the circumstances is that they have deliberately and for no good cause declined to comply with the law and avail the documents sought by the Petitioner. This Court must therefore grant the orders sought to enable the Petitioner prosecute his case. 11. Ultimately therefore and having considered the Notice of Motion dated 21st June 2024, this Court allows it and makes the following disposal orders: 1. The 1st, 2nd and 3rd Respondents shall within 60 days from the date of this ruling furnish the Petitioner with all the following documents at his cost; a. Records of the Land Adjudication Oficers set out on or about 1st January 1965 by the Land Adjudication Oficer for the Marachi Location, Adjudication Section. b. Records for the Bumala and Bujumba Adjudication Sections. c. All the adjudication records, maps demarcation Books, green cards and all other relevant documents in respect of the land parcels No Marachi/Bujumba/9, Marachi/ Bujumba/10 and Marachi/Bujumba/13. d. No orders as to costs. e. Mention on 9th February 2026 for directions as to hearing of the Petition. Mention notice to issue. BOAZ N. OLAO JUDGE 26TH NOVEMBER 2025 RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONI0C MAIL ON THIS 26TH DAY OF NOVEMBER 2025 WITH NOTICE TO THE PARTIES. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8151/eng@2025-11-26 5

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BOAZ N. OLAO JUDGE 26TH NOVEMBER 2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8151/eng@2025-11-26 6

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