Onyango & 20 others v Okello & 9 others (Environment and Land Case 22 of 2020) [2026] KEELC 1938 (KLR)

GEORGE OKELLO ............................................................................ 20TH PLAINTIFF CHARLES MWANGI ......................................................................... 21ST PLAINTIFF AND AGATHA NABWIRE OKELLO ...................................................... 1ST DEFENDANT DENIS OGALLO OBANDA ............................................................ 2ND DEFENDANT ROBERT ADUNGO ......................................................................... 3RD DEFENDANT CHRISTOPHER OMODING ......................................................... 4TH DEFENDANT FLORENCE AYIEYE ........................................................................ 5TH DEFENDANT FLORENCE AMATI ........................................................................ 6TH DEFENDANT JACKSON MUBWEKA ................................................................... 7TH DEFENDANT COUNTY GOVERNMENT OF KENYA ....................................... 8TH DEFENDANT ESHIKHONI AUCTIONEERS ....................................................... 9TH DEFENDANT THE HON ATTORNEY GENERAL ........................................... 10TH DEFENDANT RULING 1. Part of these proceedings were conducted virtually and this case illustrates the challenges and pitfalls inherent in conducting trials through the virtual platforms. While there are advantages such as fiexibility for both the counsel and parties, there are also concerns about connectivity, procedural fairness including coaching of witnesses, accessibility by some litigants e.t.c. Mr Odhiambo Ouma counsel for the Plaintifis is unlikely to forget in a hurry the events that took place in this Court on 12th October 2023 when the Defendants started prosecuting their case. 2. The chronology of the events giving rise to this ruling is that the Plaintifis closed their case on 12th October 2023. The Defendants then called their first witness Dennis Ogalo Obanda who is the 2nd Defendant in this case. He was sworn and led in his testimony by his counsel Mr Maxwell Okeyo who also appears for the 1st, 3rd, 4th, 5th, 6th and 7th Defendants. Both Mr Wambura counsel for the 8th Defendant and Mr Wanyama counsel for the 9th Defendant did not cross-examine him. He was however cross-examined at length by Mr Odhiambo Ouma before we adjourned at 1pm because my Court Assistant Ms Tracy Ajwang had fallen ill. 3. The matter then came up for hearing on 8th May 2024 but both Mr Wambura and Mr Wanyama sought adjournments as they were not ready to proceed. 4. When the hearing resumed on 18th December 2024, Mr Odhiambo Ouma joined the proceedings virtually and that was when all hell broke loose. Mr Odhiambo Ouma informed the Court that the Mr Dennis Ogalo Obanda who actually took the witness stand and testified on 12th October 2023 was infact one Michael Osigwar who masqueraded as Dennis Ogalo Obanda. Counsel asked this Court to admonish him and expunge the evidence from the record saying he had never witnessed something like that before. I must confess I had also never witnessed anything like that before in my 44 years career on the Bench. I did not know whether to laugh, cry or just hold my head in shame at what was not turning out to be like an episode in the Kiswahili Court room comedy Vihoja Mahakamani. I can only https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1938/eng@2026-04-09 2

page 2 of 6

imagine the parties and their witnesses grinning from ear to ear as they left my Court amused that they had left a whole Judge and his 4 learned friends with egg on their faces! 5. After hearing counsel orally on the issue, I directed that Mr Odhiambo Ouma who had sought the expunging of the evidence of Dennis Ogalo Obanda from the record, files a formal application. 6. The Plaintifis have therefore filed a Notice of Motion dated 10th March 2025 in which they seek the following orders: 1. That the entire evidence and testimony of defence witness number 1 who appeared and testified for and on behalf the 1st to 7th Defendants on 12th October 2023 be entirely quashed from the records of the proceedings before this Court having been procured through an illegal and criminal process by impersonation. 2. That the 2nd Defendant Dennis Ogalo Obanda and his father Michael Osigwar be caused to personally appear before this Honourable Court. 3. That the costs of this application be provided for. 7. The Motion is based on the grounds set out therein and is supported by the afidavit of Raphael Onyango the 1st Plaintifi. 8. The gravamen of the Motion is that Dennis Ogalo Obanda the 2nd Defendant had filed a detailed written statement intending to testify as a witness for the 1st to 7th Defendants. That when the matter came up for hearing of the defence case on 12th October 2023 and when it was expected that the said Dennis Ogalo Obanda would personally appear and testify, he conspired and connived with one Michael Osigwar his father who appeared and testified before this Court as though he were the said Dennis Ogalo Obanda a fact that was well known to the said Dennis Ogalo Obanda. The said Michael Osigwar did not record or file any statement and was not listed as a witness in this case whereas the said Dennis Ogalo Obanda who filed a written statement did not testify before this Court as a witness. The evidence of the said Dennis Ogalo Obanda was not taken by this Court and the evidence impersonating him as such is therefore irregular improper and contemptuous of this Honourable Court and is also a serious crime of impersonation. The evidence should be expunged from the records of this Court and the perpetrators of this heinous act be admonished and punished to up-hold the dignity and sanctity of this Honourable Court. 9. In opposition to the Motion, the 2nd Defendant Dennis Ogalo Obanda filed both grounds of opposition dated 7th July 2025 and a replying afidavit dated 14th July 2025. 10. In his grounds of opposition, the said Dennis Ogalo Obanda has stated that the Motion is scandalous, frivolous, devoid of merit and an abuse of the process of this Court. That he came to learn of this suit in June 2020 when he was informed that the Plaintifis had sued him for general as well as special damages arising from the acts leading to the Plaintifis’ alleged eviction from the suit parcels. Prior to that, the Defendants had obtained eviction orders in Busia CMC ELC No 56 of 2018 directing that the occupants of the suit parcels vacate it. The said orders were implemented. 11. That the 2nd Defendant recorded a statement in this suit which he adopted on 12th October 2023 when he attended Court and was cross-examined by the Plaintifis’ counsel. That the said Michael Osigwar was not a party to this suit and has never recorded any statement and neither is he the father of Dennis Ogalo. That the father of Dennis Ogalo Obanda is one Clement Obanda (deceased) and he has never appeared in this Court to testify. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1938/eng@2026-04-09 3

page 3 of 6

12. The 2nd Defendant also filed a replying afidavit dated 14th July 2025 in which he confirmed that having been sued in this case, in June 2020, he instructed the firm of Okeyo Ochiel & Company Advocates to act for him. Previously, he had applied for eviction orders in Busia CMC ELC Case No 56 of 2018 and obtained eviction orders against the persons occupying the suit land. 13. That in this case, he recorded a statement which he adopted as his evidence during the trial on 12th October 2023 when he properly identified himself to the Court and the Plaintifis’ counsel before testifying. He was then cross-examined. 14. He denied having made arrangements with any person to impersonate him. That his father is one Clement Obanda who died a long time ago and not Michael Osigwar as alleged by the Plaintifis. The said Clement Obanda never appeared before the Court to testify and there is no substantive evidence of impersonation since he personally testified on behalf of the 1st to 7th Defendants. The application is devoid of any merit, is scandalous, frivolous and an abuse of the process of this Court. It should be dismissed. 15. The Plaintifi filed a further afidavit dated 7th October 2025 in which he reiterates that he knows the 2nd Defendant personally and it was not him who testified on 12th October 2023. That the person who testified was actually Michael Osigwar and if this Court can play the recorded footage of the proceedings of that day, they will confirm that the person who appeared in Court and testified was not Dennis Ogalo Obanda but Michael Osigwar. The evidence of Dennis Ogalo Obanda should be expunged from the record. 16. I need to add that annexed to the replying afidavit was a copy of the Identity Card of Dennis Ogalo Obanda. 17. The Court directed that the application be canvassed by way of written submission. However, only Mr Okeyo instructed by the firm of Okeyo Ochiel & Company Advocates filed submissions on behalf of the 1st to 7th Defendants. The other Defendants did not file any responses to the application and Mr Odhiambo Ouma did not file any submissions. 18. I have considered the application, the rival afidavits by the Plaintifi and the 2nd Defendant and the submissions filed. 19. This Court has been asked to expunge the testimony of Dennis Ogalo Obanda from the record on the basis that the person who took the witness stand and testified on 12th October 2023 was infact not him but it was his father Michael Osigwar. The said Dennis Ogalo Obanda who is the 2nd Defendant has averred in his afidavit that he was the one who testified and that his father is infact one Clement Obanda who died long time ago. What I find strange is that the 2nd Defendant Dennis Ogalo Obanda who introduced himself as such and testified on 12th October 2023 did so in the presence of the Plaintifi and his counsel Mr Odhiambo Ouma. He was then cross-examined by Mr Odhiambo Ouma and re-examined by Mr Maxwell Okeyo at length. Indeed the proceedings went on upto 1pm and had to be adjourned because my Court Assistant Tracy Ajwang was feeling un-well. It is not clear why the Plaintifi did not bring up the issue of impersonation when the said Dennis Ogalo Obanda was testifying on 12th October 2023 rather than wait until 18th December 2024, almost one year later, to raise that issue. Nothing stopped him from alerting the Court on 12th October 2023 the moment the said Dennis Ogalo Obanda took to the witness stand, was sworn, identified himself and proceeded to testify. It must be remembered that the Court does not know the parties and their witnesses unless of course they have testified before or are in the category of expert witnesses who frequent the Courts to testify. The Court will only be able to intervene when counsel of a party raises the issue of the identity of a witness the moment he or she takes the witness box and starts testifying. That happens https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1938/eng@2026-04-09 4

page 4 of 6

quite often when counsel start to cross-examine witnesses and would usually ask for their identification documents. That it took the Plaintifi this long to raise the issue can only mean that he is not sure himself about who testified. 20. The fact that the Plaintifi is not certain about the identity of the person who testified on 12th October 2023 and introduced himself as Dennis Ogalo Obanda, the 2nd Defendant, is compounded by the fact that he has averred in paragraph 5 of his supporting afidavit that the person who testified as Dennis Ogalo Obanda was infact his father Michael Osigwar a former councillor of the defunct county council of Busia and well known to him. But Dennis Ogalo Obanda has himself averred in paragraph 13 of his replying afidavit, that his father Clement Obanda is deceased having died a long time ago and not Michael Osigwar as alleged. 21. It is also instructive to note that in his submissions, counsel for the 2nd Defendant Dennis Ogalo Obanda has stated thus: “ Your Lordship, the 2nd Defendant herein Dennis Ogalo Obanda instructed our firm in June 2020 when he learnt that he had been sued for general and special damages. That we entered appearance to defend the same claim, his statement recorded which statement was to be relied on in the (sic) defending of the suit. On 12th October 2023, he testified in open Court in the presence of the Plaintifis and their advocate as stated in his replying afidavit dated 14th July 2025. In the afidavit he states that he attended Court on the aforementioned date and adopted his statement as evidence in chief having properly identified himself both to the Court and to the Plaintifis’ advocate. That the said advocate proceeded and cross-examined him on the contents of the written statement and the general information regarding the suit. At no given point was the issue of impersonation brought up by either the Plaintifis or their advocate.” Counsel ends his submissions by stating that: “ Your Lordship, the 2nd Defendant/respondent’s evidence was adduced before Court in a fair manner and in the presence of the advocates from both parties and in the presence of the Plaintifis. Expunging such evidence from the Court records will be prejudicial to the Defendant’s case and that will amount to denying the 2nd Defendant/respondent the right to a fair trial.” It must be remembered that between Mr Odhiambo Ouma and Mr Maxwell Okey, it is only the latter who can confirm with certainty that the 2nd Defendant Dennis Ogalo Obanda is the witness who recorded the statement dated 18th January 2022 and adopted it as his evidence during the hearing on 12th October 2023. Clearly, Mr Odhiambo Ouma had not met the 2nd Defendant prior to 12th October 2023 when he testified in Court. Therefore, when Mr Maxwell Okeyo called him to testify without any objection from any of the parties or counsel with none requiring to produce his identification documents, and bearing in mind the inconsistencies in the Plaintifis’ assertion about who actually testified on that day, it would be rather far-fetched to accuse Dennis Ogalo Obanda of impersonation which, as a criminal ofience, must be proved beyond any reasonable doubt. And this Court would be descending into the arena of confiict and wading into the jurisdiction of another organ of state by purporting to summon Michael Osigwar and punishing him for impersonation when he is neither a party in this case nor https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1938/eng@2026-04-09 5

page 5 of 6

is there cogent evidence that the testified in place of Dennis Ogalo Obanda on 12th October 2023. 22. The proceedings of 12th October 2023 were also not virtual and therefore they were not recorded. It is not possible to get any footage of the same as suggested by the plaintifis. 23. In the circumstances and having considered the Notice of Motion dated 10th March 2025, this Court issues the following dispositive orders: 1) The Motion is dismissed. 2) Costs to the 2nd Defendant. BOAZ N. OLAO JUDGE 9TH APRIL 2026 Ruling dated, signed and delivered on this 9th day of April 2026 by way of electronic mail and with notice to the parties. Mention on 13th May 2026 before Waithaka J to take a date for hearing and final determination before the Judge. BOAZ N. OLAO JUDGE 9TH APRIL 2026 Explanatory notes: This ruling was due for delivery on 10th December 2025. However, following my transfer to Iten Court which was efiective 15th December 2025, I had to prioritize delivery of my rulings and judgments hence the delay. The same is regretted. BOAZ N. OLAO JUDGE 9TH APRIL 2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1938/eng@2026-04-09 6

page 6 of 6