Osodo & 3 others v Kongo & 3 others; Olengo & 12 others

to only as “the group” where the context so permits). The 4th Defendant is described in the further amended plaint as an interested party in the suit. 2. The Plaintis averred that the group, which had 200 members, was registered as the leasehold proprietor for a period of 99 years with eect from 1st January 1994, of all that parcel of land known as Nairobi/Block 83/893 situated at Umoja Innercore Sector IV, within Makadara Constituency, Nairobi County (hereinafter referred to as “the suit property”). The Plaintis averred that the suit property was allocated to the group by the Nairobi City Council through a letter of allotment dated 5th September 1998. The Plaintis averred that the group was issued with a Beacon Certicate by the Nairobi City Council Surveyor. 3. The Plaintis averred that the suit property was created from the then larger parcel of land known as Nairobi/Block 83. The Plaintis averred that the Nairobi City Council subdivided Nairobi/Block 83, which measured approximately 9.7 hectares, into four (4) blocks, which were assigned Map Sheet numbers 1, 2, 3 and 4. The Plaintis averred that the suit property was in Map Sheet number 3. The Plaintis averred that the group subdivided the suit property into 324 plots, namely, Plot Nos. 899 to 1222. The Plaintis averred that the suit property was planned for the construction of ats and a school. 4. The Plaintis averred that the 1st Defendant was a politician and a former chairman of the defunct Nairobi City Commission. The Plaintis averred that it was during the 1st Defendant’s tenure at the Commission, particularly in 2001, that the 1st and 2nd Defendants began to interfere with the group's ownership of the suit property, which they claimed to be Nairobi/Block 83/530. The Plaintis averred that the suit property was separate and distinct from Nairobi/Block 83/530 (hereinafter referred to only as Plot No. 530), both on ground position and size. The Plaintis averred that Plot No. 530 measured 1.5 acres and was in Map Sheet number 1, while the suit property measured approximately 24 acres and was in Map Sheet number 3. The Plaintis averred that the 1st and 2nd Defendants sold Plot No. 530 to the Kenya Assemblies of God in 2000. 5. The Plaintis averred that on 23rd February 2024, the Defendants engaged a surveyor, one Maina Kariuki, who happened to be a member of the group, to visit the suit property and establish the boundary beacons of the various plots within the property. The Plaintis averred that they were informed of the Defendants’ intention, and their plan failed. The Plaintis averred that after the group subdivided the suit property into 324 plots upon obtaining all the requisite approvals, the group presented the documents to the Land Registry in Nairobi on 15th November 2005, so that the Land Registrar could issue titles for the subplots to the members of the group. 6. The Plaintis averred that on 27th February 2006, the Defendants engaged another surveyor to establish the beacons on the suit property, although the property had already been subdivided into 324 plots. The Plaintis averred that they reported the encroachment on the group’s land to the police and were advised to seek the court’s intervention. The Plaintis averred that they led a suit against the Defendants, which their advocates withdrew without their authority. The Plaintis averred that the group owned the suit property and that the Defendants had no interest in the property, legal or benecial. The Plaintis averred that the Defendants’ actions aforesaid amounted to trespass on the suit property. 7. The Plaintis averred that the 1st and 2nd Defendants caused the suit property to be subdivided into 208 portions and the 3rd Defendant issued to them certicates of lease in respect of the subdivisions namely; Nairobi/Block 83/952, 955, 958, 959, 960, 962, 963, 964, 965, 966, 967, 968, 972, 974, 975, 977, 978, 979, 980, 981, 984, 985, 988, 989, 991, 992, 994, 995, 1012, 1013, 1069, 1080, 1104, 1105, 1106, 1113, 1116, 1128, 1131, 1182, 1176, 1177, 1178, 1179, 1181, 1108, 1114, 1115, 1117, 1118, 1119, 1122, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 2

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1129, 1160, 1158, 1150, 1157, 1146, 1144, 1142, 1121, 1181, 1163, 1164, 1165, 1166, 1168, 1169, 1170, 1171, 1172, 1173, 1110, 1111, 1112, 1103, 1120, 1123, 1162, 1161, 1126, 1127, 1107, 1109, 1125, 1130, 1149, 1175, 1174, 1167, 1148, 1147, 1145, 1143, 1147, 1143, 1200, 1201, 1202, 1203, 1204, 1205, 1206, 1207, 1208, and 1209. The Plaintis averred that the 1st and 2nd Defendants, having illegally and fraudulently obtained the said certicates of leases for the said subdivisions, proceeded to sell the same to third parties. 8. The Plaintis averred that the suit property had permanent buildings at various stages of construction in breach of the court order issued on 14th June 2011, restraining the Defendants from entering, occupying, trespassing on, constructing upon or in any manner interfering with the suit property pending the determination of the suit. The Plaintis averred that the subdivision of the suit property was illegal as the property did not belong to the 1st and 2nd Defendants. The Plaintis prayed for judgment against the Defendants for; a. A temporary injunction restraining the 1st and 2nd Defendants by themselves, their servants and/agents from entering, utilising, occupying, trespassing or in any other manner whatsoever interfering with the suit property. b. A permanent injunction restraining the 1st and 2nd Defendants by themselves, their servants and/agents from entering, utilising, occupying, trespassing or in any other manner whatsoever interfering with the suit property. c. A permanent injunction restraining the 1st and 2nd Defendants by themselves, their servants and/agents from entering, utilising, occupying, trespassing or in any other manner whatsoever interfering and/or dealing with the remainder of the subdivided plots within the suit property, and in particular the 106 subdivisions, which the Defendants were unable to dispose of. d. An order compelling the 3rd Defendant to cancel the certicates of lease in respect of the parcels of land enumerated in paragraph 27 of the plaint. e. An order directing the OCPD and PCIO Buruburu to eect and enforce the orders issued against the Defendants on 14th June 2011. f. An order compelling the 3rd Defendant to issue certicates of lease in respect of the parcels of land enumerated in paragraph 27 of the plaint in the names of the members of Wazee Makadara Self Help Group (the group). g. The costs of the suit. 9. The 1st Defendant led an amended statement of defence on 4th August 2015. The 1st Defendant averred that the 4th Defendant was improperly joined in the suit without leave of the court. The 1st Defendant averred that he was a stranger to the group and its registration status. The 1st Defendant denied that the group was the registered proprietor of the suit property. The 1st Defendant averred that the suit property did not exist and had never existed. The 1st Defendant averred that the suit property was a fabrication coined by the Plaintis to defraud members of the public. 10. The 1st Defendant averred that the Plaintis acquired a certicate of lease for the suit property using forgery and fraud, on account of which they were charged at Kibera Chief Magistrate’s Court in Criminal Case No. 2168 of 2006 and Kibera Chief Magistrate’s Court Criminal Case No. 2055 of 2015. The 1st Defendant averred that the Plaintis’ claim that they were allocated and/or issued with a lease over the suit property by the Nairobi City Council/Commission was pretentious, spurious, and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 3

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a fabrication. The 1st Defendant averred that the claim was contrary to the Plaintis’ initial position that the 1st Defendant sold the suit property to them. 11. The 1st Defendant denied that he had at any time interfered with the suit property or claimed that the suit property was Plot No. 530. The 1st Defendant denied that the suit property was situated in Map Sheet number 3, while Plot No. 530 was situated in Map Sheet number 1. The 1st Defendant denied that he had at any time engaged a surveyor to enter the suit property and establish its boundary beacons. The 1st Defendant reiterated that the suit property was non-existent and, as such, he could not have engaged a surveyor to establish its beacons. 12. The 1st Defendant averred that he had no interest in the suit property and had never raised a claim in respect thereof. The 1st Defendant averred that he had never owned the suit property and had never sold it to the Plaintis or anyone else. The 1st Defendant denied that he had been issued with certicates of leases for the subdivisions of the suit property by the 3rd Defendant. The 1st Defendant averred that following the subdivision of Mombasa/Block 83/530 owned by the 2nd Defendant into Plot Nos. 899 to 1222, the 2nd Defendant had sold most of the plots to third parties. The 1st Defendant averred that he was wrongly joined in the suit and that the suit was time-barred under Section 4 (2) of the Limitation of Actions Act. The 1st Defendant urged the court to dismiss the suit with costs. 13. The 2nd Defendant led an amended statement of defence and a counterclaim against the Plaintis on 9th September 2015. The 2nd Defendant averred that the 2nd and 3rd Plainti had no locus standi to maintain an action against the 2nd Defendant. The 2nd Defendant denied that the 3rd Plainti was an interested party to the suit and that he was joined to the suit through a court order. The 2nd Defendant also denied that the 4th Plainti was an interested party in the suit. The 2nd Defendant denied that the 4th Defendant was a party to the suit. The 2nd Defendant averred that the Plaintis did not obtain leave of the court to join the 4th Defendants to the suit. The 2nd Defendant averred that it was a stranger to the group and its registration. The 2nd Defendant averred that the Plainti failed to comply with the procedure for instituting a representative suit and, as such, had no authority to represent the group or its alleged members. 14. The 2nd Defendant averred that the suit property did not exist and that the Plaintis obtained a certicate of lease in respect thereof through forgery and fraud, which led to the Plaintis being charged in Kibera Chief Magistrate’s Court Criminal Case No. 2168 of 2006 and Kibera Chief Magistrate’s Court Criminal Case No. 2055 of 2015 with forgery and related oences. The 2nd Defendant averred that the suit property was unknown to it and it had no interest in the same. The 2nd Defendant averred that it could not have engaged surveyors to establish the beacons of the suit property. 15. The 2nd Defendant averred that the Plaintis’ claim that the measurement of the suit property changed from 8.67 hectares to 9.7 hectares was an afterthought raised only to create a similarity between the suit property and the 2nd Defendant’s parcel of land, Nairobi/Block 83/530 (Plot No. 530). The 2nd Defendant averred that the land parcel No. Nairobi/Block 83/530, referred to in the plaint as measuring 1.5 acres, was dierent from the land parcel No. Nairobi/Block 83/530 (Plot No. 530), previously registered in the name of the 2nd Defendant. 16. The 2nd Defendant averred that it surrendered its title to Nairobi/Block 83/530 to the Land Registrar, Nairobi Land Registry, and if the Land Registrar reissued the land reference number to another parcel of land owned by another person, that was an issue that did not concern the 2nd Defendant. The 2nd Defendant denied that the parcel of land it sold to Kenya Assemblies of God Church was Nairobi/ Block 83/530 (Plot No. 530). The 2nd Defendant averred that the Plaintis’ plaint disclosed no cause of action against the 2nd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 4

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17. The 2nd Defendant averred that Nairobi/Block 83/530 (Plot No. 530) was lawfully subdivided and titles for the subdivisions issued to various persons who had not been joined in the suit. The 2nd Defendant averred that the non-joinder of the said parties rendered the suit fatally defective. The 2nd Defendant denied that it breached the order issued by the court in this suit. The 2nd Defendant averred that the order did not refer to Nairobi/Block 83/530 (Plot No. 530). The 2nd Defendant averred further that if any construction was being undertaken, the same was being carried out by legitimate proprietors of the parcels of land in issue who were not parties to the suit. The 2nd Defendant averred that the Plaintis’ suit was time-barred and the prayers sought were incapable of being granted. 18. In its counterclaim, the 2nd Defendant reiterated the contents of the defence. The 2nd Defendant averred that it was at all material times the registered proprietor of the leasehold interest in Nairobi/ Block 83/530 (Plot No. 530) measuring approximately 9.7 hectares located at Innercore in Umoja. The 2nd Defendant averred that it acquired the property from the Government of Kenya in 1992. The 2nd Defendant averred that Plot No. 530 was not related to the suit property, Nairobi/Block 83/893, which the Plaintis claimed to have acquired from the City Council of Nairobi. The 2nd Defendant averred that it successfully applied for the subdivision of Plot No. 530 into 319 portions with reference numbers 899-1222. The 2nd Defendant averred that it was issued with all the titles for the subdivisions of the said parcel of land. The 2nd Defendant averred that it sold and transferred most of the subdivisions to new owners who had taken possession and developed the same with homes, schools, churches, and other structures. 19. The 2nd Defendant averred that the Plaintis had on numerous occasions trespassed or threatened to trespass on the said subdivisions of Plot No. 530 (Plot Nos. 899-1222). The 2nd Defendant averred that the Plaintis had continuously laid a claim to the land comprised in Plot No. 530, asserting that it was their parcel of land, Nairobi/Block 83/893, and had even obtained forged documents of title for its purported subdivisions. 20. The 2nd Defendant sought judgment against the Plaintis for; a. A permanent injunction restraining the Plaintis and the members of Wazee Makadara Self Help Group (the group) from trespassing, interfering, claiming or dealing in any way with the 2nd Defendant’s parcels of land known as Nairobi/Block 83/899-122. b. A permanent injunction restraining the Plaintis and the members of Wazee Makadara Self Help Group (the group) from publishing in the press, newspaper or any other media adverse notices or features relating to the 2nd Defendant’s properties known as Nairobi/Block 83/899-122. c. General damages. d. Costs of the suit. 21. The Plaintis led an amended reply to the 1st Defendant’s amended defence on 18th August 2015, in which they joined issue with the 1st Defendant in his defence save for the admissions. The Plainti averred that the 3rd Defendant should be joined in the suit in the spirit of Article 159 of the Constitution. The Plaintis averred that the suit property was in existence and denied having been involved in forgery and fraud in acquiring a title in respect thereof. The Plaintis averred that the criminal charges preferred against them amounted to an abuse of the process of the court. 22. The Plaintis led an amended reply to the 2nd Defendant’s amended defence and a defence to the 2nd Defendant’s counterclaim on 30th September 2015. The Plaintis joined issue with the 2nd Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 5

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in its defence, save where the same consisted of admissions. The Plaintis averred that paragraphs 2, 3, 4, 5, 6, 8 and 9 of the defence raised issues which were contrary to the parties’ agreement, directions, and leave granted by the court and Article 159 of the Constitution. The Plaintis urged the court to determine the dispute on its merits rather than indulging the 2nd Defendant’s sideshows. 23. In response to the 2nd Defendant’s counterclaim, the Plaintis reiterated that the 2nd Defendant had owned Plot No. 530, which measured 0.6212 hectares (1.5 acres), and that it sold the same to Kenya Assemblies of God. The Plaintis averred that it was inconceivable that land measuring 1.5 acres could have given rise to 324 parcels upon subdivision. The Plaintis averred that the 2nd Defendant’s counterclaim was frivolous, vexatious, and was meant to subvert the cause of justice. The Evidence presented by the Plaintis 24. The hearing of the suit commenced on 3rd October 2016 with the evidence of the 1st Plainti, Jared Oduor Osodo (PW1). PW1 told the court that he was an evangelist and a contractor. He stated that he was the secretary of Wazee Makadara Self Help Group (the group). He stated as follows in his evidence in chief: The dispute before the court was over L.R No. Nairobi Block 83/983 Umoja Inner Core (the suit property). The title of the suit property was at page 8 of the Plaintis’ list of documents. According to the certicate of lease at page 8 of the Plaintis’ list of documents, the property was registered in the name of Jared Oduor Osodo, Julius Nderitu Mitei and John Wachira Macharia. There was another certicate of lease for the suit property at page 9 of the Plaintis’ list of documents. According to this certicate of lease at page 9 of the Plaintis’ list of documents, the suit property was registered in the name of Wazee Makadara Self Help Group. This certicate was issued on 27th October 2015. 25. The certicate of lease at page 8 of the Plaintis’ list of documents was also issued on 27th October 2005. The certicate of lease at page 9 of the Plaintis’ list of documents was the rst to be issued. The certicate of lease at page 8 of the Plaintis’ list of documents was issued subsequently when it was realised that “Wazee Makadara Self Help Group” was not a legal person and as such could not hold land in its own name. The second certicate of lease was issued in the name of the group’s trustees. The group acquired the suit property in 1997. 26. At the time, the 1st Defendant had won a seat at the Nairobi City Council. As a way of showing his appreciation, he gave the members of the group the suit property. He showed the members of the group the land. The members formed the group and opened an oce on the suit property. The group then started processing the title for the suit property. The members of the group elected the ocials of the group. The 4th Plainti was elected as the chairman. Jane Karoki was elected as the secretary. James Machayo as the treasurer and Mr. Muturi as the Organising Secretary. The 1st Defendant then came to the group’s oce and asked the group to sign an agreement committing that the group would meet the expenses associated with the suit property, such as land rates, which the 1st Defendant said would be approximately Kshs.5 million. The members of the group contributed Kshs.6 million. The money was contributed weekly and was being collected by the 1st Defendant’s manager. The 1st Defendant’s manager used to sign a voucher each time he received the weekly payment from the group. The contributions were made over a duration of over 2 years. 27. In 2000, the 1st Defendant invaded the group’s oce with hired goons, beat up the ocials, and carried away all the documents that the group had in the oce. The ocials of the group were arrested and taken to Buruburu Police Station. At page 74 of the Plainti’s bundle of documents was a report prepared by the group’s former chairman, Julius Nderitu, which touched on the incident. The chairman reported how they were attacked and all their documents were carried away. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 6

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28. After the group was evicted from the suit property, the members regrouped and opened an oce in Nairobi. The group then engaged an advocate, R. M. Kimani, to act on its behalf. The advocate wrote to the 1st Defendant on 24th November 2003 over the suit property. The 1st Defendant did not respond to the letter. After 6 months without a response from the 1st Defendant, the group engaged surveyors, Nicholas Wahome and Paul Kariuki, to assist it in processing the title for the suit property. 29. The rst task for the surveyors was to conrm whether the suit property existed. They were to carry out a number of searches. When the said surveyors reported back to the group, they came with a surveyor from the City Council of Nairobi, Mr. Kihingo. The surveyors brought with them the allotment letter, beacon certicate, blueprint area map, and computation area list. The land had been subdivided by then. The allotment letter was at page 33 of the Plaintis’ list of documents, and the beacon certicate was at page 34. He received the documents on behalf of the group. At pages 43 to 45 of the Plaintis’ list of documents was the computation area list. At page 92 was the subdivision map. The suit property had been subdivided. The subdivision gave rise to L.R Nos. 899 to 1222, a total of 324 plots. The City Council of Nairobi issued the group with a lease for the suit property. This was also given to the group by Mr. Kihingo. He (PW1) was with Ms. Hotensia Wanjiru when he went to collect the lease. 30. After the group was issued with a lease, they started the process of having it registered. For this purpose, they engaged another advocate, Mr. Rioba. Mr.Rioba forwarded their documents to the land oce so that individual titles could be processed. Mr. Were, who was the Registrar of Titles in Nairobi, was not present when the documents were presented. The members of the group did not get their individual titles. This was when the dispute between the group and the 1st Defendant broke out. Out of the 324 plots, only one title was processed, namely, L.R No. 952. The 1st Defendant came back to the suit property and started subdividing it afresh and allocating portions thereof to his own people. The group’s surveyor, Peter Kariuki, found the 1st Defendant carrying out the subdivision. 31. The group instructed its advocate to le a suit against the 1st Defendant. A suit was led, namely, Nairobi High Court Civil Case No. 193 of 2006. In that suit, the group sought to restrain the 1st Defendant from dealing with the suit property. The court issued an injunction restraining the 1st Defendant from interfering with the suit property until that case was heard and determined. The Order was made on 2nd March 2006. After the application was heard interpartes, Alnasir Visram J. (as he then was) ordered that the status quo be maintained. 32. While that case was pending, the 1st Defendant made a report to the C.I.D that the group had forged documents and wanted to take away his land. The C.I.D started looking for the ocials of the group, including him (PW1). He was arrested on 16th May 2006 and locked up at Pangani Police Station. The following day, he was taken to Milimani C.I.D Headquarters, where he met the 1st Defendant. The other ocials of the group were also arrested. The group’s surveyors were also arrested and forced to record statements. The group’s advocate and the Land Registrar were not spared either. 33. He stayed at the police station for several days. The police then accompanied his wife to his house and took away all documents that he had at home that concerned Wazee Makadara Self Help Group (the group). He was accused of being the mastermind of the fraud. He was taken to Kibera Law Court and charged. He was released on bond. While the criminal case was ongoing, the 1st Defendant enlisted the services of a rm of advocates known as Wamwayi & Co. Advocates, which purported to be the group’s advocates, and withdrew the group’s civil case together with the orders of status quo that the group had been granted. The suit property then reverted to the 1st Defendant. The advocate, Mr. Wamwayi, purported to be acting for the group. The group did not instruct Wamwayi & Company Advocates to act for it in the civil case over the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 7

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34. At the time when the rm of Wamwayi & Co. Advocates purported to act for the group, the group already had advocates acting for it in the civil case. The advocates were J. M. Rioba and R. M. Kimani. The group later added Meshack Okoth Obura advocate. Meshack Okoth Obura & Co. Advocates wrote to Wamwayi & Co. Advocates inquiring as to who had instructed it to act for the group in the civil case, Nairobi HCCC No. 193 of 2006. The group complained against the rm at the Advocates Complaints Commission. The group did not get assistance from the Commission. The group then sought orders to reinstate the civil case. The case was reinstated. The group’s then advocate J. M. Kimani, stopped acting for the group without any explanation. The group then decided to le the present suit through another advocate. 35. In the current suit, the court issued an order restraining the 1st Defendant from dealing with the suit property. There were, however, people who were still constructing on the land. The order was served upon the 1st Defendant. The 1st Defendant sought to review the injunction order, but the review application was dismissed. The 1st Defendant appealed to the Court of Appeal. The appeal was also dismissed. 36. The 1st Defendant was found making markings on the suit property. It was at that time that the group led the rst case and obtained an injunction to restrain him from dealing with the property. The ocials of the group were thereafter arrested and charged. The 1st Defendant claimed that the group had forged documents, which it used to acquire the suit property. The 1st Defendant claimed that his parcel of land was Nairobi/Block 83/530 (Plot No. 530), and the land the group was claiming was Nairobi/Block 83/893 (the suit property). The 1st Defendant claimed that his Plot No. 530 was in the same position on the ground as the suit property. 37. He went to the C.I.D to nd out the truth about the plots. He met Peter Kyalo, who was stationed at the C.I.D headquarters. Peter Kyalo obtained a copy of the area map from the Director of Surveys. According to the map, Plot No. 530, which was on the map, measured 0.6212 hectares and was in Section 1. This map was at page 91 of the Plaintis' bundle of documents. The 1st Defendant claimed that the letter of allotment, beacon certicate, and the survey computations at pages 33, 34 and 43, respectively, of the Plaintis’ bundle of documents were forged. It was based on these documents that he was charged. Mr. Kihingo, who had assisted them in getting the documents, was also arrested. 38. At Kibera Law Court, where he was charged, he learnt that Plot No. 530 had been sold by the 1st Defendant to Umoja Assemblies of God Church. Plot No. 530 claimed by the 1st Defendant was dierent from the suit property owned by the group. The two parcels of land were in dierent areas of Umoja. The suit property measured 8.67 hectares, and after a resurvey, the measurement was adjusted to 9.4 hectares. 39. In 2014, the court ordered the City Council of Nairobi (the Council) to prepare and submit a report to the court. The order was complied with. The report was prepared and submitted to the court, and the same was on record. While this case was pending, they were again arrested and charged a fresh in respect of the oences that had been dismissed by the Kibera Court. All the orders issued by the court had been disobeyed by the 1st Defendant. He urged the court to grant the reliefs sought in the re-amended plaint. 40. PW1 produced the following documents in support of the Plaintis’ case, some of which were marked for identication; a. Letter of allotment dated 5th September 1998, marked as P.EXH. 1 (Page 33 of the Plaintis' bundle of documents) https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 8

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b. Beacon Certicate dated 24th December 2004, marked as P.EXH. 2 (Page 34 of the Plaintis' bundle of documents) c. Survey Computation marked as PMFI 3 (Page 43 to 45 of the Plaintis' bundle of documents) d. Survey Map marked PMFI 4 (Page 92 of the Plaintis' bundle of documents). e. Letter dated 24th July 2007, marked P.EXH. 5 (Page 66 of the Plaintis' bundle of documents). f. Survey Map marked PMFI 6 (Page 91 of the Plaintis' bundle of documents) g. Survey Computation marked PMFI 7 (Page 39 of the Plaintis' bundle of documents) h. Certicate of Lease dated 27th October 2005, marked as P.EXH. 8 (Page 8 of the Plaintis' bundle of documents) i. Certicate of Lease dated 27th October 2005, marked P.EXH. 9 (Page 9 of the Plaintis' bundle of documents). j. White Card marked as P.EXH. 10 (Page 11 of the Plaintis' bundle of documents) k. Letter dated 14th November 2005 by J. M. Rioba & Co. Advocates marked as P.EXH. 11 (Page 38 of the Plaintis' bundle of documents) l. Letter dated 24th November 2003 by R. M. Kimani Advocate marked as P.EXH. 12 (Page 72 of the Plaintis' bundle of documents) m. Chairman’s Report marked as P.EXH. 13 (Page 74 of the Plaintis' bundle of documents). 41. Jared Oduor Osodo(PW1) stated as follows on cross-examination by the advocate for the 1st Defendant: They formed Wazee Makadara Self Help Group (the group). The group was registered with the Ministry of Social Services. They had evidence of the registration. The Plaintis were the ocials of the group. He knew the 1st Defendant in 1997 as a politician who was contesting an elective seat in a ward within Makadara. He did not have a relationship with the 1st Defendant as an individual. The 1st Defendant was dealing with them as a group. The 1st Defendant gave them the suit property in appreciation of the support they gave him during his campaigns. They trusted the 1st Defendant when he gave them the land. They did not carry out a search at the time. He came to learn that the 1st Defendant was a commissioner in the Nairobi City Council. The 1st Defendant won the elections and became a councilor. That was why he was thanking them. He did not know how the 1st Defendant became a commissioner of the Nairobi City Commission. 42. In 1998, the Nairobi City Council was a commission. The 1st Defendant was the Chairman of the Commission. He was not aware that the Nairobi City Commission was dissolved in 1992. The 1st Defendant called them after the elections. At the time, the group had not been registered. The 1st Defendant met them at Makadara Social Hall. They were informed by Julius Nderitu, the 1st Defendant’s chief campaigner, that the 1st Defendant wanted to meet them. The 1st Defendant showed them the land and gave it to them. The land was shown to them as a group. They believed that the land belonged to the 1st Defendant. The Nairobi City Council granted them a lease over the suit property thereafter. The year 1994 mentioned in his statement as the date when they were allocated the suit property was erroneous. They started the process of acquiring the suit property in 1997. The suit property was allocated to them by the Nairobi City Council. The 1st Defendant gave them land which belonged to the Nairobi City Council. They led this suit after they had been issued with a certicate of lease. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 9

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43. Between 1997 and 2000, they paid a total of Kshs. 6 million to the 1st Defendant. The 1st Defendant carried away all the documents that they could have used as evidence of the payments made to the 1st Defendant when he attacked their oce with a group of thugs. He was not in the group’s oce during the attack. He was not aware whether the loss of the documents had been reported. The elected ocials of the group were Julius Nderitu, Chairman, Jane Karoki, Secretary, and James Mugera Machayo, Treasurer. When the 1st Defendant asked them to enter into an agreement with him, it was not an agreement for sale. The agreement was about how they were going to process the titles for the suit property. They obtained the lease at page 6 of the Plaintis’ list of documents from the City Council of Nairobi. The documents in their possession were obtained from other sources after the documents that were in their possession were taken away, as stated earlier. 44. PW1 stated further as follows in his evidence on cross-examination by the advocate for the 1st Defendant: A copy of the agreement between them and the 1st Defendant was carried away in the year 2000 when the 1st Defendant invaded the group’s premises with hired thugs. It was during that invasion that the 1st Defendant took away all their documents. They made the payment to the 1st Defendant's manager, whose name he could not remember. He was not an ocial of the group at the time, but saw the ocials of the group giving money to the manager of the 1st Defendant. 45. As a member of the group, he used to make payments to the group ocials, who were then remitting the same to the manager of the 1st Defendant. The 1st Defendant’s manager used to collect the money weekly. He had nothing to show that the person who used to collect the money was the 1st Defendant’s manager. The said manager used to sign vouchers each time he received money. The said vouchers were carried away with other documents when the group’s oce was raided, as stated earlier. They were being told that the monies they were contributing were being collected by the 1st Defendant’s manager. The 1st Defendant told them that the land he was giving the group was Plot No. 83/893. He was present in 1998 when the 1st Defendant gave these details. The 1st Defendant did not show them the title deed for the property. 46. He stated that Julius Nderitu, who was the Chairman of the group, was the chief campaigner for the 1st Defendant. He stated that the 1st Defendant started interfering with the suit property in 2000 and continued until 2002. The group did not le a suit against the 1st Defendant immediately because the 1st Defendant had taken all the documents the group would have used to le the suit. They obtained copies of the documents that had been carried away by the 1st Defendant later. They got a surveyor to assist them in processing the title for the suit property. The instructions to the surveyor were verbal. This was after the 1st Defendant had invaded the suit property. It was in the year 2004. He was elected to the oce in 2003. The surveyor obtained on their behalf and brought to them several documents, such as the letter of allotment, Beacon Certicate and Blueprint Area Map. 47. When the surveyor brought the documents to them, he was accompanied by an ocial from the City Council of Nairobi, by the name Mr. Kihingo. The said documents were brought to the group on dierent dates. He saw the letter of allotment of the suit property for the rst time in 2004 when it was brought by the said surveyor. The former ocials of the group told him that they had earlier been issued with a copy of this letter of allotment, but the same was carried away when the group’s oce was broken into. The letter of allotment was dated 5th September 1998. He did not know that 5th September 1998 was a Saturday. They complied with the terms of the letter of allotment. Evidence of payment was carried away when their oce was invaded by the 1st Defendant. They obtained a copy of the letter of allotment from the City Council of Nairobi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 10

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48. When he came to the oce, he did not nd receipts for the payments that the group made to the City Council for the suit property, as the same had been carried away during the invasion of their oce. The payment was, however, made in time. The instrument of lease was brought to them later. The lease at page 21 of the 1st Defendant's list of documents was signed by the mayor and the town clerk. He was not aware that the mayor and the clerk had disowned the lease. They trusted Mr. Kihingo, who gave them the lease. Mr. Kihingo called them, and they picked up the lease from his oce. Mr. Kihingo later changed the story regarding what happened during their dealings with him. 49. Mr. Kihingo was arrested together with him, and that may have been the reason why he changed the story. A Mr. Were conrmed while in the group’s oce that the documents they held were valid. Mr. Were was suspended, but he did not know his fate. After the conrmation of the validity of the documents by Mr. Were, they took the documents to their advocates J. M. Rioba & Company Advocates. On 9th November 2005, Mr. Rioba informed them through a letter that the suit property had been registered, and forwarded to them a certicate of lease. Mr. Rioba did not supply them with any other document apart from the said letter. They did a search and conrmed that the property had been registered. 50. The certicate of lease was rst issued in the name of Wazee Makadara Self Help Group. It was later changed to the names of the ocials of the group. This was because Wazee Makadara Self Group was not a body corporate. They returned the certicate of lease to their advocate for correction. He was not aware when it was amended. The 1st Defendant came to the suit property and started subdividing it. He was seen by Mr. Peter Kariuki doing so. Peter Kariuki was a private surveyor. He was the one who told him that he found the 1st Defendant surveying the land. The group complained to the police about the activities of the 1st Defendant. When they led HCCC No. 193/2006, they obtained an injunction restraining the 1st Defendant from dealing with the suit property. The 1st Defendant engaged Mr. Wamwayi Advocate, who went to court and withdrew the group’s case. He did not see the 1st Defendant instructing Mr. Wamwayi to withdraw the case. They were not present when the case was being withdrawn. They complained to the Advocates' Complaints Commission about Mr. Wamwayi. He did not follow up on the complaint after they delayed in taking action on the matter. 51. Their new advocate, Mr. R. M. Kimani, made an application to reinstate the case, but he did not prosecute the application. The case remained withdrawn. Their advocate did not tell them why he did not pursue the reinstatement application. They led the present suit because the other case had been withdrawn. He was not aware that the costs of the withdrawn case were assessed at Kshs.356,956/-. The suit property was surveyed by Mr. Gitau. He did not know when the survey was done, as he was not a member of Wazee Makadara then. He denied that the documents they produced in court were fraudulent. 52. He stated that Plot No. 83/530 was in Sector I, while Plot No. 83/893 was in Sector IV. He stated that the shapes of the two parcels of land were also dierent. He stated that they made an application for subdivision in 2001, and the same was approved, but he did not have a copy of the application. He did not have the documents because the same were carried away by the 1st Defendant and subsequently by the D.C.I.O, Mr. Karagu. Their title was issued in October 2005. They commenced the sub-division before they were issued with the title for the suit property. They were undertaking the subdivision on the strength of the letter of allotment. The land was surveyed in 1992 and gave rise to Block 83/893. 53. Although the letter of allotment did not bear a land reference, Block 83/893, that was the land which was allocated to them. Their land was in Sector IV. The 1st Defendant used to work at the Nairobi City Council and could manipulate records. S. G. Mwangi of the Nairobi City County, who claimed that Block 83/893 did not exist, had written an earlier letter conrming the existence of the land. He stated https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 11

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that the group’s land existed on the ground. He stated that he had been charged, but the charge was ctitious. 54. PW1 Jared Oduor Osodo stated as follows on cross-examination by the advocate for the 2nd Defendant: He was the secretary of Wazee Makadara Self Help Group. He became the secretary in 2000. They led High Court Case No. 193 of 2006 in which he swore some adavits. He was not the rst secretary of the group. The group was registered in 1997. The group had about 200 members. The group was formed to own a property in Nairobi. The former chairman of the group was the chief campaigner for the 1st Defendant. The 2nd, 3rd and 4th Plaintis were members of the group, and they had given him authority to give evidence on their behalf. He had a certicate of lease issued in the name of the trustees of the group. The names of the 2nd and 3rd Plaintis were not in the title because they were just ocials of the group. 55. The group came to court because the 1st Defendant started interfering with their rights of ownership of the suit property in 2000. It took them some time to le the suit because they were doing investigations. The suit property was allotted to them by the Nairobi City Commission. The letter of allotment was signed by Zipporah Wandera, but a copy of the letter that he had produced had no signature. The land that was allocated to them was at Umoja Innercore Sector IV. The plot number was not indicated in the letter of allotment. They paid a stand premium of Kshs.43,000/- and Kshs.6,000/- as annual rent. The land measured 8.67 ha. in the letter of allotment. The documents he had produced were obtained from the Nairobi City Council because the 1st Defendant conscated all their documents in 2000. After acquiring the suit property, they applied to the City Council through their advocate for the subdivision of the same. 56. The land was eventually subdivided. The application for subdivision was at page 38 of the Plaintis’ bundle of documents (P.EXH. 11). They obtained a subdivision certicate from the City Council of Nairobi, which was at page 32 of the 1st Defendant’s bundle of documents led on 11th May 2015. They got this certicate from Mr. Rioba, who was their advocate. According to the certicate, the subdivision was to be in respect of only one plot. They paid for the plot. Sarah Mwendwa had said that she could not issue a certicate for the other plots because they were not paid for. The 2nd Defendant’s certicate of subdivision at page 31 of its bundle of documents was in respect of many plots. The subdivisions were approved and were in respect of Block 83/530 measuring 9.7 hectares. The number of subplots was given as 319. 57. Their subdivision approval came before they were issued with a certicate of lease. It was their advocate who knew how that came to be. The Chief Land Registrar called upon them to surrender their certicates of leases for the subdivisions they had undertaken on their land. Their land was subdivided into 324 plots. They had paid for one plot. They were to pay for the other plots and have the certicates issued. They did not pay for the other plots because of the dispute that ensued. There was a small plot known as Nairobi/Block 83/530. It measured 0.6212 hectares. It had a mosque on it. It was in Umoja Inner Core Sector I. Their land was in Umoja Inner Core Sector IV. They did not establish when the title for Nairobi Block 83/530 was issued. They were only interested in Nairobi/Block 83/893 (“suit property”). 58. The 1st Defendant sold Nairobi Block 83/530 to the Kenya Assemblies of God Church (KAG). KAG was on their land in Umoja Innercore Sector IV. It was when they were ling this suit that they realized that KAG was on their land. The 2nd Defendant’s certicate of lease was in respect of Nairobi/Block 83/530. This was not the land that was sold to them by the 1st Defendant. Nairobi/Block 83/530 was located in Sector 1, Umoja. The group’s land was Nairobi/Block 83/893, which was in Umoja Sector IV. They subdivided their land into 324 portions, 899 to 1222, through a surveyor, L. K. Gitau. He https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 12

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was unsure whether the group paid L.K.Gitau, as he was not in the oce at the time. They came to court when Mr. Kariuki, who was their member, found the 1st Defendant and other people putting marks on the suit property with a white powder at night. The 1st Defendant was in the company of a surveyor named Maina Kariuki, who was not a member of the group. 59. He was not in agreement with the Director of Surveys and the County Government of Nairobi that Nairobi/Block 83/893 did not exist. He was aware of the several buildings that were coming up on the suit property. The buildings were being put up contrary to the orders of the court. They had not sued the developers. They would sue them and have them evicted from the property. They had sued the Defendants who sold the plots to the developers. Some of the titles were issued before they led this suit. They were not on the disputed land. They had attempted to enter the land and were prevented by the Defendants from doing so. The 2nd Defendant was claiming land that did not belong to it. The 2nd Defendant’s land was in Umoja Sector I. Mr. Wamwai was not their advocate, and they did not know how he got involved in their case. They made a complaint against him. 60. The Plaintis’ second witness was Cecilia Wangare Wamutitu alias Koigu(PW2). PW2 stated as follows in her evidence in chief: She was the Nairobi City County Surveyor. She was a licensed surveyor. She started working for the Nairobi City Council in 1990. She was appointed as the County Surveyor in 2013. She wrote a letter dated 5th December 2014 forwarding to the court a survey report that was prepared by the Nairobi City County. The Survey Report was on the location of L.R No. Nairobi Block 83/530 and L.R No. Nairobi Block 83/893 (Plot No. 530 and Plot No. 893. The report was prepared pursuant to a court order issued on 14th November 2014 in this suit. The order was sent to the oce of the Chief Ocer. At the time, the Chief Ocer was on leave, and she was the acting Chief Ocer. 61. On receipt of the order, she personally visited the ground with some of the Nairobi City County government ocers, with the plans which were available in the oce. She visited the ground on 1st December 2014. The Parcel Numbers 530 and 893 were given by the Director of Survey, who is the Custodian of survey records. In the county, they had development schemes. These were what the surveyors used in the eld to carry out surveys and then forward the survey plans to the Director of Surveys to generate parcel numbers. Once the land was earmarked for allocation, a plan was developed by the planning department. This was what the county surveyor used for county land to submit survey records to the Director of Surveys. 62. The survey records were submitted in the form of survey computations, eld notes, the negative survey plan, and the linen plan (Hard copy of the negative). The negative and the linen copies of the plan were signed by the County Licensed Surveyor. Once the survey was registered, the licensed surveyor had to buy the registered survey plan for use in the titling process. In this particular case, they had a survey plan and a development scheme. These documents were referred to in her report. They used the development plan for land allocation, while the survey plan from the Director of Surveys was used for titling. Umoja Inner Core was a development scheme. They had Sector I, Sector II, Sector III, Sector IV and Sector V. These were all in one development plan or scheme, which was annexed to her report. Umoja Housing Estate Inner Core plots scheme was a development scheme that was developed by the Nairobi City Council for Umoja Estate. The scheme was divided into ve (5) sectors. This could be seen on the face of the scheme. 63. All the sectors were in Umoja Phase II. Umoja Phase I was a neighbouring scheme. The sectors were in Umoja Inner Core. The Umoja Inner Core scheme was given Block number 83 by the Director of Surveys. There were several survey plans for various sectors. The Development schemes had several plots that could not t into one survey plan. She found Nairobi Block 83/530 in the survey plan Folio/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 13

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Register 211/68, which was approved by the Director of Surveys on 5th August 2004. The survey plan was annexed to her report. The survey plan was for land parcel numbers 530 to 618. Anything outside these numbers was not part of this survey plan. The survey plan was for Sector I. In the Development plan (Scheme), Plot No. 530 was denoted as S.P.C.F 16. S. P. means Special Purpose. This was a specialpurpose plot. Special-purpose plots were normally allocated to institutions. 64. Plot No. 893 was in Survey Plan Folio/Register 224/20, authenticated by the Director of Surveys on 28th May 1992. This survey plan was for Umoja Innercore Sector IV. The survey plan was for Parcel No. 893 only. After identifying the plots in the survey plans and the development schemes, she went to the ground to identify the same. She took photographs using her camera of what she found on the ground. She took one photograph of what she found on plot No. 530. All the other photographs were taken on plot No. 893. The photograph she took on plot No. 530 was that of a mosque. The mosque was standing on plot No. 530. The other structures were all on plot No. 893. She concluded that Nairobi Block 83/530 and Nairobi Block 83/893 were two (2) distinct parcels of land. One was in Umoja Inner Core Sector I and the other in Umoja Inner Core Sector IV. The document at page 39 of the Plaintis' bundle of documents was an area list which accompanies R.I.M. It was an area list for Umoja Sector I. It was supposed to assist in titling. The area list was for registration Block 83, Nairobi Area, Survey Plan F/R 211/68, which she had referred to earlier. From this area list, plot No. 530 measures 0.6212 hectares. Normally, it is not possible to allocate one parcel number to two dierent plots in dierent areas. If that happens and it is detected, a correction is done immediately. In this case, she only found one plot No. 530, and one plot No. 893. The land in Nairobi Block 83 belonged to the Nairobi County Government. It was leased to the County Government by the National Government. The land was surveyed by the County Government. It was the County Government that did the allocation after the survey. She produced her report dated 5th December 2014 as P.EXH. 13. 65. Cecilia Wangare Wamutitu alias Koigu (PW2) stated as follows on cross-examination by the advocate for the 1st Defendant: The court order was served upon the Chief Ocer. It was received at the oce of the Chief Ocer. When the order came, she was acting as the Chief Ocer but was sitting in her oce. The order was delivered to her by the oce of the Chief Ocer. The Chief Ocer was Stephen Gathuita Mwangi. He was her boss. In preparing her report, she used several documents, which she enumerated in the report. Stephen Gathuita Mwangi was also a licensed surveyor. She consulted him when preparing the report. She was a qualied surveyor. Mr. Mwangi did not direct her on what to do. She only consulted him on how to do the report, more particularly, whether she could sign the report on his behalf. It was normal for surveyors to consult. She got the plans, which she used in her report from their database. She ascertained the authenticity of the maps with the Director of Surveyors. She used what she had in her custody. The Director of Surveys did not certify the maps. She was the one who certied them. The survey map at page 42 of the 2nd Defendant's bundle of documents was a survey plan Folio No. 224/20. The survey plan was for plot No. 530. She did not see this survey plan in their database when she was preparing her report. According to this survey plan, the survey work was received by the Director of Surveys on 27th May 1992 and was authenticated on 28th May 1992. She could see Parcel No. 530 measuring 0.6212 hectares in the survey plan Folio No. 211/68. It was on this plot that she found a mosque. This survey plan was presented to the Director of Surveys on 10th May 1990 by a licensed surveyor, D. Gacanja Kagu. The parcel of land shown in the survey plan at page 42 of the 2nd Defendant’s bundle was located in Umoja Inner Core Sector IV. The survey plan for parcel No. 893, which she produced, and the survey plan at page 42 of the 2nd Defendant’s bundle of documents looked the same, but she could not say that they were the same. Survey plan Folio No. 211/68 was authenticated on 5th August 2004. There was nothing wrong with the authentication. The survey plan at page 42 of the 2nd Defendant’s bundle of documents was presented on 27th May 1992 and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 14

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authenticated on the following day, which was unusual. There might have been someone following up on the job. 66. The letter dated 21st March 2006 by the City Council of Nairobi at page 42 of the 1st Defendant's bundle of documents, was written by Mwai Kariuki, deceased. What he stated in the letter was his opinion based on the documents that were before him. She could not conrm that plot No. 893 did not exist. The letter at page 45 of the 1st Defendant’s bundle of documents was by S. G. Mwangi. He stated that the Director of Surveys should clarify the duplication of land reference numbers. S. G. Mwangi did not show him this letter. Her report did not contradict this letter. Her report was an independent report following a court order. Mr. Mwangi did not tell her what to put in the report. The letter dated 9th April 2015 was to the Governor of Nairobi by the rm of Mwangi & Guandaru Advocates. The letter was not brought to her attention. She was not aware that the complaint was over her report. 67. She prepared her report in 2014. In the letter at page 173 of the 2nd Defendant’s bundle of documents, S.G.Mwangi referred to investigations by the Public Accounts Committee of the County Assembly. The investigation was being done after her report. She stood with her report despite the contents of the memo dated 16th April 2015 at page 174 of the 2nd Defendant’s bundle of documents. She was not aware that the Director of Surveys, who is the custodian of survey documents, had denied the existence of Nairobi/Block 83/893. She had not seen the survey plan, F/R No. 313/39. The letter dated 18th July 2014 by the Director of Surveys at page 48 of the 1st Defendant's bundle of documents disputed their position at the County Government. They requested the Director of Surveys to supply them with the linen copy of the survey plans, which gave rise to plots No. 893 and 530. Without the linen copy of the survey plans, she stood with her report. The linen copy of the survey plan cannot be edited. The same was not supplied. 68. She had stated that the survey plan No. F/R 224/20 was for Nairobi Block 83/893. The Director of Surveys had taken a dierent view. She believed that he was hiding some information. He had not furnished the court with a linen copy of the survey plan, whereas he was the custodian of the linen copies. The Director of Surveys’ claim that L.R No. Nairobi/Block 83/893 did not exist could only be proved by a linen copy. In the absence of a linen copy of the survey plan, that claim could not be correct, and she stood by her position. Before she prepared her report, she went to the Director of Surveys' oce. The Director of Surveys did not inform her that there was a duplication of Nairobi Block 83/530. She did her work as a surveyor. 69. From her investigations, Nairobi Block 83/893 had been subdivided, and it was sparsely developed. She saw the plan, but she could not remember when the subdivision was done. It was not unusual to carry out a subdivision before a title was issued. The County Government could carry out a subdivision of its land before a title was issued for the same. The mother title is surrendered when subtitles are being issued. It is in the subdivision of private land that a title must exist before a subdivision is done. 70. Cecilia Wangare Wamutitu alias Koigu (PW2) stated as follows on cross-examination by the 2nd Defendant’s advocate: Stephen Gathuita Mwangi did not sign her report. She signed the report on his behalf. Her letter forwarding the report was copied to two law rms. She was acting on instructions. She did not know the two law rms. She did not contact anybody when preparing the report. She did not contact the law rms. She knew there was a dispute between the Plaintis and the Defendants. Her report was neutral. She used the documents from the Director of Surveys. The letter dated 9th April 2015 from Mwangi & Guandaru Advocates over the survey report on Nairobi Block 83/530 and 893 was not brought to her attention. They had been summoned at one time to shed light on Nairobi/ Block 83/530. The summons was from the County Assembly Public Account Committee. She was not aware that it was her department that raised a complaint with the County Assembly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 15

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71. She did not know how the Plaintis acquired the land they were claiming. She was at the City Council of Nairobi in 2001 when the subdivision was done on Nairobi Block 83/893. She was a young surveyor in the Housing Department. She could see the survey plan Folio No. 313 Register 39. The same was not legible. The plan did not indicate the original parcel number as 893. She could see the survey plan at page 43 of the 2nd Defendant’s bundle. The plan was similar to the one she had been shown earlier, which belonged to the Plaintis to the extent that the folio number and register number were the same. She was unable to comment on the other aspects of the two plans. The original number was not indicated in the survey plan at page 43 of the 2nd Defendant's bundle of documents. On their face, the two plans looked similar. One of the plans was not genuine. 72. Before a subdivision, approval had to be sought from the City Council. The City Council did not need approval to subdivide its land. The le for L.R No. Nairobi Block 53/893 was missing from their records. She prepared her report based on the available records. She was not aware that the subdivision of L.R No. Nairobi Block 53/530 was approved by the City Council. She did not have the approval in her records. The survey plans that she produced were obtained from the Director of Surveys. The Director of Surveys should produce the linen maps to disprove the maps she had produced in her report. She could see the lease agreement at page 258 of the 2nd Defendant's bundle. The lease was in respect of plot No. 16, Umoja Estate, Sector I. There was a mosque on this plot. It was this plot No. 16 which became Nairobi Block 83/530. 73. The owners of plot No. 16 could not get a title because the parcel number had been duplicated. She referred to a development plan in her report, which was used to carry out the survey. It was the Part Development Plan (P.D.P). The land which was allocated to the Plaintis was in Sector IV in the development plan. The development plan was prepared by a planner who was contracted by the City Council. The size of Sector IV was not given in the development plan. 74. On re-examination, PW2, when referred to the town planning committee minutes at page 22 of the 2nd Defendant's bundle of documents, stated that the minutes referred to the land parcel, Block 83/530, as being in Umoja Inner Core Sector IV. She stated that in her report, she stated that the land parcel Block 83/530 was in Sector I, and what was in Sector IV was land parcel Block 83/893. She stated that in the minutes, the size of the plot is given as 9.7 hectares, while in the survey plan at page 44 of the 2nd Defendant’s bundle, for land parcel Block 83/530, the size of the land is given as 9.422 hectares. She stated that there was an alteration of the acreage in the plan, which was not countersigned by the surveyor. 75. The Plaintis’ next witness was Priscila Njeri Wango (PW3). PW3 stated as follows in her evidence in chief: She was a land surveyor working with the Director of Surveys. The oce of the Director of Surveys received a summons to attend court and produce the original linen maps for land parcels, Nairobi Block 83/893 and Nairobi Block 83/530. A survey job submitted to the Director of Surveys comprises a computation le, a linen copy, and a tracing copy. For the two parcels, these documents were not in the records of the Director of Surveys. The original records of the computation le, linen copy, and tracing copy were not available. 76. They normally scan documents for backup. From their computer, they managed to get survey plan F/ R No.211/68, which was received by the Director of Surveys on 10th May 1990. This survey plan was for land Parcel No. 530, and its computation le was number 24666. The area of the land was given as 0.6212 hectares. She also got another scan for survey plan F/R No. 224/20. This was received by the Director of Surveys on 27th May 1992, and its computation le was number 27225. The survey plan was also for land parcel No. 530. When she got two dierent survey plans for one parcel in the same locality, she thought there was an error. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 16

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77. She did further investigation. They had a related oce at Ardhi House called SPRO. Initially, they used to send Blueprint copies of survey plans to that oce. In that oce, she got the survey plan, F/R No. 224/20 for land parcel 893, whose area was given as 9.422 hectares. Survey plan, F/R No. 211/68 was scanned from the original copy, while survey plan No. 224/20 was scanned from a Blueprint. Survey plan, F/R No. 211/68 was for the survey of land parcel numbers 530 to 618. It was submitted to the Director of Surveys on 10th May 1990. The Director of Surveys gave the parcel numbers 530 to 618. Survey plan, F/R No. 224/20 was submitted to the Director of Surveys on 27th May 1992. It was the survey plan for land parcel No. 530. It was not possible to give this land parcel No. 530 because parcel number 530 had already been assigned to another parcel of land in 1990. The survey plan F/R No. 224/20 was a scanned copy, which she got from the computer. It was not scanned from a linen copy but from a Blueprint. Survey plan F/R No. 224/20, which she got from the SPRO, was for parcel No. 893. It was similar in all respects to the scanned survey plan F/R No. 224/20, which she got from their computer for parcel number 530, save for the parcel number. From her experience, anytime documents go missing from the records, there is interference. She concluded that land parcel No. 893 existed and was represented by F/R No. 224/20. 78. From their records, they only had survey plan F/R No. 224/20 for land parcel No. 530. Survey plan F/ R No. 224/20 for parcel No. 893 did not exist. In their records, land parcel No. 530 was represented in survey plan F/R No. 211/68. This was the rst survey plan that generated parcel No. 530. Normally, when the original records were missing, the client could bring the Blueprint, which they would scan for their records. She produced survey plan F/R No. 211/68 as P. EXH. 14, survey plan F/R No. 224/20 for parcel No. 530 produced as P.EXH. 15, and survey plan F/R No. 224/20 for parcel 893 as P.EXH.16. She stated that it was common to have alteration in the parcel areas but in such case a note is made in the computation le. The computation les for parcel Nos. 530 and 893 were not available. There could be a duplication in parcel numbers, but where the computation les are available, they would know how it came about, and a rectication would be done. 79. The land parcel No. 530 in survey plan F/R No.211/68 had the same area as land parcel No. 530 in survey plan F/R No.224/20. The two parcels of land were in the same area, but the les were dierent. Only the shapes and the sizes of the les were dierent. The original land parcel No. 530 was the one represented by survey plan F/R No. 211/68. It was the rst to be given the parcel number. 80. On cross-examination by the advocate for the 1st Defendant, Priscila Njeri Wango (PW3) stated as follows: She was based at the oce of the Director of Surveys at Ruaraka. She was a Principal Surveyor. Her role was to undertake investigations and also deal with legal issues. She would carry out investigations where there were queries on the maps and deed plans. She also attended court on behalf of the Director of Surveys. She was served with a summons to attend court to produce maps for two land parcels, Nairobi Block 83/893 and 530. The summons did not indicate the issues in dispute. She was just asked to come and produce the maps. Plot No. 893 existed on the map. For the two parcels, the computation les were not available. They did not have the linen or tracing copy of the map. After a survey job was submitted, it was checked for compliance with their standards. Once it was approved, they would normally scan the linen copy or the tracing copy. For the two parcels, they had the scanned copies of the maps. They were not scanning the computation les. That had changed, and they were scanning the same. The physical maps were not available. She found two (2) documents in the computer, namely, survey plan F/R No. 211/68 for plot No. 530, which was a cadastral map. The plot measured 0.6212 hectares. A cadastral map is drawn using coordinates. They are prepared for a title survey. It is the same as a survey map. It is this map that created plot No. 530. In their computer, she also found the survey plan F/R No. 224/220. This was another map, but for the same parcel number. The parcel number was the same, but the area or acreage was dierent. The measurement here was 9.422 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 17

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hectares. The locality of the two maps was Nairobi. She could not pinpoint the locality from the maps. One had to visit the ground to be able to do that. The coordinates for the survey plan F/R No. 211/68 for plot Nos. 530 to 618, and the coordinates used for survey plan F/R No. 224/20 suggested that the properties were in the same locality. The maps had to be authenticated before they were scanned. That was the procedure. The two maps had been authenticated by the Director of Surveys, but there was a problem because one parcel number could not be given for two properties. Such errors, however, used to occur. They were caused by human error and, at times lack of integrity on the part of the sta processing the documents. The maps she had produced were both certied as true copies of what she got from their computer. 81. Survey plan F/R No. 224/20 was authenticated on 28th May 1992, while survey plan F/R No. 211/68 was authenticated on 5th August 2004, but it was submitted earlier on 10th May 1990. Survey plan, F/ R No. 224/20 was received on 27th May 1992. Survey plan F/R No. 211/68 was authenticated on 5th August 2004, 12 years after the authentication of survey plan F/R No. 224/20 on 28th May 1992. The parcel numbers, such as 530 – 618, were being given before authentication. The numbers are given serially. That meant that although survey plan F/R No. 211/68 was authenticated on 5th August 2004, the parcel numbers 530 – 618 were given in 1990 when the job was received. The parcel numbers are given by the Director of Surveys. When a job is received, the numbers are given before the map is authenticated. The maps are submitted without the number. It is the Director of Surveys who inserted the numbers that are in the plans that she produced. The parcel numbers in the survey plan F/R No. 211/68 were given by the Director of Surveys. They had two survey plans where the Director of Surveys gave the same parcel number for two dierent parcels of land. This was abnormal. She had explained what causes such incidents. 82. A survey plan becomes valid upon authentication. Survey plan F/R No. 224/20 became valid for use on 28th May 1992. It was the rst in time as far as the validation was concerned. She had not concluded the investigation into what caused the abnormality. She went to the SPRO and found that there was yet another map apart from the two that she had referred to. She did not get a computation le for survey plan F/R No. 224/20 and survey plan No. 211/68. She was therefore unable to know what caused the anomaly. She did not know how the same number was issued for two (2) separate properties. She did further investigations in the SPRO’s oce just out of curiosity. She asked the SPRO’s oce whether they had a map for land parcel No. 530. The SPRO consisted of ocers from the Director of Surveys who were seconded to the Ministry of Lands to assist the Director of Land Administration with Registry Index Maps, Part Development Plans and such like. 83. The SPRO’s oce sometimes used to keep copies of the maps. The Director of surveys normally do not work on the basis of Blueprints. Blueprints are copies of tracing passed through dryline print using ammonia paper. Blueprints are the ones that they sell to the public. Blueprints assist them in retracing records when the records are missing. They normally only print the same when clients come for copies. Earlier they used to produce and send Blueprints to the oce of SPRO for records. The tracing is the ocial record that they keep. It is from it that they produce the linen copy and blue copy. The SPRO oce had no role in the approval of plans. The oce could not override the decision of the Director of Surveys. She found another copy of survey plan F/R No. 224/20. The only dierence in the plan was that the parcel number 893 measured 9.422 hectares. This map was not scanned. It was also not in their computer. The map was a Blueprint which they normally sell to clients. She did not know how the Blueprint ended up in the SPRO’s oce. It however assisted them as part of the records. 84. She did not know there was a dispute over these parcels of land. The survey plan F/R No. 211/68 for parcel Nos. 530 – 618 and survey plan F/R No. 224/20 for parcel No. 530 were from the records held by the Director of surveys. She obtained the same from their computer. They were copies made from https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 18

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scanned linen copies. A linen copy is more reliable as compared with the Blueprint copy. The maps that she printed out from her computer were more reliable than the Blueprints. Personally, she did not carry out further investigations on the issue. The survey plans produced as P.EXH. 15 and P.EXH. 16 were similar, save for the pens used. She did not doubt that land parcel No. 530 under survey plan F/ R No. 224/20 existed. She was also still convinced that land parcel No. 893 under survey plan F/R No. 224/20 measuring 9.422 hectares, also existed. Her conclusions were based on the Green Card in the oce of the Director of Surveys, which had the details of parcel No. 893 under survey plan F/R No. 224/20 measuring 9.422 hectares. The Green Card for land parcel No. 530 had a measurement of 0.6212 hectares. Of the two (2) survey plans for land parcel No. 530, the authentic one was survey plan F/R No. 211/68. This conclusion was also based on the Green Card at the oce of the Director of Surveys. She could not bring the Green Card to court because it is not issued to the public. She was not aware that ocers from their oce had taken dierent positions regarding the two parcels of land. What she told the court was her opinion from the documents she had produced. 85. On cross-examination by the advocate for the 2nd Defendant, Priscila Njeri Wango (PW3) stated as follows: She was a Principal Surveyor, but had been assigned to do investigations and to attend to legal issues. They had numerous discrepancies that needed investigation. After doing investigations, she normally prepares a report. In this case, she did not do thorough investigations because she was only required to produce documents. If she had done thorough investigations, she would have come up with more information. She had not gone to the ground. She came across a report to the eect that the smaller parcel 530 had a mosque. She had given her opinion based on the documents that she had produced. The ocer in charge of SPRO was a senior cartographer. He reported to the Director of Land Administration. He was the one in charge of the documents. The ocer in charge did not certify the documents that she obtained from the SPRO’s oce. The Blueprint was attached to the Registry Index Map (R.I.M). She did not know who took the documents to that oce. She did not know if they were taken there by those who interfered with their processes. Even the Green Card, which she had referred to, was not immune to interference. It could also be interfered with. Scanning of maps started around 2005. There was no scanning in the 1990s. She could recall the letter by P. F. Njoroge dated 3rd July 2015, in which he acknowledged that there was duplication of parcel number 530. Where there is a duplication, one must be cancelled. She did not know who interfered with the process of the survey that led to the duplication. She did not know which parcel number was to be cancelled. She was aware that the small parcel No. 530 had a mosque. She went to the SPRO because that was where she could get a survey map. She did not know of anywhere else where she could get a map. In re-examination, PW3 stated that in their oce, the Green Card is used to give parcel numbers. She stated that the numbers are given sequentially, and as such, the parcel No. 530 was given before parcel number 893. 86. The Plainti’s next witness was Peter Kyalo (PW4). PW4 stated as follows in his evidence in chief: He was the Chief Security Ocer with the Ministry of East African Community and Regional Development. He had held the position since June 2020. Before that, he was working with the DCI, specialising in Fraudulent Documents. In May/June 2011, a group named Wazee Makadara, the Plaintis in the suit, lodged a complaint with the DCI. He was asked by the ocer in charge to have a look at the documentation relating to two parcels of land, namely, Nairobi/Block 83/530 and Nairobi Block 83/893. He visited the site of the two parcels of land at Umoja. He found that the rst parcel of land, plot No. 530, was in Umoja Sector I Inner Core and it measured 0.6212 hectares. The other parcel, plot No. 893, was in Umoja Sector IV. It measured 9.4 hectares. He requested the Director of Surveys to conrm the location of the two parcels on the map. They complied by issuing him with certied true copies of the two maps. The map F/R No. 211/68 related to plot No. 530 (See page 91 of the Plaintis’ rst bundle of documents). The map F/R No. 313/39 was for plot No. 893. Plot No. 893 had been subdivided into subplots 899 – 1222 (See page 92 of the Plaintis’ rst bundle of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 19

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documents). One of the subplots from plot No. 893 namely plot No. 952 had been sold. He did not nd out to whom the plot was sold. He inquired about the ownership of plot No. 530. He wrote to the Land Registrar on the issue. He left oce in 2011 before he got a response to his letter. He never got to know the owner of Plot No. 530. He however got a report on the ownership of plot No. 893. He found that prior to the subdivision of plot No. 893, it was owned by Wazee Makadara Group (The Plaintis). He wrote the letter dated 20th June 2011 at page 62 of the Plaintis’ rst bundle of documents to the Director of Surveys seeking particulars/details regarding the two plots. The letter was signed by Mr. Bosire who was in charge of economic crimes. It was signed on behalf of the Director. He was in the team that was carrying out investigations. The documents that he looked at disclosed fraud. Two parcels of land could not be placed on one spot. He had left the DCI at the time the investigation was concluded. 87. On cross-examination by the advocate for the 4th Plainti, PW4 stated that in his opinion, there was fraud. He stated that the documents relating to plot 893 looked authentic. He stated that he did not get the information on the ownership of plot No. 530. 88. On cross-examination by the advocate for the 1st Defendant, PW4 stated that he recorded a witness statement dated 1st December 2014 led in court on 9th December 2014. He conrmed that he signed the statement and the content was true. He stated that the complaint was lodged by Wazee Makadara Group. He could not remember all the people who made the complaint. It was a long time ago. He could remember Mr. Osodo and Mr. Wachira. He was based at the C.I.D headquarters. The complaint concerned the ownership of two parcels of land. The complainants complained that their land had been encroached on by Omar, the 1st Defendant. He did not know if the complaint was recorded in the O.B. It was being handled by a group/panel. He was only tasked with looking at the documents. He was part of a team. The complaint must have been recorded in the O.B. The matter was allocated to a team. He was a member of the team. He could not remember all the other team members. He could recollect that there was James Manyuru and others. He acted on the assignment for about 3 months. A police le was opened. Somebody else recorded statements. He could not recall who recorded the statements and from whom. Apart from the complaints, he did not know if any other person had been asked to record statements. Apart from what he did, he did not know the outcome of the other aspects of the investigations. When he visited the site, he was with one of the complainants and another ocer, Mr. Manyuru. They were shown the location of the parcels of land by one of the complainants. He went to the site for corroboration purposes. The sectors were on the maps. The complainants had the maps. He also got the maps from the Director of Surveys. He had a map for the whole of Umoja, which had the two parcels of land. The ocers from the Director of Surveys visited the site after he had left the D.C.I. He was told that they did. He was issued with the maps on 21st July 2011. He was the one who obtained the maps that he had referred to. He obtained the maps after he had visited the site. There was no reason to visit the site again. The position on the ground tallied with the maps. He was not a surveyor. He was an investigator. He made his conclusion based on his visit to the scene and on the documents. He did not know the outcome of the investigations that the DCI carried out. He had left. He was told that the Defendant sold plot No. 530 to Kenya Assembles of God (KAG). K.A.G stated that it bought the land from the 2nd Defendant. They recorded a statement. He was not aware that the complainants were charged in court. He wrote the letter dated 21st November 2012, requesting for a caveat to be placed on the disputed parcels of land. His letter was not a forgery. He was in oce and was authorised to put a caveat on the titles. 89. On cross-examination by the advocate for the 2nd Defendant, PW4 stated as follows: He was trained in general fraud investigation in S. Korea and South Africa. He did not know why the complaint was made at the DCI Headquarters. The complaint was made directly to the economic crimes department, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 20

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which was also handling land fraud. They had an investigation le and an investigation diary. James Manyuru was their team leader. He was summoned by the Plaintis' advocate. He did not know if Mr. Manyuru was still at the DCI. At the time he was doing the investigation, he was a corporal. He did not summon the directors of the 2nd Defendant. That was not his line. He made his conclusion from the documents in his possession. The complainants did not tell him that they had been charged in court. He did not carry out a forensic examination on the documents that he received. He left the DCI before doing that. The Ministry of Lands did not produce the documents they had asked for. He made a witness statement on 1st December 2014 after he had left the DCI. He did not have documents in support of the conclusion that he had arrived at. Their team was to prepare a report. He had not seen any report made by the team. The evidence he had given was part of the report that was to be made. He was not under the DCI. He did not require authority to give evidence. 90. The Plaintis’ next witness was Albanus Munguti (PW5). PW5 stated as follows in his evidence in chief: He was working with the DCI. At the time of his testimony, he was based at the oce of the County Criminal Investigation Oce. Previously, he was working with the Nairobi County on secondment from the DCI Headquarters. He was working in the department of Investigations and information analysis. He worked there from 2011 to March 2020. He could recall that on 23rd March 2012, the 1st to 4th Plaintis reported to their then director, the late Bernard Mate, that their land parcel number Nairobi/Block 83/893 (suit property) had been fraudulently acquired and registered in the name of the 1st and 2nd Defendants. This complaint was also made to the County Secretary and the Governor of Nairobi. He was instructed by Bernard Mate to carry out investigations with a view to establishing the truth of the allegation. To prove ownership of the property, the complainants provided several documents, among them, a certicate of registration of their group, a certicate of lease in their name, a copy of their allotment letter signed by the late Ms. Wandera, a Beacon Certicate, a valuation roll, and some court orders. They claimed that their land had been subdivided into 124 plots. 91. He visited the oce of the Chief Valuer, Mr. Nyoike. Mr. Nyoike conrmed that the suit property had been entered in the valuation roll in his oce, but the entry had been removed from the record in unclear circumstances. He also summoned the Chief Accountant in charge of rates, Mr. Mureithi. He wanted to conrm if the property had been in the valuation roll. He conrmed that the suit property was in the valuation roll in the system and that it was removed in unclear circumstances. He then went to the conveyancing department to conrm the lease agreement that the complainants had. The department conrmed that they had issued the lease agreement. There was a copy of the allotment letter. He went to the clerical ocer in charge of documentation. The clerical ocer conrmed that the letter of allotment had been generated through the oce of the Town Clerk. The clerical ocer conrmed this from his records. He extended his investigations to the oce of the Chief Ocer of Lands. He interrogated Baptista Kihingo. Mr. Kihingo conrmed that the signature appearing in the Beacon Certicate was his. 92. He requested the Chief Ocer, Mr. Mwangi to give him two (2) surveyors to take him to the ground. He gave him Ms. Cecilia Wangare and Mr. Matoke. These were County surveyors. They took him to the ground. They pointed out to him the location of Nairobi/Block 83/530 (plot No. 530), and gave him the measurement as 1.527 acres. They further took him to Nairobi/Block 83/893 (plot No. 893). They gave him the measurement of the land as 9.7 hectares. He thereafter took statements from the Chief Ocer, Ms. Wangari, and Mr. Matoke. The Chief Ocer conrmed that both parcels of land were County Government properties and plot No. 530 was allocated to the 2nd defendant, while plot No. 893 was allocated to Wazee Makadara Group (Plaintis). 93. He thereafter wrote to the Chief Land Registrar, who allowed him to interrogate and record a statement from a land registrar Ms. Sarah Mwendwa. He interrogated Ms. Mwendwa and recorded https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 21

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her statement. Ms. Mwendwa conrmed having issued a lease to Wazee Makadara Group (Plaintis). He requested for the parcel les from Ardhi House for both properties. The parcel les could not be traced. They started looking for the parcel les in 2012. By 2014, they had not received the les. After this, the Director of Investigations, the late Bernard Mate, summoned the Plaintis and the 1st Defendant. The 1st Defendant did not answer the summons. He was summoned through his mobile phone. The director of the 2nd Defendant was also summoned. He also did not appear. They then gave a status report of the investigations. In the report, they concluded that the resultant numbers after the subdivision plot No. 893 should be registered in the name of the Plaintis and that any aggrieved party should seek a civil remedy. The status report dated 27th June 2013, which he prepared for Mr. Mate’s signature, was at page 35 of the Plaintis’ bundle of documents. He was no longer working with the Nairobi City County. He was summoned from Machakos through the oce of the DCI to appear in court. He personally prepared the status report for the late Mr. Mate’s signature. He identied the report, which was marked as “PMFI 17”. He adopted his witness statement led in court on 9th December 2014 as part of his evidence in chief. 94. On cross-examination by the advocate for the 4th Plainti, PW5 stated that plot No. 893 and plot No. 530 were about 50 meters apart. He stated that there was a mosque on plot No. 530, which was abutting Stage “C” in Umoja. He stated that plot No. 893 was opposite the Chief's oce in Umoja, and on the plot was a famous restaurant called “Visa Place”. He stated that the parcel les for both plot No. 530 and plot No. 893 were missing at the land oce. He stated that he veried all the documents that were brought to them by the Plaintis and found them authentic. He stated that they did not receive any document from the Defendants. 95. On cross-examination by the advocate for the 1st Defendant, PW5 Albanus Munguti stated as follows: He started working with the County Government of Nairobi in 2011. This case was pending then. There was nothing wrong with the Plaintis’ complaining to them in respect of a matter that was in court. The Plaintis made a complaint on 3rd March 2012. The complaint was made to Bernard Mate, the then Director of Investigations at City Hall, who had since passed away. They did not come to him directly. The Plaintis were referred to him by the said Director of Investigations. The Director instructed him to verify whether the complaint had any merit. He was instructed to attend to the complaint. The complaint was oral. There was another complaint that was addressed to the Governor and the Company Secretary. He did not see the complaint. His role in the oce was to carry out general investigations of any reported case and to evaluate the information received. He could also investigate reported crimes. He could not recall if the oce of the Governor had been set up at the time. The Plaintis told him that the documents they brought were copies of the documents that they retained after presenting the same for registration at Ardhi House. He was the one who prepared the status report. The oce of the Director of Investigations used to report to whoever had requested the investigation. Mr. Nyoike, the Chief Valuer, told him that plot No. 893 had been registered in the valuation roll and that the same was removed from the roll in unclear circumstances. 96. During his investigations, he did not interrogate the memo at page 251 of the 2nd Defendant’s bundle. He did not come across it. He did not know K. J. Ayieko. He reported to the City Hall in December 2011. He did not meet K. J. Ayieko. Mr. Nyoike did not explain why the plot was removed from the valuation roll. The Chief Accountant in charge of rates did not tell him anything about this memo. He conrmed what the chief valuer had told him. The plots that were on the valuation roll were the 324 plots that were subdivisions of plot No. 893. The documents that were given to him were signed by specic ocers. He did not interrogate Mrs. Wandera on the letter of allotment. He did reach her as she was in Western Kenya and was ailing. He did not go to her home. He was not aware that Mrs. Wandera had denied signing the letter of allotment. The lease at page 21 of the 1st Defendant’s bundle was not https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 22

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the lease that was brought to him by the Plaintis. He had never seen the lease. He was not aware that the mayor and the town clerk had denied signing the lease. Baptista Kihingo conrmed that he issued the beacon certicate. He was not aware that Mr. Kihing’o had disowned the beacon Certicate. He was given two surveyors who took him to the ground. 97. The surveyors identied the location of the plots to him. They also gave him the measurements of each parcel of land. The two plots were County Government Land. He recorded a statement from Sarah Mwendwa. Sarah Mwendwa conrmed having issued the lease certicate. He was not aware that Sarah Mwendwa was arrested over this dispute. The parcel les could not be traced. The Director of Investigations summoned the 1st Defendant through mobile phone. He did not appear. The call to the 1st Defendant was made in his presence. The Director of the 2nd Defendant was summoned through the 1st Defendant. The Director of Investigations told him that the 2nd Defendant was associated with the 1st Defendant. The Governor was not in the oce when he was undertaking the investigations. He did not visit the Director of Surveys' oces. The two surveyors who were with him were supposed to collect information from the survey department. He was not aware that the Director of Surveys had conrmed that the subplots that they recommended should be registered in the name of the Plaintis did not exist. He did not interrogate the Chief Land Registrar because the parcel les were missing. His investigations were conclusive. The land in dispute belonged to the County Government, and they had all the records. Plot No. 530 was allocated to the 2nd Defendant. He got the information from the evidence he collected from the County records. There were parcel les in the County oces. The County had a land registry. The parcel le that he obtained for plot No. 530 had an application, a letter of allotment, and other documents. 98. The 2nd Defendant sold plot No. 530 to the Kenya Assemblies of God Church (KAG). He got the information from a bishop whose name he could not recall. The bishop told him that the Church plot was a subdivision of plot No. 530. Plot No. 530 was not subdivided. It had a school, a mosque, and some other buildings. The bishop was sold a plot within plot No. 893 by the 1st Defendant. The ground which the bishop was shown was on plot No. 893 that belonged to Wazee Makadara. There was doctoring of documents so that plot No. 893 appeared as plot No. 530, while plot No. 530 was doctored to appear as plot No. 893. The church had bought a plot, but the ground that it was shown was on plot No. 893. In their report, the County Assembly stated that plot No. 893 belonged to Wazee Makadara while plot No. 530 belonged to the 1st Defendant. By March 2020, the parcel les were still missing. The investigation le was still open. He left for Machakos in March 2020. He veried the documents that were supplied to them by the County Government. 99. Albanus Munguti (PW5) stated as follows in cross-examination by the advocate for the 2nd Defendant: He was attached to the City Council of Nairobi by the DCI headquarters. He continued drawing a salary from the National Government (DCI), and he was answerable to the DCI. He was carrying out general investigations. He joined the Council in 2011. He was a Police Corporal. He was in a department within the City Council of Nairobi. The department was still in existence. They were about 5 ocers from the DCI. He was not the head of the team. The late Bernard Mate was the head of the team. He was discharging his duties as he would have done at the DCI oces. When a member of the public came to the oce with a complaint, there was an occurrence book where the complaint was recorded. There was also a complaint form to be lled out and taken to the director. The director would then assign an ocer to carry out investigations. He did not have a copy of the complaint that was lodged by the Plaintis, which was recorded in the occurrence book (OB). He could not have been asked to investigate a complaint that was not recorded in the OB. The complaint was made through the town clerk. There was a written complaint. The Plaintis wrote a letter. They thereafter came to the oce and made a report that was recorded in the occurrence book. They lled out a complaint https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 23

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form. The investigations then commenced. An inquiry le was opened, but he could not remember the le number. The le would contain the normal documentation. 100. He moved to Machakos. He could not bring the le to court. There were about 5 people who made the complaint. He took their statements, which were in the le. The complaints had several documents, including a court order. He was aware that there was an ongoing civil case touching on the property. The investigation was not going to prejudice any party. He did not peruse the court le. Their duty was to investigate all the documents through which the land was transferred. He was investigating the ownership of Nairobi Block 83/893 and Nairobi Block 83/530. He was not aware that there was a criminal case facing the complainants. Even if he was aware of the criminal case, he would still have proceeded with the investigations because it concerned the council's property. The land initially belonged to the City Council of Nairobi. He learnt of the criminal case in court. He was not aware of it. He stood with paragraph 5 of his statement. He did not issue summons to the directors of the 2nd Defendant. They were summoned by Mr. Mate after obtaining their names from the registrar of companies. He had never heard of Anthony Kememia Gathumbi. He did not know he was a councilor. Mr. Mate called the 1st Defendant and the director of the 2nd Defendant. He was not aware if Mr. Mate called Anthony Kimemia. The investigation was not one-sided. The respondents were called, and they failed to respond. He completed his investigation and presented a report, which was at page 35 of the Plaintis’ list of documents. It was not true that this was a status report and that it was given for internal consumption. The letter dated 11th September 2014 from the Nairobi City County to Odero Osiemo & Co. Advocates, written by Mr. S. G. Mwangi, Chief Ocer Lands, to the eect that land parcel No. Block 83/893 did not exist was misleading. There was a swapping of numbers. There were two parcels with the number 530. There was a manipulation of documents. Land parcel number 893 was allocated to Wazee Makadara. He interviewed Mr. Ndegwa, who carried out the subdivision on behalf of the Plaintis. He was a private surveyor, and he conrmed that he carried out the subdivision. His report was addressed to the Director Legal. He was the legal advisor of the County Government. He recorded a statement of one of the bishops. He could not comment on the letter dated 24th March 2006 by the K.A.G. He stood with his evidence. The internal memo dated 16th April 2015, at page 174 of the 2nd Defendant’s bundle of documents by Karisa Iha, the Director Legal, contained pure lies. 101. The Plainti’s last witness was Philip Ocharo (PW6). PW6 stated as follows in his evidence in chief: He was the Deputy Director in the Department of Investigation and Information Analysis, Nairobi County. The document marked PMFI 17 was an investigation report dated 27th June 2013 from their department to the Director Legal regarding a complaint over Nairobi/Block 83/893 by Jared Oduor and others. He found it in their correspondence le. It was signed by Mr. Mate, who was deceased. He produced the report as P.EXH.17. He did not participate in the investigations. The investigations were carried out by CPL Urbanus Munguti (PW5). 102. On cross-examination by the advocate for the 1st Defendant, PW7 stated as follows: He was employed in 1989. He was in the oce when the investigations were carried out. He was a county employee. He was not a police ocer. He was not part of the investigation. All he knew was what was in the report. He came to produce the report. 103. On cross-examination by the advocate for the 2nd Defendant, PW6 stated as follows: He had a carbon copy of the report. The original was forwarded to the legal department. They were not part of the inspectorate department. They were trained by the C.I.D., and they had the C.I.D. ocers in the department. They kept investigation les. Once the le was closed, it was taken to DCI for closure. The le was handled from the criminal angle. He did not know whether the le was closed and taken to the DCI. He did not know why the report was addressed to the Director Legal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 24

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The 4th Plainti closed his case without calling a witness. The evidence presented by the Defendants 104. The 1st Defendant, Habib Omar Kongo(DW1), gave evidence after the close of the Plaintis’ case. He gave evidence on his own behalf and on behalf of the 2nd Defendant. He stated as follows in his evidence in chief: He was a businessman in Nairobi. He recorded a witness statement, which was led in court on 11th May 2015. He adopted the statement as part of his evidence in chief. He led two bundles of documents, which he produced as exhibits. The 1st Defendant’s bundles of documents led on 11th May 2015 and 17th June 2015 were produced in evidence as D. EXH. 1 and D.EXH. 2, respectively. He did not know the parcel of land known as Nairobi/Block 83/893. He did not even know its location. In 1997, he did not vie for any political seat. He was not a councilor in 1997. In 1997, the Nairobi City Commission did not exist. He became the Chairman of Nairobi City Commission in 1991/1992, and not in 1997. In 1992, he ceased to be the Chairman because elections were called, at which the City Council of Nairobi was reinstated. This was a General Election. He did not run in the 1997 elections. He ran in 1992 and lost. The council that was elected in 1992 served until 1997, when another election was held. It was not true that the 4th Plainti was his chief campaigner during the 1997 KANU elections. He knew the 4th Plainti. In 1997, he ran for a seat during the KANU elections. He was vying for the seat of the Chairman of the KANU Nairobi Branch. In 1997, he only vied for the Chairmanship of the Nairobi KANU Branch. The 4th Plainti was not his chief campaigner. He was not vying for the Chairmanship of Makadara Constituency. He was vying for the Chairmanship of the whole of Nairobi. He became the Chairman of the KANU Nairobi Branch. 105. He did not ask the Plaintis to form a group. It was not true that he encouraged the Plaintis to form a group. In 2005/2006, he was called by the Chief of Umoja. The Chief told him that there were people claiming that he had sold land to them and that they had documents from an advocate and a list of names of people totaling 323. He went to the Chief’s oce, and the Chief gave him the documents. The Chief gave him a letter written to the Registrar of Lands, to the attention of Sarah Mwendwa. 106. The letter was at page 38 of the Plainti’s bundle. It was produced as P.EXH.11. The chief gave him another letter addressed to him, dated 24th November 2003, which was produced as P.EXH. 12). The Chief also gave him the documents, which were listed in the letter dated 14th November 2005 by J. M. Rioba & Co. Advocates. The letter by R. M. Kimani, dated 24th November 2003, claimed that he sold to Wazee Makadara Self Help Group, the parcel of land known as Plot No. 83/893 in 1998. He did not know the group until he got the letter from the chief. He could not, therefore, be a patron of the group. He did not know the location of plot No. 83/893, so he could not have given the land to the Plaintis or the group. He did not know the 1st Plainti. He could not, therefore, have entered into an agreement for sale with him in respect of the suit property. It was a contradiction to say on one hand that he gave them land and on the other that he sold the land to them at Kshs.6,000,000/-. He knew Mr. Festus Kimani, whom the Plaintis had referred to, but he was not his agent for collecting money from the Plaintis. He was not selling his land to the Plaintis, and he did not enter into any agreement with them. He could not interfere with the land whose location he did not know. 107. He did not agree with the report dated 5th November 2003 by the 4th Plainti, save that he was the KANU Chairman, Nairobi Branch. The Plaintis had contradicted themselves in paragraph 14 of the re-amended plaint. He could not have sold or given the Plaintis the disputed parcel of land, and at the same time, the same land be allocated to them by the Council. Plot No. 83/893 was not allocated to him by the Council. In HCCC No. 193 of 2006, the 1st Plainti had claimed in the supplementary adavit sworn on 2nd March 2006, that he sold the suit property to the Plaintis. The letter of allotment dated https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 25

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5th September 1998 in favour of the Plaintis was inconsistent with the Plaintis’ claim that he sold them the property in dispute. The letter of allotment was issued by the Nairobi City Commission, which was not in existence in 1998. The letter of allotment did not also refer to the parcel number for the suit property, which was already in existence in 1992 according to the survey plan. 108. There were several contradictions in the purported allocation of the suit property to the Plaintis. The certicate of lease in favour of Wazee Makadara Self Help Group (the group) was dated 27th October 2005 (P.EXH. 9). There was no evidence of surrender of this certicate of lease before another certicate of lease was issued in favour of the Plaintis, Jared Oduor Osodo and Others (P.EXH. 8). The two certicates of lease bore the same date. There was no lease between the City Council of Nairobi and Jared Oduor Osodo and his colleagues as trustees of the group. In the letter dated 24th April 2006 (page 46 D.EXH. 1), the Chief Land Registrar informed Wazee Makadara Self Help Group (the group) that their registration as the owners of plot No. 83/893 was irregular and unauthorised. The group was also asked to surrender the certicate of lease for the property. He was not aware whether the surrender was done as directed by the Chief Land Registrar. He referred to the subdivision certicate at page 32 of D.EXH. 1. He stated that by the time plot No. 83/893 was being approved for subdivision, the title for the property had not been issued to the group. The group’s title was issued in 2005. The land could not have been subdivided before its title had been issued. F.M. Ndereva denied issuing the subdivision certicate. The City Council of Nairobi (Council) also stated that it had no records of approval of the subdivision scheme for plot No. 83/893 Umoja Inner Core. The Council denied surveying plot No. 83/893. The Commissioner of Lands also stated that the subdivision of Plot No. 83/893 was not done by the Ministry of Lands. The survey plan F/R No.313/39 did not cover plot No. 83/893. It was a survey plan for plot No. 83/530. 109. The Director of Surveys, in his letter at page 48 of P.EXH. 1, stated that plot No. 83/893 was not in the survey plan F/R No.224/20, and that it was plot No. 83/530 that was subdivided in 2001 with subplots Nairobi Block 83/899 – 1222. These were the same subplots claimed by the Plaintis. He was familiar with plot No. 83/530. This parcel of land was owned by the 2nd Defendant. The subdivision of the land was done by a surveyor named L. K. Gitau. L. K. Gitau denied surveying plot No. 83/893. He also denied knowing the Wazee Makadara Self Help Group. He was the Managing Director of the 2nd Defendant and its Chief Executive Ocer. In the letter dated 11th September 2014 (Page 45 D.EXH. 1), the Nairobi City County stated that plot No. 83/893 did not exist and that the letter superseded any previous communication on the issue from the Nairobi City County. The letter superseded the letter dated 16th May 2014 from the same author (page 43, D.EXH. 1), which contradicted it. 110. Mr. Kihingo, the surveyor who allegedly issued a beacon certicate to the Plaintis, denied doing so. Mr. Kihingo stated that plot No. 83/893 did not exist, and that the survey plan F/R No. 313/39 belonged to the 2nd Defendant and not the Plaintis. The Plaintis’ letter of allotment dated 5th September 1998 was said to have been signed by Z. M. Wandera (Mrs). Z. M. Wandera (Mrs) wrote a letter at page 20 of D.EXH. 1, denying having signed the said letter of allotment. There was no evidence showing that the Plaintis paid the stand premium set out in the letter of allotment. 111. The subdivision which was approved by the Council on 1st February 2001 was for plot No. 83/530 Umoja Inner Core and not plot No. 83/893 (See the minutes at page 16 of D. EXH. 1). In the subdivision certicate for the Plaintis at page 32 of D.EXH. 1, the Plaintis claimed that the approval of the subdivision of plot No. 83/893 was also given by the Council on the same date. There were, however, no minutes to support the claim. The subdivision of plot No. 83/530 was approved by the Commissioner of Lands on 15th May 2001 (See page 19, D.EXH. 1). In the Plaintis’ subdivision certicate at page 32 of D.EXH. 1, the Plaintis claimed that it was the subdivision of plot No. 83/893 that was approved. According to the subdivision certicate, by the Plaintis, only subplot No. 952 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 26

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was subdivided. It was plot No. 83/530 that was subdivided into 323 plots. These were the plots being claimed by the Plaintis to be the subdivisions of plot No. 83/893, which only gave rise to plot No. 952. He did not know where plot No. 83/893 was located. He had never invaded that land. Plot No. 83/893 was being used by the Plaintis to hoodwink the public into giving them money. The land did not exist. They reported the matter to the police, the Survey of Kenya, and the Ministry of Lands. 112. On further examination in chief by the advocate for the 2nd Defendant, DW1 stated as follows: He was an ocer of the 2nd Defendant. He was the Chief Executive Ocer (CEO) of the company. He had been the CEO since 1993. He adopted his witness statement led in court on 29th June 2015 as part of his further evidence in chief. He produced the documents attached to the 2nd Defendant’s comprehensive bundle of documents led on 29th June 2015 as D.EXH. 3, and the documents attached to the 2nd Defendant's supplementary list of documents led on 23rd September 2015 as D.EXH. 4. He stated that plot No. 83/530 (plot No. 530) was owned by the 2nd Defendant. The plot was allocated to the 2nd Defendant by the Nairobi City Commission (the Commission) in 1992. Plot No. 530 was allocated to the Commission by the Commissioner of Lands. The commission accepted the allotment. The letter of acceptance was at page 3 of D.EXH. 3. The Commission did not pay for the allotment. The land was allocated to the 2nd Defendant by the Commission before it paid for it. 113. After the 2nd Defendant was allocated the land by the Commission, it took some time before getting the title from the Commission because the Commission did not have a title from the Commissioner of Lands. The 2nd Defendant took it upon itself to clear the sum of Kshs. 3,442,610/-, which was to be paid by the Commission for the land. The 2nd Defendant requested the Nairobi City Council to allow it to pay the said amount. The Council wrote to the Commissioner of Lands on 29th September 1995, asking the Commissioner of Lands to issue the 2nd Defendant with a lease. The letter conrmed that the Council had entered into a lease with the 2nd Defendant and that the 2nd Defendant had paid Kshs.3,442,610/-, which was payable by the Commission. 114. The Commissioner of Lands responded on 2nd October 1995 and conrmed that the lease would be prepared in the name of the 2nd Defendant (see pages 6 and 8 of D.EXH. 3). In addition to the sum of Kshs.3,442,610/-, the 2nd Defendant paid a further sum of Kshs.2,639,990/- to the Commissioner of Lands. For the letter of allotment, the 2nd Defendant paid the Council Kshs.1,800,000/-. At page 4 of D.EXH. 3 was a form of transfer, and at page 4 of D.EXH. 3 was the rent demand. The 2nd Defendant was subsequently issued with a lease and certicate of lease. See pages 10 to 15 of D.EXH. 3. The lessor was the Government of Kenya. Plot No. 530 measured 9.7hectares. The size of plot No. 83/893 was given as 6.7 hectares. The Plaintis’ title was issued in 2005, 10 years after the 2nd Defendant’s title. 115. In the Plainti’s title, the lessor was the Council, while in the 2nd Defendant’s title, the lessor was the Government of Kenya. The lease terms for the two titles were dierent. The two parcels of land were distinct. However, on the ground, the Plaintis would show members of the public the 2nd Defendant’s land as their plot No. 83/893. The church only bought a small portion of plot No. 530. It was not true that the church bought the whole of plot No. 530. The 2nd Defendant intended to build residential houses on plot No. 530. The 2nd Defendant had reserved some spaces for public utilities. The 2nd Defendant made an application to the Council to subdivide the property. At pages 17 to 22 of D.EXH. 3 were the minutes of the proceedings for December 2000/January and February 2001. At page 22 of D.EXH.3, the approval of the application for the subdivision made by the 2nd Defendant. The number of subplots approved was 319, but this could be reduced or increased. The Plaintis had relied on the 2nd Defendant’s subdivision approval, claiming that the same belonged to them. At page 25 of D.EXH. 3, was the plan, which was approved by the Council. The plan was taken to the Commissioner of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 27

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Lands. The Commissioner of Lands received the plan and approved the same. He had not seen a similar approval in respect of the Plainti’s purported subdivision. 116. Once the subdivision was approved by the Commissioner of Lands, the title had to be surrendered to the Commissioner of Lands before the other titles for the subplots were issued. The 2nd Defendant's surrender was at page 37 of D.EXH. 3. The 2nd Defendant surrendered its title on 23rd June 2004, even before the Plaintis got their title. There was no evidence of the surrender of the Plaintis’ title. The survey of Plot No. 530 was done, and the 2nd Defendant was given survey computation No. 47867. The computation was at pages 33 to 36 of D.EXH. 3. At page 38 of D.EXH. 3 was a document from the Director of Surveys that was to enable the 2nd Defendant to get the titles. The letter indicated computation No. 47867. The map referred to in the letter was at page 43 of the D.EXH. 3. After the subdivision, the 2nd Defendant started getting the titles in its name. 117. The 2nd Defendant had sold almost all the subdivisions to third parties as of the date of his evidence. The third parties had developed their parcels of land. The titles of some of the subplots were at pages 44 to 126 of D.EXH. 3. Some of the titles were at pages 4 to 16 of D.EXH. 4. The third parties had not been joined in the suit. There was a criminal case and a civil case prior to this suit. The criminal case was instituted in 2006. The persons who were charged were the Plaintis, who were the ocials of Wazee Makadara. The case ended halfway. At page 139 of D.EXH.3 was the charge sheet against the ocials of Wazee Makadara. The case was stayed briey through a judicial review order. The judicial review suit was ultimately dismissed, and the criminal case was to continue. See judgment at page 144 of D.EXH. 3. The criminal case was never concluded. A fresh case was instituted. At pages 252 to 255 of D.EXH., 3 were the warrants of arrest against the ocial of Wazee Makadara. 118. The new criminal case was number 2055/2015. The ocials of Wazee Makadara were acquitted, and there was a pending appeal. The report by C. W. Wamutitu, dated 5th December 2014, was led in court pursuant to a court order issued on 14th November 2014. He was not aware of the survey or the visit to the ground by C. W. Wamutitu. He did not even know of the report until he saw it in court. Through the letter dated 9th April 2015, the 2nd Defendant’s advocates, Mwangi & Guandaru Advocates, complained to the Governor against the report. The Nairobi City County internal memo at page 174 of D.EXH. 3 stated that the report by C. W. Wamutitu contradicted the position of the County Government. The memo recommended that the report be withdrawn. 119. At page 258 of D.EXH. 3 was an agreement for lease between the Council and Young Muslim Association dated 31st January 1989 in respect of plot No. 16. It was this Plot No. 16, which was duplicated to be plot No. 530. The duplication occurred in 2010 after the 2nd Defendant had acquired its title. There was therefore another title, Block 83/530, which resulted from the said duplication of Block 83/850, with a mosque. This was formerly plot No. 16. It was given plot No. 83/530 after the 2nd Defendant had surrendered its title. The survey department stated that they would correct the anomaly. This was the plot that had been referred to in C. W. Mutitu’s report as plot No. 83/530. The Director of Surveys conrmed in a letter dated 3rd July 2015 (See page 18 of D.EXH. 4) that there was a duplication of number 530. The 2nd Defendant was not involved in this duplication of plot No. 530. The Director of Surveys stated that the error would be rectied. The 2nd Defendant had a counterclaim against the Plaintis, prayed for judgment in terms thereof. 120. DW1 Habib Omar Kongo stated as follows in cross-examination by the advocate for the 1st to 3rd Plaintis: He was not consulted when C. W Wamutitu carried out her survey. He was not aware that the Plaintis were also not consulted. Plot No. 83/530 did not have a mosque. The land with a mosque was the former plot No. 16, which was duplicated as plot No. 83/530 in 2010. C. W. Wamutitu concluded that plot No. 83/530 and plot No. 83/893 were distinct and dierent parcels of land. He could see https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 28

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special-purpose plot No. 16 near Sector 1. Plot No. 83/530 belonging to the 2nd Defendant was in sector IV. Plot No. 83/530 was triangular, and it was in Sector IV. The mosque was still on plot No. 16, which was erroneously given plot No. 83/530. He was not aware that C.W Wamutitu was demoted and her oce vandalized after she gave evidence in this suit. The Plaintis were acquitted in the criminal case, but the DPP appealed. They were found to have no case to answer. This was in a 2015 criminal case. He was not aware that the 2006 criminal case (Criminal Case No. 2168/2006) was withdrawn. The third parties who purchased portions of plot No. 83/893 had developed their parcels of land. He had not produced all the titles for the subdivisions of plot No. 83/530 in D.EXH. 4. The surrender of lease at page 37 of D.EXH. 3 was not dated. The subdivision certicate at page 31 of D.EXH.1 had no letter reference number of the Commissioner of Lands. 121. The 2nd Defendant paid land rates to the Council before it subdivided the plot No. 83/530. The 2nd Defendant requested to be allocated plot No. 83/530. The land was allocated to the 2nd Defendant by the Nairobi City Commission. The lease was, however, issued by the Commissioner of Lands. He was not aware if there was someone else having a title issued by the Government of Kenya for the Umoja Inner Core land. He never sold or gave the Plaintis any land. The newspapers could report anything. The report was false. He was at one time the Chairman of the Nairobi City Commission. He was also a councillor for Makadara. He became the Chairman of Nairobi City Commission in 1991. He served until 1992 when elections were held. Before he became the Chairman of the Commission, he was a businessman. In 1992, he vied for a council seat and lost in the elections. He became a councilor in 1980 and served in the Council until 1983, when the Council was disbanded. Between 1983 and 1991, he was a businessman. In 1991, all the elected councilors were returned to the Commission. Between 1983 and 1991, the Chairman of the Commission was Mr. Gumo. He became the Chairman of the Nairobi KANU Branch around 1996/1997. He held the post for 2 years. He became the Chairman of the Nairobi Water Board in 1997 or thereabouts. 122. The land allotted to the 2nd Defendant by the Nairobi City Commission was plot No. 83/530. The oer was to be accepted and payment made within 30 days. The allotment was accepted within 30 days through a letter dated 19th August 1992. The form of transfer dated 13th October 1995 referred to a consideration of Kshs.1,800,000/- paid by the 2nd Defendant. The Commission did not pay the sum of Kshs.3,442,610/- in its letter of allotment. The payment was made by the 2nd Defendant. The 2nd Defendant had a receipt for this payment, but did not produce it. The 2nd Defendant paid the said sum of Kshs.3,442,610/- in two instalments on 26th July 1995 and 27th July 1995. The payments were made about 3 years after the letter of allotment to the Commission. Wazee Makadara Self Help Group’s letter of allotment dated 5th September 1998, referred to Residential Plot Umoja Innercore Sector IV – Plot No. IV. He could not recall if there was a scheme at that time. A scheme was subject to a survey before parcel numbers were issued. The letter of allotment to the Plaintis did not have a parcel number. The plaintis were issued with a certicate of lease in respect of plot No. 83/893 on 27th October 2005. The lessor was indicated as the Nairobi City Council, and the lessee as Wazee Makadara Self Help Group (the group). The lease was for a term of 99 years with eect from 1st January 1994. The Plaintis were indicated as the rst registered owners. Parcel No. 530 was duplicated in plot No. 16 in 2010. Parcel No. 530 had already been given to the 2nd Defendant earlier. 123. He was not allocated land irregularly in Nairobi when he was the Chairman of the Commission. The other director of the 2nd Defendant was his son. The 2nd Defendant acquired the suit property while he was in oce as the chairman of the City Commission. He did not take the Plaintis to court to intimidate them. The Council was not favouring him because of the position that he held. He was not intimidating the Plainti. This suit was commenced when the 2nd Defendant had had a title for the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 29

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suit property for 10 years. The 2nd Defendant acquired its title in 1995. He was not in the Nairobi City Commission then. He left the Commission in 1992. 124. DW1 Habib Omar Kongo stated as follows in cross-examination by the advocate for the 4th Plainti: He was the Managing Director of the 2nd Defendant, a position he had held since 1993. The 2nd Defendant was registered in 1992 by his son and another person. He was in the Commission then. He was not a director of the 2nd Defendant. He was an appointed Managing Director. He had not produced a resolution authorising him to represent the 2nd Defendant. He was not aware whether the report of the Public Accounts Committee of the County Assembly on the issue of the ownership of plot No. 83/530 and plot No. 83/893 was published. The Nairobi City County withdrew the report by C. W. Wamutitu. As the chairman of the Commission, he did not allocate land. He could remember the Silver Springs case, which was pending in court. 125. DW1 Habib Omar Kongo stated as follows in re-examination by the advocate for the 1st Defendant: He expected that he would be invited to accompany Ms. Wamutitu to the ground. He did not even know the plot she visited. The parcel of land, Nairobi Block 83/893, referred to in Ms. Wamutitu’s report, was not the land owned by the 2nd Defendant. Plot No. 83/530, which had a mosque, was a specialpurpose plot No. 16, which was erroneously given land reference No. 83/530 (duplication). What was to be corrected was RIM in respect of Nairobi Block 83, prepared on 16th June 2010, which duplicated the 2nd Defendant’s parcel No. 83/530. He joined the Nairobi City Commission in 1991 and served until 1992. There were many Commissions before 1991. The Commissions were appointed. Between 1983 and 1990, he was not in any of the Commissions that ran Nairobi City. 126. The payment of the charges in the letter of allotment dated 6th August 1992 was made by the 2nd Defendant in 1995. The Government did not cancel the letter of allotment on account of late payment. The 2nd Defendant would not have been issued with a title if it had not made the payment. He did not know when plot No. 83/893 was surveyed. What he knew was that the Plaintis had copied the 2nd Defendant’s survey information in their documents. The survey map F/R No. 224/20 that created plot No. 83/893 was prepared in 1992. The Plaintis' letter of allotment that was issued on 5th September 1998 should have mentioned the land by its parcel number. This failure meant that the survey map was a fraud and was not for parcel No. 893. No one from the 2nd Defendant had challenged his authority to appear in court on its behalf. 127. DW1 Habib Omar Kongo stated as follows on examination by the court: The 2nd Defendant paid Kshs.1,800,000/- mentioned in the form of transfer to the Nairobi City Council for the allotment of the property to the 2nd Defendant by the Council. The 2nd Defendant was given a letter of allotment by the Council, which he had not produced in evidence. The letter dated 29th September 1995 by the Council to the Commissioner of Lands at page 6 of D.EXH. 3 referred to an agreement for lease dated 21st September 1992 between the 2nd Defendant and the Council. When there was a delay in the issuance of a title, the 2nd Defendant entered into a lease with the Council on 21st September 1992, which was registered. 128. The 2nd Defendant called Livingstone Kamande Gitau (DW2) as its second witness. DW2 stated as follows in his evidence in chief: He was a surveyor in the private sector. He worked in the public sector for some time. He was also known as L.K. Gitau. He recorded a witness statement led in court on 29th June 2015, which he adopted as part of his evidence in chief. He was the one who wrote the letter dated 28th September 2011 at page 175 of D.EXH. 3. He was engaged by the 2nd Defendant to conduct a subdivision of plot No. 83/530. He did not know a group known as Wazee Makadara Self Help Group (the group). He had never dealt with them. He was the one who prepared the survey plan No. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 30

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F/R 313/39 for plot No. 83/893. The instructions from the 2nd defendant were in respect of plot No. 83/530. 129. He was familiar with the other survey plan F/R No. 313/39 at page 43 of D.EXH. 3. It was the same survey plan that he had referred to earlier. In this survey plan, they had not indicated the original parcel of land being subdivided. The plots were, however, indicated as 899 – 1222. The F/R number was the same. It was he who did this subdivision. He signed the survey plan. The earlier survey plan was not signed by him. He prepared this subdivision plan for the 2nd Defendant and not for Wazee Makadara Self Help Group. He normally prepared the survey computations. It was not true that plot No. 83/530 was a small plot with a mosque. The documents at pages 34, 35 and 36 of D.EXH. 3 were called area lists, which they produced. In the area list, they start with number one to the last. The Survey of Kenya, however, does its own numbering. The documents at pages 43 to 45 of the Plainti’s bundle of documents were unknown to him. They were just a list of plot numbers with no other details. The other documents at pages 39 to 42 of the same bundle were area lists in respect of plots forming Block 83. What he surveyed was plot No. 530. These documents had not referred to plot No. 893. The plot No. 530 referred to here, which measured 0.6212hectares was not the plot that he surveyed and subdivided. A client who wants to carry out a subdivision must provide the surveyor with an approved subdivision scheme and a letter of approval from the Commissioner of Lands. They normally do not require the minutes. What they require is an approval in form PPA 2. 130. In the subdivision he carried out, an approval was issued by the Commissioner of Lands on 15th May 2001 (see page 32 of D.EXH. 3). It was on the strength of the approval that he carried out the survey. He did not know plot No. 83/893 or Wazee Makadara Self-Help Group. He could not, therefore, have carried out a survey for them. Their survey plan bears only his name. He did not sign it. It was a mere copy of his survey plan done for the 2nd Defendant in respect of plot No. 530. 131. Livingstone Kamande Gitau(DW2) stated as follows on cross-examination by the advocate for the 1st to 3rd Plaintis: The 2nd Defendant did not give him instructions in writing. It, however, supplied him with the necessary documents. He had been a surveyor for 50 years. After graduation, he worked with the Council for 6 months. He thereafter moved to private practice until 1978. From 1979 to 2010, he worked with Kenya Railways. After 2010, he joined his own rm, Development Survey Services. He formed the company in 1981. He knew Nairobi quite a bit. He did not know Umoja Inner core in detail. He was taken to plot No. 83/530 by a young man who was with the 1st Defendant. He showed him the land. He also got the survey maps from the Survey of Kenya to satisfy himself that that was the correct parcel of land. He did not carry out a survey in respect of plot No. 83/893. He just led the survey plans. The survey plan with respect to plot No. 83/893 did not bear his signature or name. After he led the survey plan, it was the Director of Surveys who lled in the details. Survey plan F/ R No. 313/39 did not bear the original parcel number but had subdivisions 899 – 1222. This survey plan was not signed by him. 132. The Director of Surveys is the custodian of survey maps. The original number is not lled by the Director of Surveys. He did not take ownership of the survey plan F/R No. 313/39. The survey plan shown to him earlier was more authentic, save for the portion that referred to parcel No. 893, which was lled by the Director of Surveys. Survey plan F/R No.224/20 at page 42 of D.EXH. 3 was for plot No. 530. The purpose of this survey was to excise the two (2) small plots on the top right and below to create plot No. 530 (See P.EXH. 15). The survey was intended to create plot No. 530. He was unable to say what reference numbers were given to these plots. The measurement of parcel No. 530 was given as 9.422 hectares. He could see the alteration. He could also see the cancellation of the grid on top. The grid was just to help plot the corners of the plots. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 31

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133. They normally send a transparent copy of the plan to the Director of Surveys. Once the Director of Surveys approves the plan, a linen copy is prepared and approved. He could see that this plan was approved and authenticated. The preliminary details were not given. The columns for checkers were not lled. A linen map is dicult to alter. The alterations he could see were coming from a transparent survey plan. The parcel numbers are usually inserted by the Director of Surveys. 134. On re-examination, DW2 stated that he did not survey plot No. 83/893, and he did not know where it came from. In P.EXH. 15, there were two (2) excisions. All that was done was to excise the two plots and get the bigger plot. The parcel from which these plots were excised was not indicated. Before the excision, this plot was not plot No. 530. In the survey plan at page 43 of D.EXH. 3, two parcels could be seen at the top and middle, which were blank. These were not part of plot No. 530. 135. The 2nd Defendant’s next witness was John Ndirangu Kariuki (DW3). DW3 stated as follows in his evidence in chief: He had recorded a witness statement led in court on 29th June 2015, which he adopted as part of his evidence in chief. He stated that he did not sign the lease at page 56 of the Plaintis’ supplementary list of documents led on 23rd January 2019. He was not the mayor of Nairobi in 2005. The document was not signed by the mayor. He was not familiar with the two signatures in the document. The signature purporting to be his was not his signature because he did not sign such a lease. He did not deal with the Plaintis. He was not aware of any meeting at which the Council approved the subdivision of plot No. 83/893 in favour of the Plaintis. 136. John Ndirangu Kariuki (DW3) stated as follows in cross-examination by the advocates for the 1st to 3rd Plaintis: He was seeing the 2005 lease for the rst time. He could not refer it to the document examiner because he had not seen it. He was sitting in the full council meeting. He was not sitting in the Town Planning Committee. He did not know all the Self-Help Groups in Nairobi while he was the mayor. He did not know the Plaintis, and as such, he would not report them for fraud. 137. The 2nd Defendant’s next witness was Benson Ndegwa Gichohi (DW4). DW4 stated as follows in his evidence in chief: He was working with the Nairobi City Council in Urban Development and Planning. The department was initially referred to as the City Planning Department. He had worked in the department for 34 years. When an owner of the land wants to subdivide land, he will apply to the County for approval through a registered Physical Planner. That is what used to happen even before the County came into being. He could see the minutes of the Town Planning Committee meeting held on 1st February 2001 approving the subdivision of plot No. 83/530 Umoja Innercore at the instance of Aviton Enterprises Ltd. After an approval, a notication is sent out to the applicant in Form P.P.A. 2. The approvals by the Town Planning Committee were normally conrmed at a full Council meeting. He had not seen any other approval in favour of the Plaintis. He had also not seen in their records a notication issued to the Plaintis of an approval of their subdivision application. The survey computations in favour of the Plaintis were not approved by the Council. They could only be approved by the Survey of Kenya. They only issued beacon certicates. It was possible to issue a certicate of subdivision for one plot only, but it was rare. It was only issued where an applicant was not prepared to meet the conditions for all the plots. According to the minutes in their possession, the subdivision approval that was given was for plot No. 83/530, and the applicant was the 2nd Defendant and not the Plaintis. They did not have in their records the letter of allotment in favour of the Plaintis (P.EXH. 1). The Beacon Certicate produced by the Plaintis (P. EXH. 2), was incomplete. It was not signed by the Chief Land Surveyor. They were not aware of Plot No. 83/893 owned by the Plaintis. 138. On cross-examination by the advocate for the 1st Defendant, DW4 stated that he did not know Urbanus Munguti (PW 5). When shown the report produced by PW5 as P.EXH. 17, DW4 stated that his department was not approached to determine the status of the suit property. He stated that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 32

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all development applications must be approved by the technical committee in their department. He stated that he knew Cecilia Wangare Wamutitu (PW 2). He stated that PW2 was the Chief Ocer in charge of the Land Sub-Sector in Nairobi City County Government. He stated that he was not familiar with PW2’s report at page 133 of D.EXH. 3. He stated that PW2 did not consult their oce. He stated that what he dealt with was plot No. 83/530. He stated that plot No. 83/893 could be a dierent parcel of land existing somewhere. He stated that they did not issue a letter of allotment for plot No. 83/893, and that was why he concluded that the land did not exist. The surveyor may have located it somewhere. 139. Benson Ndegwa Gichohi (DW4) stated as follows on cross-examination by the 1st to 3rd Plaintis: He was not David N. Gichohi. He had not recorded a witness statement. He came to give evidence on behalf of the Chief Ocer, Urban Planning. He could see the memo dated 27th June 2013 (P.EXH. 17). It was copied to the Director City Planning. He was not the Director of City Planning, but he was working in the department. He could see the Survey Report by Cecilia Wamutitu at page 133 of D.EXH. 3. There was nothing wrong with the conclusion made by the surveyor. He did not think there was Umoja Sector IV. He stated that Umoja Innercore had only Sectors 5 and 6. 140. The 2nd Defendant’s next witness was Erick Munene Kivara (DW5). DW5 stated as follows in his evidence in chief: He was a land surveyor working at the Ministry of Lands, Department of Surveys. He had worked in the department since 2012. He was in court to represent the Director of Surveys, who had received a summons to attend court. They checked their records with respect to plot No. 83/530 and plot No. 83/893. From their records, they had a request from the Commissioner of Lands to comment on a subdivision scheme in respect of plot No. 83/530. They did not receive a similar request in respect of plot No. 53/893. The correspondence regarding plot No. 53/893 concerned its existence. According to their records, they had plot No. 53/530, which was subdivided into approximately 270 plots. Upon subdivision, plot No. 53/530 ceased to exist, save only for record purposes. The letter dated 10th April 2001 from the Nairobi City Council to the Commissioner of Lands (page 27 D.EXH. 3) was copied to them and was in their records. The same applied to the letter at page 28 of D.EXH. 3 from the Director of City Planning. They also had in their records a copy of the letter dated 26th April 2001, at page 29 of D. EXH. 3. At page 30 of D. EXH. 3 was their response. They did not have in their records similar correspondence regarding the subdivision of plot No. 83/893. 141. He knew Pricilla Wango. They worked in the same Ministry. She was his boss. In their Survey Department, they had S.R.O., which meant Survey Records Oce. It was based at the Ruaraka Survey of Kenya oce. There used to be a survey oce at Ardhi House several years ago. All survey services were transferred to the Survey Oce at Ruaraka. As of 2023, there was no Survey Oce at Ardhi House. He had a certied copy of the survey plan produced as P.EXH. 15. It was in respect of Block 83/530. It was F/R No. 224/20. According to the survey plan, the land measured 9.422 hectares. He could see some cancellation in the measurements. The same also appeared in his copy. Whenever there was an error, they would cross it. They did not erase it. He could see Provisional Approval No. CT/330T/OIA. They gave this number in their survey inward registry. He could see P.EXH. 16. This was also a survey plan said to be of Plot No. 83/893. This was a survey plan, F/R No. 224/20. The measurement of the parcel of land was 9.422 hectares. This survey plan was similar to the survey plan produced as P.EXH. 15. The only dierence was the parcel number. It was not normal to have similar survey plans for two dierent parcels. In this case, there should have been two survey plans. The latter survey plan for parcel 83/893 was not in their records. He did not come across it. They were the custodians of survey plans. If the document was found elsewhere, then it was a forgery. He could see the survey plan at page 43 of D.EXH. 3. He had a copy in their oce. The survey plan was F/R No. 313/39. It was in respect of parcel Nos. 83/899 – 1222. It was in respect of the subdivision of plot No. 53/530. He did not have a similar survey plan for plot No. 83/893. He could see the document at page https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 33

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38 of D EXH. 3 bearing subdivision numbers 899 – 1222 and the old number 530. The document was from their oce. It was addressed to surveyor L. K. Gitau. The letter at page 167 of D EXH. 3 from the Director of Surveyors to the 2nd Defendant was written by Z. T Kanunu. Z. T Kanunu had retired. Z. T Kanunu stated in the letter that plot No. 83/893 did not appear in the survey plan F/R No.313/39. The letter at page 171 of D. EXH. 3 was from the Director of Surveys. It was written by Polly Gitimu. Polly Gitimu stated that plot No. 83/893 was not in the survey plan, F/R No. 224/20. The letter dated 3rd July 2015, at page 18 of D.EXH 3, from the Director of Surveys to the County Criminal Investigations Department, explained plot No. 83/893 and plot No. 83/530. The Director of Surveys mentioned that there was a duplication of parcel No. 530. The letter conrmed that plot No. 83/893 did not exist in the survey records. He could see the survey plan F/R No. 211/68 for parcels No. 530 to 618. He had the same survey plan in his le. He could see plot No. 83/530 with a measurement of 0.6212 hectares. He had seen the other parcel No. 83/530, which measured about 9 hectares. This was an anomaly. This was a duplication or an error that occurred during the allocation of parcel numbers. The process was being done manually. The two parcels of land were dierent. The original parcel that gave rise to this plot No. 83/530 was a new Grant. The other one was also a new Grant. 142. The small land parcel 83/530 was given its parcel number in 1990. The larger land parcel 83/530 was given the parcel number in 2001. The larger plot No. 83/530 was subdivided and given new numbers. The owner of plot No. 83/530, which was small in size, still had a title that should be corrected. The letter he had referred to talked of a planned correction of the title. He did not know if the correction had been done. He knew J. M. Mwaniki. He was Senior Assistant Director of Surveys. In his letter dated 11th December 2008, he stated that plot No. 83/893 was a small plot measuring 0.560 hectares. He conrmed that we had no records for the subdivision of plot No. 83/893. 143. DW5 Erick Munene Kivara stated as follows in cross-examination by the advocate for the 1st Defendant: They did not have an oce at the Director of Surveys, known as SPRO. The SPRO oce was at Ardhi House. He had not worked in that oce. He was not sure of what they were doing in that oce. He did not know the kind of records that were kept there. A Blueprint copy of a survey plan is a copy of the original. The Director of Surveys keeps the original survey plans. When a proprietor of land wants a copy of a plan, they give him a Blueprint copy. They did not have the original of the survey plan for plot No. 83/893 at the Survey of Kenya. He could see what was referred to as the survey computations in the Plainti’s bundle. They were actually not survey computations but an area list. They were the authors of area lists. The list is prepared at the point of preparing the RIM or amending the RIM. He had not seen any area list for plot No. 83/893. 144. The le for the subdivision of plot No. 83/530 had been tampered with. There was, however, a subdivision. They had the original survey plan No. F/R 224/20. The Folios and Registers are unique numbers that they use to identify survey plans. The survey plan for the small plot No. 83/530 was authenticated in 1994. He was not aware of why the authentication was delayed. The survey plan No. 224/20 for the larger Plot No. 83/530 was authenticated on 28th May 1992. When it was authenticated, they had been supplied with all the required information and documents. The Blueprint for plot No. 83/530 should not have been certied by Pricila Wango because the Director of Surveys did not have the original survey plan in their custody. There was a duplication of parcel No. 530. He could not blame the duplication on any of the owners of the two plot No. 530s. It was the survey oce to blame. 145. The records at the SPRO could not override the records at the Survey of Kenya as concerns the Survey records. As far as he was concerned, both plans F/R No. 211/68 and F/R 220/20 were authentic. The problem was the duplication of parcel No. 530. If plot No. 83/893, claimed by the Plaintis, was subdivided in 2001, the title held by the Plaintis could not have been issued in 2005. This is because a title must be surrendered upon subdivision. According to the Plaintis’ letter of allotment for plot https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 34

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No. 83/893 dated September 1998, the allotment seemed to have been done after the survey, which was not normal. 146. DW5 Erick Munene Kivara stated as follows in cross-examination by the advocate for the 1st to 3rd Plaintis: Pricila Wango was his senior at work. He did not consult her before he came to court. He was not told that she had testied in the matter. Survey plans are prepared by private licensed surveyors and approved by the Director of Surveys. One of the survey plans for parcel No. 83/530 was prepared by the Director of Surveys. A private surveyor has to submit the survey to the Director of Surveys for approval. He had seen the area lists that were referred to him, which began with parcel No. 530. This was prepared by the Director of Surveys. It was in respect of survey plan F/R No.211/68. He saw the survey plan. The area list corresponded with the survey plan. They had documents in their records. He could see that this survey plan, F/R 211/68 was prepared by a private surveyor. He had seen the original of F/R 224/20. It was in Duralm. Some originals were in a linen map. Duralm was easy to alter, unlike the linen map. 147. A linen map can be altered, but it is hard to do so. He had seen the survey plan, F/R 224/20, for the larger parcel No. 83/530. He could see the alterations on the map. He could not tell who did the alterations. He did not nd the area list for the subdivision of plot No. 83/530 that gave rise to plot No. 899 – 1222. The whole subdivision le was missing. It was not proper for Pricila Wango to certify the Blueprint. He could see that the Blueprint (P.EXH.16) had no alterations. 148. The 2nd Defendant’s next witness was George Gitonga (DW6). DW6 stated as follows in his evidence in chief: He was a land registrar working at the court section in the oce of the Chief Land Registrar. He came to court pursuant to a court summons issued at the instance of the advocates for the Defendants. He had worked in that oce for 3 years. When land is subdivided, the original title should be surrendered. He could see the surrender of lease at page 37 of D.EXH. 3. The surrender was in consideration of the subdivision of Plot No. 83/530. The lease was surrendered. He had not seen any surrender in respect of the subdivision of parcel No. 83/893. He could see the certicate of lease (P.EXH. 9). The registered owner of the leasehold property was Wazee Makadara Self Help Group. A self-help group should hold land in the name of its oce bearers. The Chief Land Registrar, in a letter dated 24th April 2006, informed the Plaintis that they were holding an irregular title for plot No. 83/893 and asked them to surrender the same for cancellation. That position remained. He did not check their records for parcel No. 83/893. He only checked plot No. 839/530, whose records they had. 149. DW6 George Gitonga stated as follows in his evidence on cross-examination by the advocate for the 1st to 3rd Plaintis: He was not aware if any action had been taken by the Chief Land Registrar against the Plaintis. The process of subdivision can precede the surrender of title, but new titles cannot be issued for the subdivisions until the original title is surrendered. The land registry could not issue a title for the subdivisions until the mother title was surrendered. He knew Umoja Innercore Block 83. He did not know if the title for Block 83 was issued by the Commissioner of Lands to the City Council of Nairobi. He knew the Government could allocate land to the Council for development. The Commissioner of Lands could not re-allocate land that had already been allocated to the City Council. 150. The 2nd Defendant’s next witness was Rev. Simon Muhuko Maina (DW7). DW7 stated as follows in his evidence in chief: He was a church minister. He had been a minister with KAG Church for 30 years. He adopted his witness statement led on 16th September 2015 as his evidence in chief. He identied D.EXH. 4 as the agreement that KAG entered into with the 2nd Defendant. He stated that KAG bought a portion of plot No. 83/530. Their portion was plot No. 83/899, which the 2nd Defendant transferred to them. They purchased the land from the 2nd Defendant. The Plaintis were known to him, but they never dealt with them in relation to plot No. 83/899. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 35

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151. Rev. Simon Muhuko Maina (DW7) stated as follows in his evidence on cross-examination by the advocates for the 1st to 3rd Plaintis: They purchased plot No. 83/899. They had a title for the plot in their name. He did not carry it with him. The agreement dated 2nd May 2000 between KAG and the 2nd Defendant referred to a portion of plot No. 83/899. They did due diligence in respect of plot No. 83/530 before purchasing a portion thereof. They did a search on the title. He had a copy of the search on plot No. 83/530. According to the search, the property measured 0.166 hectares. At the time they purchased a portion of plot No. 83/530, there was a proposed subdivision scheme, but the subdivision had not been done. He heard from the CID that there was another property known as plot No. 83/893. He did not see a title deed for plot No. 83/893. They did not purchase a portion of plot No. 83/893. When they purchased the plot from the 2nd Defendant, what they were shown was a proposed subdivision scheme for plot No. 83/530. They paid stamp duty in 2013. In the same year, they were issued a certicate of lease. They paid Stamp Duty through the 2nd Defendant. 152. In re-examination by the 2nd Defendant’s advocate, DW6 stated as follows: According to the search they conducted, plot No. 83/530 measured 0.166 hectares, which was an error. That measurement was for the portion of plot No. 83/530 that they purchased. The total area for plot No. 83/530 was 9.7 hectares. The submissions 153. After the close of evidence, the parties were directed to make written closing submissions. On 28th January 2025, the Interested Parties led an application brought by way of Notice of Motion dated 23rd January 2025 seeking leave to be added to the suit as interested parties. The court granted leave to the applicants to be joined in the suit as interested parties on condition that the proceedings of the court that took place before their joinder would not be set aside or varied to accommodate their joinder and that they would not lead evidence or le submissions in the matter. The Plaintis’ submissions. 154. The Plaintis led submissions dated 22nd January 2025. The Plaintis framed two issues for determination by the court namely; whether the Plaintis, Wazee Makadara Self Help Group was the lawful owner of the land parcel Nairobi/Block 83/893 (the suit property), and whether the certicates of leases in respect of land parcel Nairobi/Block/893 and land parcel Nairobi/Block 83/530 referred to the same parcel of land. 155. The Plaintis submitted that the suit property was allocated to them by the City Council of Nairobi. The Plaintis submitted that they were subsequently registered as the leasehold proprietors of the suit property and were issued with a certicate of lease by the Land Registrar in respect thereof. The Plaintis submitted that they acquired the suit property lawfully and had a right to own and enjoy the same. The Plaintis submitted that the Defendants failed to impeach the Plaintis’ title despite a spirited attempt. The Plaintis submitted that the Defendants failed to prove that the Plaintis acquired the suit property fraudulently or through forgery, as they alleged in their pleadings. 156. On the second issue, the Plaintis submitted that they placed evidence before the court showing that the suit property was distinct and separate from the land parcel Nairobi/Block 83/530. The Plaintis submitted that the suit property measured 9.422 hectares (approximately 23.161 Acres) and was created through a survey plan, F/R No. 224/20 dated 28th May 1992, with clear boundaries and beacons. The Plaintis submitted that the suit property had been subdivided through survey plan F/R No. 313/39 dated 19th December 2001 into a total of 324 plots, namely, Nairobi/Block 83/899-1222. The Plaintis submitted that the 1st and 2nd Defendants failed to prove that the land parcel Nairobi/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 36

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Block 83/530 Umoja Innercore Sector IV was allocated to the 2nd Defendant as the rst allottee, and subsequently to a mosque. The Plaintis submitted that the evidence adduced by the parties showed that the land parcel Nairobi/Block 83/530 existed but in Umoja Innercore Sector 1, and was the rst parcel of land to be assigned that parcel number in Umoja Innercore. 157. The Plaintis submitted that the land parcel Nairobi/Block 83/530(plot No. 530) measured 0.6212 hectares, and as such could not be the same as the land parcel Nairobi/Block 83/893, which measured 9.422hectares. The Plaintis submitted that plot No. 530 could not be subdivided into 324 plots. The Plaintis submitted that the survey plan No. F/R No. 313/39, relied on by the 1st and 2nd Defendants, was disowned by the said Defendant’s witness, DW3, who was alleged to have prepared the plan on their behalf. The Plaintis submitted that the survey plan for the second plot, No. 530, F/R No. 224/20, had several alterations in the measurements. The Plaintis submitted that the alterations were not countersigned by the surveyor as required under Regulation 96(2) of the Survey Regulations (Legal Notice No. 168 of 1994). 158. The Plaintis submitted that this was clear evidence that the 1st and 2nd Defendants had overlayed or superimposed their forged ownership documents on the suit property to make it look as if the 1st and 2nd Defendants’ alleged plot No. 530 was related to the suit property. The Plaintis submitted that the 2nd Defendant had failed to prove the legality of its title over plot No. 530. The Plaintis submitted that the purported plot No. 530 claimed by the 2nd Defendant had already been allocated to the City Council of Nairobi, which had already subdivided the same. The Plaintis submitted that the land was not available for allocation to the 2nd Defendant by the Commissioner of Lands. The Plaintis wondered under what circumstances the land that was allocated to the 2nd Defendant on 6th August 1992, with Kshs. 3,000,000/- as the Stand Premium was again transferred to the 2nd Defendant, 3 years later on 13th October 1995 at a consideration of Kshs. 1,800,000/-. The Plaintis also wondered how the land that was allocated to the 2nd Defendant by the National Government in 1992 could again be transferred to the 2nd Defendant by the Nairobi City Commission in 1995. 159. The Plaintis submitted that the 3rd Defendant had no power to issue titles for non-existent subdivisions of land. The Plaintis submitted that the 3rd Defendant acted illegally. The Plaintis cited several authorities in support of these submissions, which I have considered, and some of which I will refer to later in the judgment. The Plaintis submitted that the 1st and 2nd Defendants caused the Plaintis to be arrested and charged at Kibera Law Court with the oence of forgery of the Plaintis’ title, and the supporting documentation of which charge, the Plaintis were acquitted. The Plaintis submitted that the original documents, which were in their possession, were taken away. The Plaintis urged the court to note that there was evidence of document tampering at the Survey of Kenya and the Nairobi City County valuation department. 160. The Plaintis submitted that the evidence of PW2, PW3, PW4 and PW5 on the existence of the suit property was not controverted by the Defendants’ witnesses. The Plaintis submitted that DW3 disowned the 2nd Defendant’s survey plan and conrmed that it was the survey plan for the subdivision of the Plaintis’ land that he signed. The Plaintis submitted that the evidence adduced by the Defendants’ witnesses amounted to mere denials. The Plaintis submitted that the evidence corroborated the claim of superimposition of the 2nd Defendant’s second Plot No. 530 on the suit property owned by the Plaintis. The Plaintis submitted that they had proved their case on a balance of probabilities and were entitled to the reliefs sought in their re-amended plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 37

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The 1st Defendant’s Submissions. 161. The 1st Defendant led submissions dated 21st March 2025. The 1st Defendant framed four issues for determination by the court, namely; (a) Who is the owner of the disputed land? (b) Are the Plaintis entitled to the reliefs sought in the plaint? (c) Is the 2nd Defendant entitled to the reliefs sought in its counterclaim? (d) Who should pay the costs of the suit? 162. On the rst issue, the 1st Defendant submitted that, whereas the Plaintis claim to be the registered owners of land parcel Nairobi/Block 83/893 (suit property/plot No. 893), the 2nd Defendant claims to be the registered owner of land parcel Nairobi/Block 83/530 (plot No. 530). The 1st Defendant submitted that both the Plaintis and the 1st Defendant produced evidence in proof of their titles to the two parcels of land. The 1st Defendant submitted that the Plaintis, who claimed to have been allocated plot No. 893 for a term of 99 years, with eect from 1st January 1994, by the City Council of Nairobi/Nairobi City Commission, accused the 1st and 2nd Defendants of trespassing on the property and interfering with their legal and benecial interest in the land. 163. The 1st Defendant submitted that, on the other hand, the 2nd Defendant had claimed that plot No. 530 was allocated to it by the Government of Kenya for a term of 99 years, eective from August 1, 1992. The 1st Defendant averred that the 1st Defendant's claim against the Plaintis was that the Plaintis had, through fraud and forgery, laid a claim on the 2nd Defendant’s plot No. 530 together with its subdivisions, which they claimed to be their plot No. 893. 164. The 1st Defendant submitted that from the evidence adduced by the parties, both parties were claiming the same parcel of land on the ground. The 1st Defendant cited several authorities and submitted that it was important in the circumstances to examine the root of each title to determine whether the acquisition was legal. 165. The 1st Defendant submitted that the Plaintis did not provide the particulars of the alleged fraud, illegality or unlawfulness in the acquisition of the 2nd Defendant’s title, and the subdivision of the property contrary to the provisions of Order 2 Rule 10 of the Civil Procedure Rules. The 1st Defendant submitted that the evidence adduced by the Plaintis about the alleged forgery of documents and superimposition of the 2nd Defendant's plot on the Plainti’s property, and interference by the Defendants with the Plaintis' land, were not based on any evidence and must be rejected by the court. In support of this submission, the 1st Defendant cited Mellen Mbera v. James Theuri Wambugu [2020]eKLR. 166. The 1st Defendant submitted further that the Plaintis gave a contradictory account of how they acquired their plot No. 893. The 1st Defendant submitted that the Plaintis claimed in some of their documents produced in evidence that Plot No. 893 was sold to them by the 1st Defendant. The 1st Defendant submitted that PW1 also testied that Plot No. 893 was sold to the Plaintis by the 1st Defendant, the evidence which he later recanted, and claimed that the agreement they entered into with the 1st Defendant was not a sale agreement but an agreement on how they would process the title for the property. 167. The 1st Defendant submitted that the Plaintis had also claimed that Plot No. 893 was given to them by the 1st Defendant as a gift for having supported the 1st Defendant in his quest to become Nairobi Branch https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 38

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Kanu Chairman. The 1st Defendant referred the court to the document referred to as the Chairman’s Report dated 5th November 2003, which was produced as part of P.EXH.3. The court was also referred to PW1’s evidence in chief and on cross-examination by the advocate for the 1st Defendant. The 1st Defendant submitted that the Plaintis nally claimed that Plot No. 893 was allocated to them by the Nairobi City Commission/City Council of Nairobi, which owned the property. The 1st Defendant submitted that this claim was set out in paragraphs 14 and 15 of the amended plaint. The 1st Defendant submitted that the Plaintis gave three contradictory accounts of how they acquired plot No. 893. The 1st Defendant submitted that the contradiction in the Plaintis’ claim over Plot No. 893 was an indication of the level of fraud that was employed by the Plaintis in the purported acquisition of Plot No. 893. The 1st Defendant submitted that with all these contradictions, it could not be said that the Plaintis had properly explained the root of their title to Plot No. 893. 168. The 1st Defendant submitted further that the Plaintis did not explain why, in their letter of allotment issued in 1998, the parcel of land that was allocated to them was indicated as Plot No. IV-Unsurveyed Scheme, Umoja Innercore Sector IV, instead of plot No. 893, which was allegedly surveyed and created in 1992 under survey plan, F/R No. 224/20, which was authenticated by the Director of Surveys in 1992. The 1st Defendant submitted that it was this Plot No. IV-Unsurveyed Scheme, Umoja Innercore Sector IV, which the Plaintis claimed to be plot No. 893. The 1st Defendant submitted that if it was plot No. 893, which was allocated to the Plaintis, there was no reason why it was not stated as much in the letter of allotment. 169. The 1st Defendant submitted that the Plaintis' purported letter of allotment and survey plan No. F/ R 224/20 were both fraudulent, and as such, tainted the root of the Plaintis’ title. The 1st Defendant submitted further that a survey could not have been conducted in 1992 for an allocation which was done in 1998. The 1st Defendant submitted that there was no land in 1992 or 1998 known as plot No. 893, and that explained why the same was not indicated in the purported letter of allotment. 170. The 1st Defendant submitted that the report that was produced by PW6 had no evidential value as it was prepared by a deceased person and produced by a person who never participated in the investigations. The 1st Defendant submitted that although the report claimed that the land parcel known as Umoja Innercore Block 83 was leased by the Government of Kenya to the City Council of Nairobi (the Council) in 1978, no evidence was placed before the court in proof of the allegation. The 1st Defendant submitted that apart from the purported lease, which was fraudulent, the Plaintis produced nothing else to support their claim that their title had its root in a lease from the Council. The 1st Defendant submitted that the purported lease was not produced in evidence. The 1st Defendant submitted that the Plaintis never demonstrated that the Council was the head lessor and the Plaintis, the sublessees. 171. The 1st Defendant submitted that there was no evidence that the certicate of lease that was issued in the name of the group, dated 27th October 2005, was surrendered to the land registrar before another certicate of lease of the same date was issued in the name of the trustees of the group. The 1st Defendant also wondered how the two certicates could have the same date while they were not issued on the same day. The 1st Defendant submitted further that the purported subdivision of plot No. 893 was a sham and a fraud. The 1st Defendant submitted that there was no way in which Plaintis could have subdivided plot No. 893 in 2001, and even managed to get a title for one of the subdivisions, Nairobi/Block 83/893/952, while the title for plot No. 893 was not issued to them until 2005. 172. The 1st Defendant submitted that the subdivision survey plan, F/R No. 313/39, which the Plaintis claimed to be the subdivision plan for their plot No. 893, was for the 2nd Defendant’s plot No. 530. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 39

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1st Defendant submitted that the survey plan was registered on 26th November 2001 and authenticated on 19th December 2001. The 1st Defendant submitted that since plot No. 893 was private land allegedly owned by the Plaintis, a title had to be in existence before it could be subdivided. The 1st Defendant submitted that L.K.Gitau, who allegedly surveyed plot No. 893, denied having surveyed plot No. 893. The 1st Defendant submitted that his testimony was that the survey plan No. 313/39 was for plot No. 530 owned by the 2nd Defendant and not plot No. 893. 173. The 1st Defendant submitted that, unlike the 2nd Defendant, the Plaintis placed no evidence before the court showing that the subdivision approval was granted to them by the Council and that it surrendered its certicate of lease for plot No. 893 in consideration of the subdivision. The 1st Defendant submitted that the Plaintis’ subdivision certicate bore the information regarding the approval of the 2nd Defendant’s subdivision of plot No. 530. 174. The 1st Defendant submitted further that various Government oces, such as the Director of Surveys, the Ministry of Lands, and the City Council of Nairobi, all disowned plot No. 893 and the allocation thereof to the Plaintis. The 1st Defendant submitted that even the Nairobi City Commission, which was alleged to have allocated plot No. 893 to the Plaintis on 5th September 1998, was not in existence at the time. The 1st Defendant submitted that there was also no evidence that the Plaintis complied with the terms of the alleged letter of allotment regarding payments. 175. The 1st Defendant submitted that the 2nd Defendant’s title was rst in time. The 1st Defendant submitted that it had not only proved that the survey plan produced by the Plaintis was a sham and a fraud, but he had also demonstrated that the 2nd Defendant’s title was issued rst in 1995, while the Plaintis’ title was issued 10 years later in 2005. The 1st Defendant submitted that the 2nd Defendant had produced credible evidence on the root of its title to plot No. 530. The 1st Defendant submitted that it was also demonstrated that there was a duplication of parcel number 530, an error that was admitted by the Director of Surveys, who promised to attend to it. 176. The 1st Defendant submitted that the Defendants had demonstrated that the 2nd Defendant had a title to the land in question, while the Plaintis had no land on the ground. The 1st Defendant submitted that since the Plaintis had no title to the disputed land, and had no land on the ground, it could not maintain an action for trespass against the Defendants. The 1st Defendant submitted that, being a holder of a title to the land in dispute and having been in possession of the land before its subdivision, the 2nd Defendant could maintain an action for trespass against the Plaintis. The 1st Defendant submitted that the reliefs sought by the Plaintis could not be granted since the Plaintis had not proved their case. The 1st Defendant submitted further that granting the orders sought by the Plaintis would also aect the rights of the third parties who had purchased the subdivisions of Plot No. 530, who were not parties to the suit. The 1st Defendant submitted that granting the orders sought would amount to condemning the said parties unheard. The 1st Defendant urged the court to dismiss the Plaintis’ suit and allow the 2nd Defendant’s counterclaim, which had been proved with costs to the Defendants. The 2nd Defendants’ Submissions 177. The 2nd Defendant led submissions dated 8th April 2025. The 2nd Defendant framed the following issues for determination by the court; a. Whether the Plaintis had the locus standi to le this suit; b. Whether the suit is time-barred; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 40

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c. Whether the title for the land parcel, Nairobi/Block 83/893, is lawful and owned by the Plaintis; d. Whether the 2nd Defendant is the proprietor of the land parcel, Nairobi/Block 83/530, and whether the 2nd Defendant subdivided the property; e. Whether the Plaintis trespassed on the land parcel, Nairobi/Block 83/530; f. Whether the non-joinder of the third parties to the suit is fatal to the Plainti’s claim; and g. Who should pay the costs of the suit? 178. On the rst issue, the 2nd Defendant submitted that a Self-Help Group is not a corporation and, as such, is not capable of instituting a suit in its own name. The 2nd Defendant submitted that a SelfHelp Group can only le a suit in the name of its ocials. The 2nd Defendant submitted that the said ocials must demonstrate that they are the ocials of the group, and that they have authority to institute the suit on their own behalf and on behalf of the other members of the group. In support of this submission, the 2nd Defendant cited Kipsiwo Community Self-Help Group v. A.G & 6 Others [2013]eKLR. 179. The 2nd Defendant submitted that the Plaintis did not produce a certicate of registration of Wazee Makadara Self Help Group(group). The 2nd Defendant submitted that the Plaintis did not produce any document to prove that they were the ocials of the group. The 2nd Defendant submitted that the 4th Plainti was a stranger to the group. The 2nd Defendant submitted that he never testied, and there was nothing connecting him to the property in dispute. The 2nd Defendant submitted that none of the Plaintis, save for the 1st Plainti, had his name on the certicate of title for plot No. 893. The 2nd Defendant submitted that the Plaintis, whose names were not on the certicate of lease for plot No. 893, had no nexus to the property. The 2nd Defendant submitted that the Plaintis had not demonstrated that they had any locus standi to le the suit. The 2nd Defendant submitted that this ground alone was sucient to dismiss the Plaintis' suit. 180. On the issue of the time bar, the 2nd Defendant submitted that the Plaintis’ claim was based on the torts of fraud and trespass. The 2nd Defendant submitted that, according to the Plaintis’ pleadings and testimony, the 1st and 2nd Defendants’ interference with the Plaintis’ land parcel, No. 893, took place in 2000. The 2nd Defendant submitted that the Plaintis also alleged that the 1st and 2nd Defendants attempted to subdivide plot No. 893 in 2004, but failed, and that it was not until February 2006 that the 1st and 2nd Defendants succeeded in subdividing the plot and placing the beacons thereon. 181. The 2nd Defendant submitted that the Plaintis’ cause of action arose in 2000, and there was a repetition of the same cause of action in 2004 and 2006. The 2nd Defendant submitted that under Section 4 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, the Plaintis' suit should have been brought within 3 years from the date of the cause of action. The 2nd Defendant submitted that the Plaintis’ suit should have been led by 26th February 2006. The 2nd Defendant submitted that this suit, which was led in 2010, is time-barred. The 2nd Defendant submitted that the Plaintis led a suit against the 1st Defendant in 1996, namely, Nairobi HCCC No. 193 of 2006, which they withdrew before ling the present suit out of time in 2010. 182. On the issue of the validity of the title for plot No. 893, and the ownership thereof by the Plaintis, the 2nd Defendant submitted that from the totality of the evidence adduced by the Defendants, plot No. 893 did not exist. The 2nd Defendant submitted that the parcel of land that existed was plot No. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 41

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530, on which the Plaintis attempted to superimpose the alleged plot No. 893. The 2nd Defendant referred to several correspondences from the Director of Surveys between 2006 and 2015 in which the Director of Surveys consistently held that plot No. 893 did not exist, and that the parcel of land in existence was plot No. 530. The 2nd Defendant submitted that the existence of plot No. 893, and its purported subdivision, was also denied by the City Council of Nairobi. 183. The 2nd Defendant submitted that the Plaintis’ letter of allotment dated 5th September 1998, alleged to be for plot No. 893, was also disowned by Zipporah Wandera, who was alleged to have signed it. The 2nd Defendant submitted that although the Plaintis alleged to have been issued with a lease by the City Council of Nairobi, the lease was never produced in evidence. The 2nd Defendant submitted that the then mayor of the City of Nairobi, John Ndirangu Kariuki (DW3), who was alleged to have signed the lease, disowned the same. The 2nd Defendant submitted that the then Town Clerk of the City of Nairobi, Godfrey Mate, also denied having signed the lease. The 2nd Defendant submitted that the existence and the legality of plot No. 893 were also disowned by the Ministry of Lands. 184. The 2nd Defendant submitted that even the Plaintis themselves were unable to establish the existence and the legality of plot No. 893. The 2nd Defendant submitted that the Plaintis gave conicting accounts of how they acquired plot No. 893. The 2nd Defendant submitted that the Plaintis’ title documents, which they received from a go-down in Nairobi rather than from the oces of the City Council of Nairobi, could not be legitimate. The 2nd Defendant submitted that the Plaintis did not give an unbroken account of how they acquired plot No. 893 through allotment. The 2nd Defendant submitted that the Plaintis did not meet the threshold of proof of valid acquisition of a title to land through allotment outlined in Ali Mohamed Dagane v. Hakar Abshir & 3 Others[2021] KEELC 3604(KLR). 185. The 2nd Defendant submitted that the letter of allotment produced by the Plaintis in evidence also had no second page and was not signed. The 2nd Defendant submitted that the letter of allotment was purportedly issued by the Nairobi City Commission, which was not in existence in 1998. The 2nd Defendant submitted that there was no actual allotment and that the purported allotment was to Makadara Self Help Group and not Wazee Makadara. The 2nd Defendant submitted that the Plaintis did not also produce a Part Development Plan (PDP) on the basis of which the allotment was done. 186. On whether the 2nd Defendant was the proprietor of the land parcel, Nairobi/Block 83/530, the 2nd Defendant submitted that the root of the 2nd Defendant’s title was clear and supported by evidence. The 2nd Defendant submitted that through its witnesses, it demonstrated the root and authenticity of its title to plot No. 530 and its subdivisions. On whether the Plaintis trespassed on plot No. 530, the 2nd Defendant submitted that the Plaintis not only made a claim over plot No. 530, which they alleged to be their plot No. 893, but also attempted to take possession of the same. The 2nd Defendant submitted that the Plaintis had trespassed on the 2nd Defendant’s land, and still had a desire to acquire the land. The 2nd Defendant submitted that it had laid a basis for the permanent injunction sought against the Plaintis. 187. On whether the non-joinder of the third parties to the suit was fatal to the Plaintis’ claim, the 2nd Defendant submitted that the Plaintis were claiming land that had been subdivided and portions transferred to third parties. The 2nd Defendant submitted that it had placed before the court evidence of several titles that had been issued to third parties. The 2nd Defendant submitted that the Plainti should have joined these third parties to the suit, as they were seeking to have their titles cancelled. The 2nd Defendant submitted that the court cannot cancel titles held by third parties without hearing them, and in a suit in which they are not parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 42

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188. In a rejoinder to the Plaintis’ submissions, the 2nd Defendant downplayed the evidence of PW2. The 2nd Defendant submitted that PW2 did not involve the 2nd Defendant in her investigations and inquiries. The 2nd Defendant submitted that PW2 went to the ground alone without the 2nd Defendant’s representative. The 2nd Defendant termed her evidence one-sided and partisan. The 2nd Defendant submitted that it registered its protest against PW2’s report. The 2nd Defendant submitted that PW2’s evidence was contrary to all the other evidence from the Nairobi County Government on the dispute. The 2nd Defendant submitted that the evidence of PW4 and PW5 was unreliable. The 2nd Defendant submitted that the investigations conducted by the two witnesses were done in a partisan manner. 189. On the issue of costs, the 2nd Defendant submitted that costs follow the event. The 2nd Defendant urged the court to dismiss the Plaintis’ suit and allow the 2nd Defendant’s counterclaim with costs of the suit and the counterclaim to the Defendants. Analysis and Determination. 190. I have considered the pleadings, evidence, and submissions by the parties. The following, in my view, are the issues arising for determination in this suit; a. Whether the Plaintis are the lawful owners of the land parcel No. Nairobi/Block 83/893 claimed by the 1st and 2nd Defendants to be the land parcel No. Nairobi/Block 83/530, and its subdivisions. b. Whether the 2nd Defendant is the lawful owner of the land parcel No. Nairobi/Block 83/530, claimed by the Plaintis to be the land parcel No. Nairobi/Block 83/893, and its subdivisions. c. Whether the land parcel No. Nairobi/Block 83/893 claimed by the Plaintis and the land parcel No. Nairobi/Block 83/530 claimed by the 2nd Defendant are at the same location on the ground, or in other words, whether land parcel No. Nairobi/Block 83/893 claimed by the Plaintis and the land parcel No. Nairobi/Block 83/530 claimed by the 2nd Defendant are the same parcel of land on the ground. d. Whether the 1st and 2nd Defendants trespassed on the Plaintis’ land parcel No. Nairobi/Block 83/893 claimed by the 1st and 2nd Defendants to be the land parcel No. Nairobi/Block 83/530. e. Whether the Plaintis trespassed on the 2nd Defendant’s land parcel No. Nairobi/Block 83/530, claimed by the Plaintis to be the land parcel No. Nairobi/Block 83/893. f. Whether the Plaintis are entitled to the reliefs sought in their re-amended plaint. g. Whether the 2nd Defendant is entitled to the orders sought in its counterclaim. h. Who is liable for the costs of the suit and the counterclaim? 191. Whether the Plaintis are the lawful owners of the land parcel No. Nairobi/Block 83/893 claimed by the 1st and 2nd Defendants to be the land parcel No. Nairobi/Block 83/530. 192. As mentioned earlier in the judgment, the Plaintis claimed in their re-amended plaint that they were the registered owners of the leasehold parcel of land known as Nairobi/Block 83/893, measuring 9.7 hectares (plot No. 893). The Plaintis averred that they had subdivided plot No. 893 into 324 plots, namely, Nairobi/Block 83/899-1222. The Plaintis averred that in 2001, the 1st and 2nd Defendants began interfering and trespassing on plot No. 893, claiming that plot No. 893 was the 1st and 2nd Defendants’ land parcel No. Nairobi/Bock 83/530(plot No. 530). The Plaintis claimed that the two https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 43

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parcels of land were separate and distinct. The Plaintis averred that on 27th February 2006, the 1st and 2nd Defendants entered plot No. 893 with a surveyor and purported to establish the beacons of the already subdivided land. The Plaintis averred that the 3rd Defendant had purported to issue the 1st and 2nd Defendants with certicates of leases for a total of 208 subdivided portions of plot No. 893. The Plaintis averred that the 1st and 2nd Defendants had no interest in plot No. 893 and, as such, their actions amounted to trespass. The Plaintis averred further that the said certicates of title issued to the 1st and 2nd Defendants were illegally and fraudulently acquired. 193. The Plaintis have accused the 1st and 2nd Defendants of trespass and illegal and fraudulent acquisition of the subdivisions of plot No. 893. To maintain the claims, the Plaintis had to prove their title to plot No. 893. The suit properties were registered under the Registered Land Act, Chapter 300 Laws of Kenya (now repealed). Sections 27 and 28 of the Registered Land Act, Chapter 300 Laws of Kenya (now repealed) provide as follows: 27. 28. Subject to this Acta. the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; b. the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.” The rights of a proprietor, whether acquired on rst registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject – a. to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and b. unless the contrary is expressed in the register, to such liabilities, rights and interests as aect the same and are declared by section 30 not to require noting on the register: Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.” 194. The foregoing sections have been reproduced in sections 24, 25 and 26 of the Land Registration Act 2012 as follows: 24. Subject to this Act— a. the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and b. the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 44

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25. (1) The rights of a proprietor, whether acquired on rst registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— a. to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and b. to such liabilities, rights and interests as aect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee”. (1) The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge, except— 26. 195. (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. It is the lawful registration and valid title to plot No. 893 that would give the Plaintis legal rights over the property and its subdivisions to the exclusion of the 1st and 2nd Defendants, who have been branded trespassers by the Plaintis. The burden of proof of the Plaintis' title to plot No. 893 was on the Plaintis. The same applies to the proof of the alleged acts of trespass and illegalities alleged against the Defendants. In Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14, the authors have stated as follows on the burden of proof: “ 3. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. 14. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satised. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 45

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196. In Miller v. Minister of Pensions [1947] 2 All ER 372, Lord Denning J. stated that: “ Thus proof on a balance of preponderance or probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained”. 197. The term fraud is dened in Black’s Law Dictionary, 9th Edition, as follows: “ Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, and intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a Court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or condence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”. 198. In Vijay Morjaria v. Nansingh Madhusingh Darbar & another [2000]eKLR, the court (Tunoi JA) stated as follows: “ It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 199. In Railal Gordhanbhai Patel v. Lalji Makanji [1957] EA 314, the court stated as follows at page 317: “ Allegation of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” 200. In the Court of Appeal, Fourth District, Division 1, California, in Ralphs Grocery Co. v. Victory Consultants Inc. (2017) 17Cal. App.5th 245, 261; CACI No. 2000, the court stated that: “ In the instant action, Appellants have sued Respondents for trespass. “Trespass is unlawful interference with possession of property.” (Staples v. Hoefke (1987)189 Cal.App. 3d 1397,1406). The elements of trespass are: (1) the plainti’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 46

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(5) 201. the defendant’s conduct was substantial factor in causing the harm. (See CACI No. 2000).” In Munyu Maina v. Hiram Gathiha Maina [2013] eKLR the Court of Appeal stated as follows: “ We state that when a registered proprietor’s root of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 202. In Hubert L. Martin & 2 Others v. Margaret J. Kamar & 5 Others[2016] eKLR, the court stated as follows: “ A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain…Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.” 203. In Torino Enterprises Limited v. Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment), the Supreme Court stated as follows in paragraphs 56 to 61: “ 56. Consequently, we nd that upon alienation to Kayole Estates Limited in 1964, the suit property was converted from un-alienated government land to private freehold land. There being no question as to the regularity and legality of the process by which the said land was alienated in favour of Kayole Estates Ltd, we nd and hold that the same was eectively divested from the purview of the regulatory regime of the Government Lands Act (now repealed). The Commissioner of Lands could therefore not have had any authority, to allocate the suit property to any other person as he purported to have done. By the same token, there being no evidence on record to the contrary, we nd that the defunct Nairobi City Council acquired valid title to the suit property from Kayole Estates ltd through purchase. Where does our nding leave Renton company ltd? It is worthy restating that the said company could only have acquired valid title from the Nairobi City Council, and not the commissioner of lands who had long been divested of authority to allocate the same. 57. The respondent also challenged the letter of allotment on grounds that at the time of its transfer, the conditional thirty (30) days acceptance period had lapsed. As it turned out, the letter was also silent on whose behalf the commissioner of lands had made the allotment. Noting that the Commissioner of Lands by an allotment letter dated December 19, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 47

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1999 purported to allocate the suit property to Renton Company Limited. Thereafter, by a letter dated April 25, 2001, Renton Company Limited sought approval from the Commissioner of Lands to transfer the same to the appellant. The appellant’s ownership is traced back to this allotment Letter even if subsequently registered under the Registration of Titles Act cap 281 (Repealed) on April 26, 2001. 58. So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an oer, awaiting the fulllment of conditions stipulated therein. In Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others CA 60/1997 [unreported]; and in Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others HC Civil Case No 182 of 1992; [2008] eKLR, the superior courts restated this principle as follows: “It has been held severally that a letter of allotment per se is nothing but an invitation to treat. It does not constitute a contract between the oerer and the oeree and does not confer an interest in land at all ” [Emphasis added]. 59. The pronouncement in Gladys Wanjiru and Dr Joseph NK Arap Ng’ok (supra) has been echoed in various Environment and Land Court decisions post the 2010 Constitution, including; Lilian Wanjeri Njatha v Sabina Wanjiru Kuguru & another, Environment and Land Case No 471 of 2010; [2022] eKLR; John Elias Kirimi v Martin Maina Nderitu & 4 others, Environment and Land Suit No 320 of 2011; [2021] eKLR; and Kadzoyo Chombo Mwero v Ahmed Muhammed Osman & 11 others, Environment and Land Case No 42 of 2021; [2021] eKLR, to mention but a few. 60. Suce it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fullling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulllment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter. In Peter Wariire Kanyiri v Chrispus Washumbe & 2 others, Environment and Land Court Case No 603 of 2017; [2022] eKLR, Kemei, J held as follows: “[15] In the case at hand, in the absence of any title registered in the name of the plainti, the court is unable to hold that the plainti is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added]. 61. While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 48

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incapable of conferring a transferable title to an allottee. Put dierently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore that the allotment letter has not lapsed.” 204. In Dina Management Ltd v. County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment), the Supreme Court stated as follows in paragraphs 104 and 105: “ 104. The procedure for the allocation of unalienated land is laid out by the Environment and Land Court in Nelson Kazungu Chai & 9 others v Pwani University [2014] eKLR as follows: “ …It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister for lands before any un-alienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved PDP is then issued to the allotees. 205. 131. It is only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey can be conducted for the purpose of issuance of a certicate of lease. This procedural requirement was conrmed by the surveyor, PW3. The process was also reinstated in the case of African Line Transport Co Ltd v Attorney General, Mombasa HCCC No 276 of 2013 where Njagi J held as follows: “Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes rst, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a denite number. These are then taken to the department of survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot 132. A part development plan (PDP) can only be prepared in respect to Government land that has not been alienated or surveyed…” 105. This process is restated in African Line Transport Co Ltd v Attorney General, Mombasa, HCCC No. 276 of 2003 [2007] eKLR where it was held that planning comes rst, then surveying. A letter of allotment is invariably accompanied by a PDP with a denite number, which would then be taken to the Department of Survey for surveying. Thereafter, it is then referred to the Director of Surveys for authentication and approval. It is after that process that a land reference number is issued in respect of the plot.” In their re-amended plaint, the Plainti stated in paragraph 12 that they had “genuine relevant documents that inform on the genesis and legitimacy of ownership/title to” plot No. 893. However, the Plaintis did not come out clearly on the root of their title. The Plaintis did not expressly state from whom they acquired the property. In paragraph 14 of the re-amended plaint, the Plaintis stated that they were issued with a 99-year lease by “The Nairobi City Council/Commission”. In paragraph https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 49

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15 of the re-amended plaint, the Plaintis stated that “The Nairobi City Council/Commission” issued to them “allocation letter Ref: No. CP&ARCH/3263, dated 5th September 1998’’. 206. The City Council of Nairobi and Nairobi City Commission were dierent legal entities. Whereas Nairobi City was always run by the City Council before the 2010 Constitution, the Nairobi City Commission would be brought in to take over the running of the city from the Council from time to time when the situation, as provided by the prevailing statutes and the then Constitution demanded. At no time did the City Council of Nairobi and Nairobi City Commission run Nairobi City at the same time. Plot No. 893 could therefore be allocated to the Plaintis by either the City Council of Nairobi or the Nairobi City Commission, but not by both. 207. In his evidence in chief, PW1 stated that plot No. 893 was given to them by the 1st Defendant in consideration of the support they gave him when he was vying for the position of the Chairman of Kanu Nairobi Branch. In their submissions, the Plaintis averred that plot No. 893 was allocated to them by the City Council of Nairobi. The Plaintis produced in evidence what they referred to as their letter of allotment dated 5th September 1998(P.EXH.1). The purported letter of allotment did not have the second page, and as such did not bear any signature. A complete copy of the said letter of allotment dated 5th September 1998, which was produced in evidence by the 1st Defendant as part of D.EXH.1(page 3) was said to have been signed by the then Town Clerk, Z.M.Wandera(Mrs). The letter stipulated that the allotment had to be accepted and the payment of the fees set out therein made within 30 days from the date thereof; failure of which it would be considered to have lapsed. The letter of allotment, which was on the letterhead of the Nairobi City Commission, stated that the “City Commission” oered the plaintis' Residential Plot No. IV in Umoja Innercore Sector IV. 208. The Plaintis produced in evidence as P.EXH. 12 a copy of a letter dated 24th November 2003 from their advocate, R.M.Kimani, to the 1st Defendant. In the letter, the Plaintis claimed that the 1st Defendant had sold the disputed land to them at a consideration of Kshs. 6,000,000/-, which the Plaintis paid in full. In what was referred to as the Chairman’s report dated 5th November 2003, produced in evidence as P.EXH.13, the Plaintis’ group Chairman stated that the 1st Defendant, in his thanksgiving speech after winning the Nairobi Branch Kanu Chairman seat, promised to give the Plaintis land, which he subsequently did, but asked the Plaintis to pay Kshs. 6,000,000/-, which the Plaintis paid in full in instalments. 209. In the Plaintis’ supplementary list and bundle of documents dated 2nd May 2018, led on 3rd January 2019, I have seen a copy of a letter dated 12th May 2006 addressed to the Permanent Secretary, Ministry of Lands by the Plaintis concerning plot No. 893, in which the Plaintis stated in part that: “In 1997, Wazee Makadara group campaigned for Mr. Habib Kongo who beat a number of powerful Nairobi politicians to become Nairobi KANU Chairman. Mr. Kongo was so happy with the group that he sold the subject piece of land for Ksh. 6 million which he owned through M/s Aviton Enterprises to Wazee Makadara Group.” 210. In the same list and bundle of documents, I have seen another letter dated 29th September 2008 by the Plaintis’ advocates, Meshack Okoth Obura & Company Advocates to the Commissioner of Lands in which he stated as follows in part in relation to plot No. 893: “In 1997 Habib Omar Kongo sold the said parcel of land to Wazee Makadara Self Help Group at a price of Kenya Shillings Six Million through his company known as Aviton Enterprises Limited. Mr. Kongo conrmed running(sic) a Press Conference reported in the Daily Nation pf (sic) 17th May, 2000 that he indeed sold the parcel of Land to Wazee Makadara Self Help Group. 211. Whether plot No. 893 was given, or sold to the Plaintis by the 1st Defendant, or allocated to the Plaintis by the Nairobi City Commission or the City Council of Nairobi, the burden was on the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 50

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Plaintis to prove the gifting, sale, or allotment and that it resulted in a valid title in favour of the Plaintis. There is no evidence that the 1st Defendant at any time owned plot No. 893. The 1st Defendant could therefore neither give nor sell what he did not have. Furthermore, the Plaintis placed no evidence before the court of the alleged giving or sale of plot No. 893 by the 1st Defendant to the Plaintis. Although the Plaintis claimed that they had a written agreement of sale with the 1st Defendant, which got lost when the Plaintis’ premises were invaded by goons hired by the 1st Defendant, there was no evidence that such a loss was reported to the police. 212. In the letters I have referred to earlier, the Plaintis appear to acknowledge that plot No. 893 was owned by the 2nd Defendant. The 2nd Defendant is and was always a limited liability company. I am unable to see how the 1st Defendant, whether he was a director of the 2nd Defendant or not, could sell or give out a property owned by the company. There is also no evidence that the 2nd Defendant transferred its interest in the suit property to the Plaintis. From the foregoing, I nd the Plaintis’ claim that the suit property was given and/or sold to them by the 1st and 2nd Defendants not proved. 213. As concerns the alleged allotment of the suit property to the Plaintis by the Nairobi City Commission/City Council of Nairobi, the following is my view: It is common knowledge that the Nairobi City was run by a Commission between 1983, when the Council was dissolved, until 1992, when the Council was reinstated following the General Elections. Nairobi City Commission was not in existence in 1998 and, as such, could not have allocated the suit property to the Plainti on 5th September 1998, which also happened to be a Saturday when public oces were closed at the material time. For the alleged City Council of Nairobi allocation, the Plaintis produced no evidence of such allocation. There was no letter of allotment by the City Council of Nairobi. 214. In both cases, there was no evidence placed before the court showing that plot No. 893 was owned by the Nairobi City Commission/City Council of Nairobi to be in a position to allocate the same. There was also no evidence that the Plaintis accepted the allotment and paid the requisite charges for the allotment. PW1 stated in his evidence that the Plaintis paid Kshs. 43,000/- as a stand premium and Kshs. 6,000/- as annual rent. No evidence of such payment was presented to the court. The Plaintis’ letter of allotment did not refer to any survey plan or Part Development Plan (PDP) in its description of the allotted property. The allotted property was referred to only as residential Plot No. IV Umoja Innercore Sector IV and its measurement was given as 8.67 hectares. 215. According to the Plaintis, plot No. 893 was surveyed in 1992, and its survey plan No. F/R 224/20 was authenticated on 28th May 1992. If indeed plot No. 893 had been surveyed in 1992, 6 years before the same was allocated to the Plaintis in 1998, why was it not allocated as plot No. 893 measuring 9.422 hectares? Why was it allocated as an unsurveyed Plot No. IV measuring 8.67ha.? Why was a beacon certicate necessary for a surveyed parcel of land that had beacons in place? All these cast doubt on the Plaintis’ claim that Plot No. 893 was surveyed in 1992. The letter of allotment referred to the duration of the lease as “Residue of the Commission’s term of 99 years (less three days). This was also vague in that the land being allocated was unsurveyed and unregistered in the name of the Commission/ Council as a lessee or an absolute proprietor. 216. I wish to add that the Plaintis did not rebut the evidence adduced by the 1st and 2nd Defendants that Z.M.Wandera, the then Town Clerk of the City Council of Nairobi, denied signing the Plaintis’ letter of allotment dated 5th September 1998. The Plaintis contended that upon the allocation of plot No. 893 to them, and their meeting the conditions of the allotment, they were issued with a lease and subsequently a certicate of lease for the property. As correctly submitted by the Defendants, a position supported by the authorities cited earlier, acquisition of title to land through allocation is a process and not an event. It starts with allocation. If the allocation is not proper, any step taken pursuant thereto https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 51

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would not be valid. The Plaintis led evidence that they were issued with a lease by the City Council of Nairobi. 217. The Plaintis did not produce the lease in evidence. I have, however, seen a copy of the said lease at pages 56 to 62 of the Plaintis’ supplementary list and bundle of documents led on 23rd January 2019. The lease is neither dated nor registered. This may explain why it was not produced in evidence. The lease was between the Nairobi City Council and Wazee Makadara Self Help Group. It was for a term of 99 years with eect from 1st January 1994, less the last 3 days. The lease has two execution pages for the lessor; one is an extension of the lease, while the other page is separate and distinct. The execution page, which is an extension of the lease, is not signed by the lessor. It is the detached execution page that is said to have been signed by the mayor and the town clerk. The lease was said to have been signed by the 1st Plainti on behalf of Wazee Makadara Self Help Group before R.M.Kimani Advocate on a date not given on the lease. 218. The circumstances under which the Plaintis “received” this lease is captured in the minutes of Wazee Makadara Self Help Group’s Executive Meeting held on 27th May 2005 at Railways Go Down Shade 5A Room 20. The minutes were attached to the 1st Plaintis’ adavit sworn on 16th September 2011, led herein in support of the Plaintis’ application of the same date led on 19th September 2011. The lease is said to have been handed over to the 1st Plainti by Mr. Kihingo, the Assistant Director of City Planning, who had obtained the same from a Mr. Makwiki and Mr. Kinyua. In the Plaintis’ advocates' letter dated 29th September 2008 to the Commissioner of Lands, which I referred to earlier, the said advocate stated that the Plaintis had “enlisted the services of the Director of Physical Planning at City Hall Mr. Baptista Wandumbu Kihingo to regularize the Documents whose fees was paid in full.” In the group’s meeting of 27th May 2005 at the group’s oce referred to above, which was attended by Mr. Kihingo, and Mr. Were, who was described as Land Registrar, Nairobi Province, Mr. Kihingo was thanked for his services. At the meeting, the parties agreed that the Land Registrar, Mr. Were, would be contracted to fast-track the registration of the lease because “if the other procedure was to be used then it would take long time”. The Land Registrar was to be given Kshs. 20,000/- for the title, “but the ocial receipt would read less since the registrar would be working on contractual base(sic)”. 219. In the earlier case between the parties, Nairobi HCC No. 193 of 2006, Mr. Kihingo swore an adavit on 15th March 2006 (see page 37 D.EXH.1) admitting having signed the beacon certicate for plot No. 893. He stated that he signed the same in the normal course of business, but it was established later that plot No. 893 did not exist, and he took no further steps in the matter. The town clerk who was in the oce at the material time Mr. Godfrey M. Mate wrote a letter dated 27th March 2006 denying having signed the lease by the City Council of Nairobi in favour of the Plaintis (see page 30 of D.EXH.1). Mr. John Ndirangu Kariuki (DW3) who was the mayor of the City of Nairobi between 1999 to 2001 whose signature appeared in the lease wrote a letter to the Town Clerk on 24th March 2006 and also gave evidence at the trial denying having signed the lease. The letter by Godfrey Mate and the evidence of John Ndirangu Kariuki were not challenged in any material respect by the Plaintis. From the totality of the evidence adduced at the trial, I am not convinced that the City Council of Nairobi issued a lease in favour of the Plaintis in respect of plot No. 893. 220. The Plaintis’ lease is said to have been registered on 27th October 2005 and a certicate of lease issued on the same date to Wazee Makadara Self Help Group. The certicate of lease was in respect of a lease for plot No. 893 measuring 8.67 hectares for a term of 99 years with eect from 1st January 1994. This Certicate of Lease was said to have been erroneously issued in the name of Wazee Makadara Self Help Group(group), which was said not to be a legal entity capable of holding land. I am unable to see the error since the letter of allotment was in the name of the group as well as the lease. A new certicate of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 52

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lease is said to have been issued on the same date in the names of Jared Oduor Osodo, Julius Nderitu Mititii and John Wachira Macharia as trustees of Wazee Makadara Self Help Group. 221. I have made a nding that there was no valid letter of allotment of plot No. 893 in favour of the Plaintis, and that no valid lease was executed and registered in favour of the Plaintis. It follows that the purported certicate of lease was issued in vacuum using a shortcut that was hatched in the meeting held at the group's oce on 27th May 2005, which was attended by a land registrar, Mr. Were, who was to be paid Kshs. 20,000/- to fast-track the process of registration of the lease and issuance of the certicate of lease. It is worth mentioning that although the Plaintis claimed that the lease and certicate of lease were issued pursuant to the survey plan F/R No. 224/20, in which the measurement of plot No. 893 was given as 9.422 hectares, the lease did not give the measurement of the leased property, while the certicate of lease gives the measurement of the leased property as 8.7hectares. This is the measurement given in the letter of allotment, which supports the Defendants’ contention that the land purportedly allocated to Plaintis had no relationship with survey plan F/R No. 224/20. 222. From the foregoing, it is my nding that the Plaintis had no valid title or interest in plot No. 893. Since the Plaintis had no valid title to plot No. 893, they could not validly subdivide the same. Even if it is assumed that the Plaintis had a valid proprietary interest in plot No. 893, did they lawfully carry out the purported subdivision? The Plaintis claimed to have subdivided plot No. 893 on 20th November 2001 into 323 portions (899-1222) through a Licensed Surveyor, L.K.Gitau, pursuant to a subdivision scheme approved by the Commissioner of Lands through a letter dated 15th May 2001, reference number 144024/36. The Plaintis claimed that following that subdivision, L.G.Gitau prepared a survey plan F/R No. 313/39, which was authenticated by the Director of Surveys on 19th December 2001(PMFI 4). As stated earlier, the burden was on the Plaintis to prove the alleged subdivision. 223. It is common ground that the subdivision of plot No. 893 had to be carried out by a surveyor, and the same had to be approved by the City Council of Nairobi and the Commissioner of Lands. L.K.Gitau the surveyor who was alleged to have carried subdivision of plot No. 893 on behalf of the Plaintis, gave evidence as DW2. L.K.Gitau disowned the Plaintis. He stated that Wazee Makadara Self Help Group was unknown to him, and it never instructed him to carry out any subdivision work for them in respect of plot No. 893. He admitted that he prepared survey plan No. 313/39. He stated, however, that he prepared the said survey plan pursuant to the instructions from the 1st and 2nd Defendants to subdivide plot No. 530 and not plot No. 893. Before his testimony, L.K.Gitau had written a letter dated 28th September 2011 to the Director of Criminal Investigations Department(see page 40 of D.EXH.1) in which he explained how he subdivided plot No. 530 through a survey plan, F/R No. 313/39. He stated that he carried out the subdivision on behalf of the 2nd Defendant, which provided him with the City Council of Nairobi’s approval dated 1st February 2001, a copy of the approved subdivision scheme and approval from the Commissioner of Lands through a letter ref: 144024/36 dated 15th May 2001, and the original survey plan for plot No. 530. He stated that he nished the subdivision on 20th November 2001, and submitted the work to the Director of Surveys, who authenticated the survey plan on 19th December 2001. He denied ever carrying out any survey work on plot No. 893 or knowing Wazee Makadara Self Help Group. 224. The Plaintis never produced any evidence of the approvals obtained from the City Council of Nairobi and the Commissioner of Lands for the purported subdivision of plot No. 893 disowned by the surveyor who was alleged to have carried out the same. As mentioned earlier, the Plaintis alleged that they were issued with a lease for plot No. 893 on 27th May 2005, which lease was registered on 27th October 2005, on which date they were also issued with a certicate of lease. How could the City Council of Nairobi or the Commissioner of Lands approve the subdivision of plot No. 893 by the Plaintis 4 years before they were issued with a title for the property? The Plaintis were allegedly https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 53

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allocated an unsurveyed plot No. IV Umoja Innercore Sector IV. How could a subdivision be carried out on the strength of a letter of allotment describing the allotted property as such? 225. I disagree with Cecilia Wangare Wamutitu alias Koigu (PW2) that the City Council of Nairobi could subdivide its land before a title was issued. First, there was no evidence that plot No. 893 was owned by the City Council of Nairobi. How could it own it without a title? Secondly, it was not the City Council of Nairobi subdividing plot No. 893. It was the Plaintis who were undertaking the subdivision of the property. The 1st and 2nd Defendants presented evidence in court showing that the letter of subdivision approval from the Commissioner of Lands dated 15th May 2001 ref: 144024/36 was issued in respect of the subdivision of plot No. 530 owned by the 2nd Defendant and not for plot No. 893 owned by the Plaintis. The same applied to the City Council approval issued on 1st February 2001. It is my nding that plot No. 893 was never subdivided into subplots 899-1222 as claimed by the Plaintis. The Plaintis, in the circumstances, have no valid interest or claim over the said subplots. In conclusion, it is my nding that the Plaintis are not the lawful owners of plot No. 893 and its purported subdivisions. 226. Whether the 2nd Defendant is the lawful owner of the land parcel No. Nairobi/Block 83/530, claimed by the Plaintis to be the land parcel No. Nairobi/Block 83/893. 227. The 2nd Defendant produced evidence showing that plot No. 530 measuring 9.7 hectares was allocated to the Nairobi City Commission by the Commissioner of Lands for a term of 99 years with eect from 1st August 1992 through a letter of allotment dated 6th August 1992 on the terms and conditions that were set out in the letter of allotment which provided among others that the Commission was to pay a Stand Premium of Kshs. 3,000,000/- and annual rent of Kshs. 600,000/-. The total payment the Commission was supposed to pay was Kshs. 3,442,610/-. The Commission was supposed to accept the allotment and make the payment within 30 days from the date of the allotment; failure to which the allotment would be considered to have lapsed. 228. The Commission wrote to the Commissioner of Lands on 19th August 1992, accepting the allotment and promising to pay the allotment fees set out in the letter of allotment in due course. The Commission did not pay the allotment charges of Kshs. 3,442,610/-. On 21st September 1992, the City Council of Nairobi purported to enter into a lease with the 2nd Defendant in respect of the property. I have not seen the said lease. It is not clear, therefore, what its terms were and the interest, if any, which the City Council of Nairobi (Council) had in the land which was the subject of the lease. 229. On 29th September 1995, the Council wrote to the Commissioner of Lands informing him of the said lease with the 2nd Defendant. The Council informed the Commissioner of Lands further that the 2nd Defendant had paid Kshs.3,442,610/- on behalf of the Council to expedite the processing of a lease in its favour. The Council requested the Commissioner of Lands to release the title for the suit property to the Council to enable them process the lease for the 2nd Defendant. The Council informed the Commissioner of Lands that the Council would have no objection to the Commissioner of Lands issuing the title directly to the 2nd Defendant. 230. Following the communication from the Council that it had no objection to the Commissioner of Lands issuing the lease for plot No. 530 directly to the 2nd Defendant, the Commissioner of Lands under cover of a letter dated 2nd October 1995 forwarded to the Council a form of transfer for execution through which the Council was to transfer plot No. 530 to the 2nd Defendant at a consideration of Kshs. 1,800,000/-. The Council executed the transfer on 13th October 1995, eectively transferring its interest in plot No. 530 to the 2nd Defendant. The transfer was forwarded to the Commissioner of Lands by the Council on 13th October 1995. On 17th October 1995, the Commissioner of Lands wrote to the 2nd Defendant demanding payment of a sum of Kshs. 2,639,990/- comprising the consideration https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 54

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for the transfer in the sum of Kshs. 1,800,000/-, Kshs. 539,990/- for Stamp Duty on the informal transfer and Kshs. 300,000/- being the consent to transfer fees. 231. It is not clear from the evidence on record whether the 2nd Defendant paid the said sum of Kshs. 2,639,990/- to take over the interest of the Council in the letter of allotment dated 6th August 1992. In the absence of any complaint from the Council or the Commissioner of Lands, it must be assumed that the payment was made. The Commissioner of Lands issued a lease to the 2nd Defendant dated 21st October 1995. The lease was registered on 1st November 1995, and on the same date, the 2nd Defendant was issued with a certicate of lease. All the documents I have referred to above are contained in the 2nd Defendant’s bundle of documents dated 26th June 2015, led on 29th June 2015, which was produced as D.EXH.3. 232. I am satised that the 2nd Defendant has established the root of its title to plot No. 530. In the absence of any challenge to the 2nd Defendant’s title by Nairobi City County the successor of the Council to which plot No. 530 was allocated but chose to surrender the property to the 2nd Defendant or the National Land Commission, the successor of the Commissioner of Lands who allocated the property to the Council, it is my nding that the 2nd Defendant is the lawful leasehold proprietor of plot No. 530 measuring approximately 9.7 hectares. 233. I am also satised from the evidence on record that plot No. 530 was lawfully subdivided by the 2nd Defendant into plot Nos. 899-1222. The 2nd Defendant proved that it engaged a surveyor, L.K. Gitau, who subdivided plot No. 530 after all the required approvals were granted. L.K.Gitau gave evidence and conrmed that the survey plan, F/R No. 313/39, was for the subdivision of plot No. 530 into subplot Nos. 899-1222. His evidence was not shaken in cross-examination by the Plaintis, who had also claimed that the survey plan, F/R No. 313/39, was for the subdivision of their plot No. 893. The Plaintis failed to produce evidence showing that they obtained the approval for the subdivision of plot No. 893 and that they engaged L.K.Gitau to carry out the subdivision. The 2nd Defendant proved that the approvals issued by the City Council of Nairobi and the Commissioner of Lands were for the subdivision of plot No. 530. The 2nd Defendant has established that it had a lawful proprietary interest in plot No. 530 and its subdivisions, subplot Nos. 899-1222. 234. Whether the land parcel No. Nairobi/Block 83/893 claimed by the Plainti and the land parcel No. Nairobi/Block 83/530 claimed by the 2nd Defendant are at the same location on the ground, or in other words, whether land parcel No. Nairobi/Block 83/893 claimed by the Plainti and the land parcel No. Nairobi/Block 83/530 claimed by the 2nd Defendant is the same parcel of land on the ground, and if so, who among them has the right to the land in contention? 235. From the evidence on record, the parcel of land claimed by the Plaintis to be plot No. 893 and the parcel of land claimed by the 1st and 2nd Defendants to be plot No. 530 are in the same location on the ground. That means that the Plaintis and the 1st and 2nd Defendants are claiming the same land on the ground. The Plaintis are claiming the land through plot No. 893, while the 1st and 2nd Defendants are claiming the same through plot No. 530. To determine who has the right to the land in contention, it is necessary to go back to the root of each title. This would enable the court to know when each title came into being, and if at all, one land parcel was given two titles, when the titles were issued, and which one was the rst in time. 236. As I stated earlier in the judgment, the Plaintis failed to establish the root of their title to plot No. 893. The Plaintis’ title is only manifested in the certicate of lease dated 27th October 2005, which in itself is not conclusive proof of title. The lease was said to have been granted to the Plaintis by the City Council of Nairobi following an allocation of plot No. 893 to the Plaintis. No evidence was https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 55

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placed before the court showing that the City Council of Nairobi owned plot No. 893 at any time. No evidence was also presented to the court showing that the City Council of Nairobi allocated plot No. 893 to the Plaintis. As stated earlier, the Plaintis’ letter of allotment dated 5th September 1998, which the City Council of Nairobi disowned, referred to the allotted parcel of land as residential Plot No. IV Umoja Innercore Sector VI. The Plaintis did not explain the process through which Plot No. IV Umoja Innercore Sector VI, which was allocated as unsurveyed land measuring 8.67 hectares, became plot No. 893. According to the Plaintis, plot No. 893 was surveyed on 25th May 1992 under survey plan, F/R No. 224/20, which was authenticated by the Director of Surveys on 28th May 1992. The Plaintis gave no explanation why plot No. 893, which was already surveyed according to them, and the parcel number given was not allocated to them, as such, instead of being allocated as Plot No. IV. 237. As concerns the 2nd Defendant’s plot No. 530, I have made a nding that the 2nd Defendant established that it acquired the property lawfully. The 2nd Defendant traced the root of its title to the letter of allotment that was issued by the Commissioner of Lands to the Nairobi City Commission on 6th August 1992. The Commissioner of Lands allocated plot No. 530 measuring 9.7 hectares to the Commission on terms and conditions set out in the letter of allotment. The City Council of Nairobi transferred its interest in the letter of allotment to the 2nd Defendant with the approval of the Commissioner of Lands. The 2nd Defendant satised the conditions of the allotment and was issued with a lease and subsequently a certicate of lease for plot No. 530 measuring 9.7 hectares. According to the 2nd Defendant, plot No. 530 was allocated and leased to them as surveyed land. The land was surveyed by Jacob Oyato, a licensed surveyor, on 25th May 1992 through survey plan No. 224/20, which was authenticated by the Director of Surveys on 28th May 1992. This is the same survey plan that the Plaintis also claimed to have created their plot No. 893. The Plaintis and the Defendants are therefore claiming that both their parcels of land, plot No. 893 and plot No. 530, were created in 1992 through survey plan No. 224/20. 238. According to the Plaintis, the 1st and 2nd Defendants superimposed their purported plot No. 530, which was small in size and situated in Umoja Innercore Sector I, on the survey plan, F/R No. 224/20 for plot No. 893, which is situated in Umoja Innercore Sector IV. The Plaintis contended that plot No. 530 owned by the 2nd Defendant was surveyed in January 1989 through survey plan, F/R No. 211/68, which was authenticated by the Director of Surveys on 5th August 2004. That survey plan created land parcel Nos. 530 to 618 of various measurements, of which parcel No. 530 measured 0.6212 hectares. The Plaintis contended that this was the parcel of land which was allocated to the 2nd Defendant, and which the 2nd Defendant superimposed on the Plaintis’ plot No. 893, which measured 8.67 hectares. 239. The 1st and 2nd Defendants admitted that there was in existence a parcel of land measuring 0.6212 hectares with parcel No. 530 created through a survey conducted in January 1989, which gave rise to a survey plan, F/R No. 211/68, which was authenticated on 5th August 2004. The 1st and 2nd Defendants contended that there was a duplication in the numbering of land parcels by the Director of Surveys, with the result that No. 530 was given to two parcels of land, the 2nd Defendant’s land at Umoja Innercore Sector IV and another parcel of land in Umoja Innercore Sector I owned by someone else. The 1st and 2nd Defendants contended that parcel No.530 measuring 0.6212 hectares was not the 2nd Defendant’s parcel of land measuring 9.7 hectares, which was created on 25th May 1992 through survey plan, F/R No. 224/20. 240. It was established at the trial that the parcel of land that upon survey in 1990 was given land parcel No. 530 under survey plan F/R No. 211/68 was a special purpose plot in Umoja Innercore Sector I known as Plot No. 16. PW2 conrmed that Special Purpose plot No. 16 is what became Plot No. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 56

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530 measuring 0.6212 hectares under survey plan F/R 211/68. PW2 conrmed that upon visiting the ground, he found a mosque on this plot No. 530. The 2nd Defendant produced evidence showing that the said special purpose Plot No. 16 in Umoja Innercore Sector 1 was leased by the City Council of Nairobi on 31st January 1989 to the trustees of Young Muslim Association for religious purposes (see the lease at page 258 of D.EXH. 3). 241. It follows that neither the Government nor the City Council of Nairobi could have allocated this parcel of land to the 2nd Defendant in 1992 when the Government of Kenya allocated plot No. 530 measuring 9.7 hectares to the City Council of Nairobi. Plot No. 530, formerly Special Purpose Plot No. 16, could not therefore be the same Plot No. 530 measuring 9.7 hectares which was allocated to the City Council of Nairobi, which transferred the allotment to the 2nd Defendant. Secondly, in the letter of allotment dated 6th August 1992, the Commissioner of Lands stated that the parcel of land allocated to the City Council of Nairobi measured 9.7 hectares. The transfer of Plot No. 530 by the City Council of Nairobi to the 2nd Defendant dated 13th October 1995, gave the measurement of the land as 9.7 hectares. The lease issued by the Government of Kenya to the 2nd Defendant dated 21st October 1995, also gave the measurement of plot No. 530, the subject of the lease as 9.7 hectares. There is no doubt, therefore, that plot No. 530, which the 2nd Defendant acquired, was not the former Special Purpose Plot No. 16 measuring 0.6212 hectares but the larger plot No. 530 measuring 9.7 hectares. It is therefore my nding that there were indeed two parcels of land with the same parcel No. 530; one with a mosque that had been leased by the City Council of Nairobi to the Young Muslim Association, measuring 0.6212 hectares, and another one that was leased by the Government of Kenya to the 2nd Defendant, measuring 9.7 hectares. PW2 conrmed that it was possible to have parcel numbers duplicated. The duplication in this case was conrmed by the Director of Surveys in a letter dated 3rd July 2015 produced by the 2nd Defendant as part of D.EXH.4. Having concluded that indeed there was a parcel of land known as plot No. 530 measuring 9.7 hectares, the question that I need to answer is whether it was this plot No. 530 claimed by the 2nd Defendant which was the product of survey plan No. 224/20 or plot No. 893 owned by the Plaintis. 242. From the totality of the evidence before the court, I agree with the 1st and 2nd Defendants that plot No. 893 was a creation of the Plaintis and those who were recruited to assist them at the City Council of Nairobi and the Ministry of Lands to obtain a title for the land which they claimed had been given or sold to them by the 1st Defendant. The 1st Defendant was said to own the land through the 2nd Defendant. As correctly submitted by the 1st and 2nd Defendants, plot No. 893 does not exist. The City Council of Nairobi and its successor, the Nairobi City County, the Ministry of Lands, and the Director of Surveys have, in their conclusive opinions on this dispute, unanimously concluded that plot No. 893 does not exist. I nd the reports and opinions presented by PW5 and PW6 on the existence of plot No. 893 not convincing, having regard to the fact that they never involved the 1st and 2nd Defendants in the same. They also did not interrogate the roots of the titles that were held by the Plaintis and the 2nd Defendant. The same applies to the report by PW2. PW2, in my view, took the survey plans which she used in the preparation of her report on face value. PW2 did not appreciate the fact that there was a claim that the survey plan, F/R No. 224/20, was for plot No. 530 and not for plot No. 893. PW2 also did not consider the fact that there were two parcels of land that were given the same parcel number 530. 243. Ironically, PW2 insisted that plot No. 893 existed while she admitted that they did not have in their records the le relating to the plot. To her, the existence of a survey plan said to have created plot No. 893 was conclusive on the existence of the plot. I have also noted that PW2 did not involve the parties while preparing the report, and as such, the report did not have their input. PW2 was also cagey on the question of the sources of the survey plans that she used. When asked that question, she stated that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 57

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she got the survey plans from their database. At one point, she stated that she used what was in her custody. PW2 also claimed that she conrmed the validity of the survey plans from the Director of Surveys. The plans were, however, not certied by the Director of Surveys. I wonder where PW2 got the survey plan F/R No. 224/20 for plot No. 893, while she told the court that they did not have any records relating to plot No. 893 in their custody. I have also noted that the conclusion reached by PW2 in her report was contrary to the positions that had earlier been taken by her seniors, namely, the Chief Land Surveyor, City Council of Nairobi, in a letter dated 21st March 2006, and Chief Ocer, Lands, Nairobi City County, in a letter dated 11th September 2014. I nd no depth in the report by PW2. It is of very little evidential value in the dispute before the court. 244. I also nd the evidence of PW3 on the existence of Plot No. 893 not convincing. PW3 told the court that the only survey plans which she found in their records as the custodian of survey records in Kenya were survey plan F/R No. 211/68 for the plot No. 530 measuring 0.6212 hectares and survey plan F/R No. 224/20 for plot No. 530 measuring 9.422 hectares. PW3 did not get any survey plan in their records relating to plot No. 893. The survey plan F/R No. 224/20 for plot No. 893, which PW3 produced in evidence, was not from the Director of Surveys but from some oce in the Ministry of Lands at Ardhi House known as S.P.R.O, which was not the custodian of Survey Records but could have survey plans sent to it from time to time. PW3 did not tell the court when the survey plan F/R No. 224/20 for plot No. 893 was sent to the S.P.R.O, and by whom. I nd no basis for PW3’s conclusion that plot No. 893 was created through survey plan F/R No. 224/20 and not plot No. 530, while the Director of Surveys did not have in its records any survey plan relating to plot No. 893. The fact that there were two survey plans for the same parcel of land, plot No. 530, was well explained. PW3 admitted that there were cases of duplication of parcel numbers. Like PW2, PW3 believed that the mere existence of a survey plan F/ R No. 224/20 for plot No. 893 meant that the land existed. The evidence of this witness contradicted the position of the Director of Surveys under whom she was working. In his letter dated 3rd July 2015 to the Director of Criminal Investigations, the Director of Surveys stated that plot No. 893 did not exist. The Commissioner of Lands similarly stated in his letter dated 12th April 2006 to the Provincial Criminal Investigations Ocer that plot No. 893 did not exist. 245. Arising from the above analysis, it is my nding that survey plan F/R No. 224/20 is for plot No. 530, and that plot No. 893 does not exist on the ground. In the circumstances, the issue of plot No. 893 and plot No. 530 being at the same location on the ground does not arise. 246. Whether the 1st and 2nd Defendants trespassed on the Plaintis’ land parcel No. Nairobi/Block 83/893 claimed by the 1st and 2nd Defendants to be the land parcel No. Nairobi/Block 83/530. 247. I have made a nding that the Plaintis have not established the existence of plot No. 893 and their title to the same. The Plaintis cannot, therefore, maintain an action for trespass in relation to the plot. I have made a further nding that the parcel of land the Plaintis are claiming to be plot No. 893 is indeed plot No. 530 owned by the 2nd Defendant. The Plaintis have not proved that the 2nd Defendant had authorised them to occupy or use the property. The Plaintis have not proved trespass against the 1st and 2nd Defendants. 248. Whether the Plaintis trespassed on the 2nd Defendant’s land parcel No. Nairobi/Block 83/530, claimed by the Plaintis to be the land parcel No. Nairobi/Block 83/893. 249. The evidence on record shows that when the Plaintis came to court, they had been evicted from Plot No. 530 and barred from regaining possession. The land has since been subdivided and several portions sold to third parties who are in occupation thereof. There is no evidence that, at the time the counterclaim was brought by the 2nd Defendant against the Plaintis, there was any continuing trespass. The 2nd Defendant has not proved the trespass alleged against the Plaintis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 58

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250. Whether the Plaintis are entitled to the reliefs sought in their re-amended plaint. 251. The Plaintis have not proved their case against the Defendants. The Plaintis are therefore not entitled to the reliefs sought in their re-amended plaint. 252. Whether the 2nd Defendant is entitled to the orders sought in its counterclaim. 253. I have at the beginning of the judgment set out the orders sought by the 2nd Defendant against the Plaintis in their counterclaim. The Plaintis are claiming the subdivisions of plot No. 530, namely, Nairobi/Block 83/899-1222, which were owned by the 2nd Defendant and some of which the 2nd Defendant has sold to third parties. I have already held that the Plaintis’ claim has no basis. The 2nd Defendant is, in the circumstances, entitled to a permanent injunction restraining the Plaintis from interfering with the said parcels of land. The 2nd Defendant had also sought a permanent injunction restraining the Plaintis and the members of Wazee Makadara Self Help Group (the group) from publishing in the press, newspaper or any other media adverse notices or features relating to the 2nd Defendant’s properties known as Nairobi/Block 83/899-122. I am of the view that this order is not merited. Apart from the notices which the Plaintis put in the press during the pendency of these proceedings, warning third parties from dealing with the properties in dispute, there is no evidence that the Plaintis had engaged in any malicious media campaign against the 2nd Defendant in relation to the disputed properties. The 2nd Defendant had also claimed general damages. The 2nd Defendant did not prove that it had suered any loss or damage as a result of the Plaintis’ activities or claims over plot No. 530 or its subdivisions. The 2nd Defendant is, in the circumstances, not entitled to the damages sought. 254. Who is liable for the costs of the suit and the counterclaim? 255. The Plaintis have not succeeded in their claim against the Defendants. The 2nd Defendant has, on the other hand, succeeded in its claim against the Plaintis. There is no reason why the Defendants should be denied the costs of the suit and the counter-claim. The Defendants shall have the costs. Conclusion 256. In conclusion, I hereby make the following orders in the matter: 1. The Plaintis’ suit is dismissed with costs to the 1st and 2nd Defendants. 2. The Interested Parties shall bear their own costs of the suit. 3. Judgment is entered for the 2nd Defendant against the Plaintis, in the counterclaim for: a. A permanent injunction restraining the Plaintis and the members of Wazee Makadara Self Help Group (the group) from trespassing, interfering, claiming, or dealing in any way with the 2nd Defendant’s parcels of land known as Nairobi/Block 83/899-1222. b. The costs of the counter-claim. DATED AND SIGNED AT KISUMU THIS 17TH DAY OF DECEMBER 2025 S. OKONG’O JUDGE Judgment delivered virtually through Microsoft Teams Video Conferencing platform in the presence of; Mr. Kinyanjui for the 1st to 3rd Plaintis https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 59

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N/A for the 4th Plainti Mr. Ngugi for the 1st Defendant Mr. Thuita for the 2nd Defendant N/A for the 3rd Defendant Mr. Musundi for the Interested Parties Ms. J. Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18518/eng@2025-12-17 60

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