Afizi Nyambu Ibrahim & 8 others v Geodev (K) Limited & 9 others

their plots by occupation and by the recognition of their neighbours rather than by any document of title. 2. In or about the year 2023 the County Government of Taita Taveta, the 4th Defendant, engaged Geodev (K) Limited, the 1st Defendant, to carry out physical planning, topographical survey and cadastral mapping of the settlement under the Second Kenya Informal Settlements Improvement Project, implemented in commonly collaboration called with the KISIP II, National Government through the Ministry responsible for lands. The declared object of the exercise was to regularise informal tenure, to lay out roads and public utilities, and ultimately to deliver titles to the occupants. That is, on any view, a laudable public purpose. 3. The Plaintiffs are residents of Soko ya Zamani. Their complaint is that in the course of that exercise their names were removed from the records of the settlement, that plots which they and their families had occupied for decades were subdivided, reduced or reallocated to persons unknown to them, and that the machinery established to hear and resolve grievances of precisely JUDGMENT ELCEPCC E003 OF 2024 2

page 2 of 65

that character failed, neglected or refused to determine their complaints before the exercise moved on. 4. The proceedings were commenced by a Plaint dated and filed on 26th November 2024. As originally framed the suit was directed against four Defendants, namely Geodev (K) Limited, the Taita Taveta Physical Planning and Land Adjudication Office, the Mwatate Land Settlement and Dispute Resolution Committee, and the County Government of Taita Taveta. The 5th to 10th Defendants, being the persons alleged to have been the beneficiaries of the impugned allocations, were subsequently joined as parties on the application of the 1st Defendant. 5. The 1st Defendant is a limited liability company incorporated under the Companies Act which was engaged as consultant to undertake the planning and mapping exercise. The 2nd Defendant is the office charged with physical planning and land adjudication functions in the County. The 3rd Defendant is the committee constituted for the purpose of hearing and resolving disputes arising in the course of the exercise. The 4th Defendant is the JUDGMENT ELCEPCC E003 OF 2024 3

page 3 of 65

county government within whose area the settlement lies and under whose authority the exercise was undertaken. 6. The 5th to 8th Defendants are retired senior officers of the Kenya Defence Forces. The 9th Defendant is a former public officer. Each of them is said to have been allotted a plot within the settlement by the defunct County Council of Taita Taveta in the early 1990s. The 10th Defendant is a businessman resident at Mwatate who claims to have purchased an interest in Plot No. 177 in the year 2014. 7. Following the joinder, the matter was referred to courtannexed mediation. That process bore partial fruit. A Partial Settlement Agreement was recorded on 10th March 2025 in Mediation No. VOI/MED/001 of 2025 resolving the claims of the 2nd, 3rd, 4th and 9th Plaintiffs in relation to Plots Nos. 15, 41, 27, 76 and 77. The residue of the dispute, being the claims relating to Plots Nos. 177, 185, 186, 78 and 79, could not be settled and proceeded to full hearing. 8. The 1st, 4th, 6th, 7th, 8th and 10th Defendants filed defences. The 10th Defendant also filed a Counterclaim. JUDGMENT ELCEPCC E003 OF 2024 4

page 4 of 65

The 2nd and 3rd Defendants, though served, neither entered appearance nor filed any defence. The 5th and 9th Defendants, notwithstanding that they had sought and obtained joinder as parties, filed no defence, called no evidence and made no submissions. The partial mediation settlement agreement of 10th March 2025 9. Before turning to the respective cases of the parties it is convenient to record the terms of the Partial Settlement Agreement of 10th March 2025, since it disposes of a substantial part of the suit and narrows what remains. The parties agreed as follows. 10. First, that Rose Mbala Kinusa, the 3rd Plaintiff, is the sole true owner of Plot No. 41, and that she is to sign the beacon certificate upon which her title will issue. Secondly, that Mwende Mbuvi Ndiwa, the 2nd Plaintiff, is the sole true owner of Plot No. 15; that her plot is to be given an additional 27 square metres; that the road JUDGMENT ELCEPCC E003 OF 2024 5

page 5 of 65

complained of is to be reduced from nine metres to seven metres by taking one metre from either side; and that rebeaconing of the reduced road is to be undertaken by the Physical Planning Office together with the 1st Defendant and the assigned surveyor. 11. Thirdly, that Johnson Morris Mwasi, the 4th Plaintiff, is the sole true owner of Plot No. 27; that three metres are to be added to his plot so that his house is not touched or destroyed by the road; and that the County Government is, through intergovernmental collaboration with the National Government, to resolve on his behalf the question of the beacon within the school compound. Fourthly, that Plots Nos. 76 and 77, having been set aside by the County Government as plots for public utility, are to be assigned to the community of Soko ya Zamani to decide how they are to be utilised, with Mr. Othiniel Mwakio, the 9th Plaintiff, taking responsibility for sensitising the community through public participation. 12. The agreement was executed by the 2nd, 3rd, 4th and 9th Plaintiffs, by Mr. Kevin Ngigi, Senior Physical Planner, and by Mr. Evance Otieno, Project Planning Officer, and was JUDGMENT ELCEPCC E003 OF 2024 6

page 6 of 65

signed and sealed by the Mediator. No party has impeached it. It follows that the claims of the 2nd, 3rd, 4th and 9th Plaintiffs in respect of Plots Nos. 15, 41, 27, 76 and 77 are settled and that what remained for hearing were the claims relating to Plots Nos. 177, 185 and 186, and the residual claim of the 9th Plaintiff to Plots Nos. 78 and 79. The plaintiffs’ case and evidence (i) The pleadings 13. By paragraph 14 of the Plaint the Plaintiffs aver that at all material times they are the bona fide and beneficial owners of the parcels known as Plot Numbers 177, 15, 41, 27, 185, 186, 76, 77, 78 and 79, all situate at Soko ya Zamani within the Mwatate Old Market Settlement in Taita Taveta County. 14. The 1st Plaintiff avers that during the exercise his plot was at the initial stage given the number 177, formerly Plot No. R285 (24), and his name was entered into the records of the 1st and 2nd Defendants as representing the family of his late father, Ibrahim Chome Suleiman. He avers that JUDGMENT ELCEPCC E003 OF 2024 7

page 7 of 65

he later discovered that the parcel had been subdivided without his knowledge or consent and a portion issued to the 10th Defendant. 15. The 2nd Plaintiff, who claims Plot No. 15, and the 4th Plaintiff, who claims Plot No. 27, aver that roads which did not appear on the initial map were created through their plots, thereby reducing them, without compensation and without any offer to rectify the map. The 3rd Plaintiff, who claims Plot No. 41, avers that she was informed that her plot had been sold to unknown persons by unknown sellers, and that the identity of those persons was withheld from her. 16. The 5th and 6th Plaintiffs aver that they are the owners of Plot No. 185 but that their names were removed from the records and the plot issued to a stranger without their knowledge, permission or consent. The 7th Plaintiff makes a like complaint in respect of Plot No. 186. The 8th Plaintiff is the elder brother of the 5th, 6th and 7th Plaintiffs and represents the interest of the family of the late Mohamed Badi alias Mwalimu Shilingi in both parcels. JUDGMENT ELCEPCC E003 OF 2024 8

page 8 of 65

17. The 9th Plaintiff avers that land which had been set aside for public utility was subdivided into four plots numbered 76, 77, 78 and 79 and given to unknown persons. 18. Common to all the Plaintiffs are the averments in paragraphs 24 to 28 of the Plaint. The Plaintiffs plead that despite taking their complaints to the 3rd Defendant, which was constituted by the 1st and 2nd Defendants for the very purpose of hearing and resolving disputes, that committee failed, neglected or refused to determine them; that the 1st, 2nd and 3rd Defendants resolved to ignore the complaints and to proceed regardless; and that the new map will cause some 176 families to be displaced or to lose their plots without compensation, some of them having lived in the area for more than fifty years. 19. On the strength of those averments the Plaintiffs seek a mandatory injunction restraining the 1st, 2nd and 3rd Defendants from continuing with the process until all disputes have been resolved; orders compelling the 1st to 4th Defendants to resolve all land and settlement related disputes before proceeding; orders compelling them to rectify the map or in the alternative to compensate the JUDGMENT ELCEPCC E003 OF 2024 9

page 9 of 65

affected persons where new roads have been created; an order directing the Officer Commanding Mwatate Police Station to ensure that the orders of the Court are maintained; costs and interest; and any other relief the Court may deem fit to grant. (ii) The reply and defence to counterclaim 20. By their Reply dated 24th February 2026 the Plaintiffs join issue with the 10th Defendant and plead that the documents upon which he relies are forged and that the 1st to 4th Defendants assisted him in making them. Six particulars of forgery agreement produced are by pleaded: the 10th that the sale Defendant, that produced by the 1st Defendant, and that used on the joinder application differ from one another; that the sealing transaction agreement is undated and discloses no purpose; that the transfer document bears two different dates on the same page together with a private telephone number and a different identity on its second page; that the rates payment request and the payment receipt bear different plot descriptions; that the Property Rates Payment Request of 9th February 2026 differs in content JUDGMENT ELCEPCC E003 OF 2024 10

page 10 of 65

from that held by the 1st Plaintiff dated 15th January 2026; and that the payment receipts bear dates which have been back-dated. 21. By their Written Statement of Defence to the Counterclaim the Plaintiffs deny each allegation of fact and law in the Counterclaim and pray that it be dismissed with costs. (iii) The Plaintiffs’ evidence 22. The Plaintiffs called twelve witnesses. Ten testified on 23rd March 2026 and two on 11th June 2026. All of them adopted their written statements dated 31st March 2025 as their evidence in chief. 23. PW1, Afizi Nyambu Ibrahim, is the 1st Plaintiff. He testified that he is the son of the late Ibrahim Chome Suleiman and Mwanakombo Chari, and produced his bundle of documents dated 16th March 2026 as PExhibit 1 “A”. He said the Plaintiffs are the owners of the plots and are in occupation. In cross-examination he confirmed that the 1st Defendant came on the ground in April 2024; that he testifies in respect of Plot No. 177 only and cannot comment on the other plots; that no document bears his JUDGMENT ELCEPCC E003 OF 2024 11

page 11 of 65

own name and he is before the Court on behalf of the family; that Feisal K. Ibrahim and Abushiri Mwanyasi Chome are his brothers; that he attended the mediation but was not satisfied with the process; and that the family never sold the plot and he was not involved in any sale. He said the County officials never called him to resolve the dispute. 24. PW2, Bahati Mohamed Baya, is the 6th Plaintiff. He testified that his names in respect of Plots Nos. 185 and 186 were removed from the register without explanation, and that the family had supplied all the documents required of them by the 1st Defendant. In crossexamination he said the land belonged to his father, Mohamed Badi; that he holds no document in his own name; that he knows the persons who received the plots; and that the issue was discussed at the meeting of 11th December 2024, adding that had there been an agreement the Plaintiffs would not have come to court. 25. PW3, Saumu Makumbo Ibrahim, is a daughter of the late Ibrahim Chome Suleiman. She testified that her plot is No. 177, that Peter Kamau had constructed on the family JUDGMENT ELCEPCC E003 OF 2024 12

page 12 of 65

plot, and that the family wants it back. In crossexamination she said her father died in 2006; that the family had allowed Feisal and Abushiri to manage the property so that they could obtain some income; and that the family has evidence that Mr. Kamau was paying rent to them. She said she had never asked her brothers whether they had sold the property. 26. PW4, Juma Ashim Mohamed, is the 5th Plaintiff. He testified that his plot is number 185 only; that he is a son of Mohamed Badi; that the plot belonged to his father; and that his name was removed from the register. In crossexamination he conceded that he has no document showing that his name was in the register and that he does not know who removed it or what name replaced it. 27. PW5, Stanley Gilbert Mwasi, a man of 76 years, testified in respect of Plots Nos. 185 and 186. He said the plots belong to the children of the late Mohamed Badi, who used to stay and work there. In cross-examination he said he never attended any meeting concerning the plots and that the information he had was passed on to him. JUDGMENT ELCEPCC E003 OF 2024 13

page 13 of 65

28. PW6, Suleiman Musa Kimani, likewise testified that Plots Nos. 185 and 186 belong to the late Mohamed Badi. He conceded that he holds no documents and that he is not a member of the family. 29. PW7, Mzee Badi Mohamed, is the 8th Plaintiff and a son of the late Mohamed Badi. His evidence was the fullest of the family witnesses. He said the plots as now numbered were created by the 1st Defendant, which was introduced to the residents by the village elder; that the family supplied the details requested of them and their details were entered on the map; that nobody else laid claim to the plots at that stage; and that at a later meeting the family discovered that their names were missing and had been replaced by the names of other persons, which is why they came to court. In cross-examination he said his father came to the property in 1947 and was on the land when the County Council came in 1972, though his father’s name was not among those then registered; that he did not sign any beacon certificate; and that there are three semi-permanent houses on the land. Cross- examined by counsel for the 4th Defendant he said the JUDGMENT ELCEPCC E003 OF 2024 14

page 14 of 65

family met the County on 11th December 2024; that the family had filed the complaint; that the matter was taken to the Grievance recommendations were Redress Committee and made, minutes of 11th the December 2024 directing that Plot No. 185 was to go back to the family, but that the County refused to implement those resolutions; that the family did not agree during the mediation; that they had complained as far as the Governor; and that the County Committee declined to hear them and told them to go to court. 30. PW8, Juma Mwakanyanga Kichocho, testified that Mohamed Badi was the owner of the plots, that he used to live there, repair bicycles at the place and serve as an Imam. He said the elders would know the initial owners because no documents were issued in those days. He is not a member of the family and has attended no meeting with the County. 31. PW9, Ali Badi Mohamed, is the 7th Plaintiff. He testified that he has been on the plot since birth and that Plot No. 186 was reduced and a portion given to someone else. In cross-examination he said his father died in 1988 when he JUDGMENT ELCEPCC E003 OF 2024 15

page 15 of 65

was about two years old; that the family never saw their father sell the land to anyone; that the family holds no documents; and that had the land been sold there ought to have been records. He said he attended meetings to resolve the dispute but no agreement was reached, and blamed the County Government for failing to assist. 32. PW10, Mwanakombo Chari Chome, is the widow of the late Ibrahim Chome Suleiman. She testified that the land belonged to her late husband and that Peter Kamau is presently using it. She said she found a person on the land who told her he had come there through someone and was paying rent. Cross-examined by the Court she said the land has always been hers, that she had her first-born son before independence and was already tilling the land at that time. 33. PW11, Mwamkonu William Mwanyasi, retired in 2016 as Chief of Mwatate Location. His evidence is of particular importance and I set it out with some care. He said he knows the Plaintiffs very well and has known them for many years; that of the Defendants he knows only Peter Njuguna. He said Mzee Ibrahim was a businessman at JUDGMENT ELCEPCC E003 OF 2024 16

page 16 of 65

Mwatate who used to buy plots for use, and that when he grew old he gave two plots to his sons: one plot measuring 100 by 50 at the old market to Afizi, Abushiri and Feisal, and another at Mwatate A to Suleiman, the younger brother, and one of their sisters. He said the family later met because Feisal and Abushiri were selling the family plot without the consent of the family; that he was invited to attend but was prevented by other commitments; that the meeting was held in 2014; and that the outcome was that nobody was allowed to sell the property and that everyone was to collect the rent from his own room. He said Abushiri and Feisal came to his office and told him that Kamau wanted to rent the property at the old market, and that he referred them to the larger family; that he later heard that the property had been sold; and that members of the family came to him. 34. Cross-examined by the 1st Plaintiff, PW11 said that only the rooms were given for the purpose of collecting rent, that the signature appearing on the document of 21st July 2014 is his, and that the plot belongs to Ibrahim Suleiman, the father of the 1st Plaintiff. Cross-examined by Mr. JUDGMENT ELCEPCC E003 OF 2024 17

page 17 of 65

Okadia, he confirmed that the signature of 21st July 2014 is his signature and is genuine; that he did not attend the meeting but confirmed the resolution; and that Mr. Peter Kamau had an agreement with Feisal and Abushiri. 35. PW12, Abushiri Mwanyasi Kombe, is one of the two men from whom the 10th Defendant says he bought the parcel. He was summoned by the Court on its own motion. He testified that Afizi is his brother, that he is the fifth born, and that his father was Ibrahim Suleiman. He said in terms: “I had rented the house to Kamau. We never did any agreement. It was only in 2014. There was no witness. He paid me Kshs. 105,000/=. I am not aware how much Feisal was given. We did not have any authority to rent or lease to Peter Kamau.” He said Peter still manages the property. Cross-examined by the 1st Plaintiff he said he never signed any document to rent the property and that the 1st Plaintiff had never threatened him or his family. Cross-examined by Mr. Okadia he said Mr. Kamau gave them money for use as consideration, that one room fetches about Kshs. 3,500 per month, that Mr. Kamau is JUDGMENT ELCEPCC E003 OF 2024 18

page 18 of 65

currently collecting the rent, and that nothing has been received beyond the sum paid in 2014. The defence, counterclaim and defence evidence (i) The 10th Defendant defence and counterclaim 36. By his Statement of Defence and Counterclaim dated 19th February 2026 the 10th Defendant denies that the Plaintiffs are the lawful proprietors of the parcel claimed by the 1st Plaintiff. He pleads that the parcel numbered 180, arising out of Plot No. 177, was allocated to him on account of a valid transfer of interest from two of the 1st Plaintiff’s brothers, Feisal K. Ibrahim and Abushiri Mwanyasi Chome. He pleads that the agreement was concluded in 2014, that he paid the accumulated rates arrears, lodged the requisite documents and took possession, and that he has since paid rates and rents to the 4th Defendant as and when called upon. 37. The agreement is pleaded to have been reduced into writing in a document titled “Mkataba wa Biashara, Uuzaji wa Plot”, and to have been confirmed before the Chief of Mwatate Location, JUDGMENT ELCEPCC E003 OF 2024 Mwamkonu W. Mwanyasi, by a 19

page 19 of 65

document titled “Uthibitisho wa Mkataba na Makubaliano” dated 21st July 2014, which the 10th Defendant says was witnessed by the 1st Plaintiff himself, described therein as Kaka wa Wauuzaji. He pleads that in 2016 the 4th Defendant acknowledged and processed the change of ownership by a Transfer of Town or Market Plot executed by the then County Chief Officer for Lands and Mining. 38. By his Counterclaim the 10th Defendant seeks a declaration that he is the lawful proprietor and allottee of the parcel numbered 180 arising out of Plot No. 177; an order cancelling any allotment in the Plaintiffs’ favour over that parcel; an order directing the 4th Defendant to rectify its records accordingly; a permanent injunction; general damages for violation of his property and environmental rights; and costs. (ii) The 6th, 7th and 8th Defendants 39. The 6th, 7th and 8th Defendants plead that each of them was allotted a plot within the Mwatate settlement by the defunct County Council of Taita Taveta in recognition of long service in the armed forces of the Republic, that each JUDGMENT ELCEPCC E003 OF 2024 20

page 20 of 65

paid the requisite allotment fees, and that the parcels now numbered 185 and 186, or parcels derived from them, are the parcels so allotted. (iii) The 1st and 4th Defendants 40. The 1st Defendant pleads that it was engaged as a technical consultant only; that its mandate was confined to planning, survey and mapping; that it took no part in the identification of beneficiaries save to record the names supplied to it by the 4th Defendant and the community; and that the disputes complained of predate its engagement. The 4th Defendant pleads that it acted throughout within its constitutional and statutory planning mandate, that the Plaintiffs hold no registered title capable of impeaching a lawful planning process, and that the suit is premature for non-exhaustion of the grievance redress machinery established under the project. (iv) The Defence evidence 41. The Defence called six witnesses. Five testified on 24th March 2026 and one on 11th June 2026. JUDGMENT ELCEPCC E003 OF 2024 21

page 21 of 65

42. DW1, Evance Otieno, is an Environmental and Planning Officer employed by the 1st Defendant and was the Project Officer for the assignment. He testified that the 1st Defendant was contracted in connection with a Ministry of Lands project and began work in 2024; that the major task was mapping to facilitate the issuance of titles; that the company acted on information given to it by the community, the National Government and the County Government; and that the Grievance Redress Committee was instituted to address emerging issues. He said the 1st Defendant was informed of the issues concerning the names only in July 2024, had not interacted with those names earlier, and attended no dispute resolution meeting, although the minutes were shared with it. He said the minutes showed that Plot No. 185 was to be subdivided to cater for the claimants and that the allotment letters were also shared. 43. In cross-examination DW1 said the 1st Defendant was contacted by the Kenya Informal Settlements Improvement Project; that it could not override any decision of the Mwatate Dispute Resolution Committee; JUDGMENT ELCEPCC E003 OF 2024 22

page 22 of 65

that the Settlement Committee is constituted by the County Project Team, in which the 1st Defendant had no role; that there was a dispute over Plot No. 177 between Mr. Afizi and Mr. Peter Kamau; that the sale agreement was made in 2014, long before the 1st Defendant came into the picture in 2024; and that due diligence was done, a Registry Index Map procured, sensitisation carried out and about three participatory meetings held. Critically, he said: “The Committee resolved that Plot 177 to remain as disputed between Afizi and Kamau. No individual has been allocated the same. Nobody has been dispossessed.” 44. Cross-examined by the 1st Plaintiff, DW1 said that the information on ownership came from the Committee; that the 1st Defendant considered the documents because they came from the County; that it could not comment on variances in the dates, which were a matter for the maker; that the Grievance Redress Committee was responsible for scrutinising documents while the 1st Defendant merely received the resolutions; that it would be an issue if a document differed from what had been provided; that the agreement he had seen related to Plot No. R5285-24B11; JUDGMENT ELCEPCC E003 OF 2024 23

page 23 of 65

and that the Grievance Redress Committee minutes referred to Plot No. 177 as belonging to one Bakari Kalema. In re-examination he maintained that the 1st Defendant’s assignment ran from 2023, that the documents in question dated from 2014 to 2016 and as far back as 1982, and that the 1st Defendant did not allocate plots. 45. DW2, Major General (Rtd) Harold Tangai Mwakio, is the 6th Defendant. He testified that he served in the military for 35 years and is before the Court in respect of Plots Nos. 185 and 187, which he said were allocated to him by the Government. He said an attempt was made in 2024 to resolve the dispute out of court; that several persons attended and the Plaintiffs were present; that it was agreed that the original plot be subdivided; that beacons were placed in the presence of the Plaintiffs; and that a beacon certificate was signed. In cross-examination he said the resolution was to subdivide Plot No. 186 into four portions; that his letter of allotment, signed by the County Clerk, bore Plot No. 2, Zone 3, which he said translated to part of Plot No. 186; that he did not attend JUDGMENT ELCEPCC E003 OF 2024 24

page 24 of 65

the meeting of 30th September 2024 but sent a representative; that he has never taken possession or occupation on account of the dispute and there are no developments on the plot; and that the Court should disregard the resolution of September 2024 because the Plaintiffs had reneged on it. Cross-examined by the 8th Plaintiff he said: “My plot is No. 185. I know there is someone else claiming the same. That is Mshindo and Mwamburi. I have not developed that plot since 1992. My plot is 279. It is no longer 185. I am not from Mwatate. I do not know the area well.” He said he had asked the County to come and do beaconing in 2011 but received no response. 46. DW3, Major (Rtd) Calist D. Mwamburi, is the 7th Defendant. He testified that his plot number is 185, that he is a retired Major of the Kenya Air Force, and that he acquired the land lawfully. He said he did not attend the verification meeting himself but sent his son, who is also a serving officer; that he had contracted a person to fence the plot but that person was chased away; and that the dispute was not resolved because the matter had already JUDGMENT ELCEPCC E003 OF 2024 25

page 25 of 65

gone to court. In cross-examination he said the defunct County Council of Taita Taveta registered his interest but that he had not produced that evidence in Court; that there was an allotment letter; that after the resolution he was allocated a different number emanating from Plot No. 185; that there are no developments on the plot save a worn-out building which was not there at the time of allocation; and that he seeks no orders against the County Government. Cross-examined by the 8th Plaintiff he said Plots Nos. 185 and 186 were together before the subdivision, measuring 50 by 100, and that he does not know the Mwatate “4B” area. In re-examination he said he was not the person who carried out the subdivision, was given no document confirming that beacons had been placed, and did not verify the numbers at the County. 47. DW4, Lieutenant Colonel (Rtd) Joel Gabriel Mshindo, OGW, is the 8th Defendant. He testified that he served in the Kenya Air Force and was allocated Plot No. 186 in 1992, paid the allotment fees, and had no difficulty with the plot until later. He said the dispute was determined at a meeting at which Mzee Badi was present; that he was JUDGMENT ELCEPCC E003 OF 2024 26

page 26 of 65

told he should surrender Plot No. 186 so that it could go to Mzee Badi and the family, and that he and the others would have Plot No. 185 after subdivision; that it was made clear the subdivided plot would be of a different size though in the same location; and that the resolution was to be binding. In cross-examination he said he attended the June and July 2024 meetings; that the meetings were open and transparent and the compromise was a sacrifice for the benefit of all; that he attended the beaconing with General Tangai and Mzee Badi; that there were no constructions at the time of allocation though there is now a dilapidated structure; that he had tried to fence Plot No. 186 but there was a scuffle; and that his land rates receipts relate to Plot No. 277, which he described as a division from Plots Nos. 185 and 186. Cross-examined by the 8th Plaintiff he said his plot was initially 186 and is now 277, and that he signed a beacon certificate. 48. DW5, Peter Kamau Njuguna, is the 10th Defendant. He was sworn in Kiswahili. He testified that he has lived at Mwatate for about twenty years and bought the plot in 2014 from three brothers, Abushiri, Feisal and Afizi, JUDGMENT ELCEPCC E003 OF 2024 27

page 27 of 65

though it was Abushiri and Feisal who sold it to him. He said they told him the plot belonged to them, having been given to them by their father; that the price was agreed and the parties went to the Chief, who told them to bring witnesses; that he paid the purchase price in two instalments; that he was shown his plot; that he began developing it in 2016 and it now carries residential houses occupied by rent-paying tenants; and that in 2016 the parties went to the County Government offices and the plot was changed into his name. He said the plot was initially number 177. 49. In cross-examination by counsel for the 4th Defendant, DW5 made the following significant concessions: “The plot is in my name. The other portion is on the name of the 1st Plaintiff. Plot 177 has two portions. But the process has not been finalised. I know that the entire portion is not mine.” He added: “I pray that I be given my number or in the alternative the Plaintiff to refund my expenses in developing the plot. I have no problem with the County Government.” Cross-examined by the 1st Plaintiff he said that Ibrahim Chome died in 2006 and that he was not JUDGMENT ELCEPCC E003 OF 2024 28

page 28 of 65

shown any succession documents; that there was a consent from the family confirming the transaction, dated 21st July 2014; that the County Government document had an error on the date; that he did not forge it; and that the disclaimer appearing on the County receipt is a standard clause. 50. DW6, Kevin Ngigi Kamau, is a Physical Planner at Voi Municipality and testified for the 4th Defendant. He adopted his statement dated 28th April 2025 and produced his bundle as DW6 Exhibits 1 and 2. He said he knows the Plaintiffs and met them early in 2024; that they came to the County complaining that their plots had been subdivided without their consent; that he interacted with the 8th Plaintiff; that the object of the project was to identify boundaries and owners so as to enable titling; that he was present at some of the meetings; that a resolution was made on 30th September 2024 and the plots were marked as contested; that Mzee Badi’s case was unique and he was asked to step out of that discussion, being told afterwards that Mzee Badi had agreed to a subdivision into four; that he was present on 23rd December 2024; and JUDGMENT ELCEPCC E003 OF 2024 29

page 29 of 65

that the beacons were placed in the presence of the Plaintiffs. 51. In cross-examination DW6 said the grievance handling mechanism had been exhausted, but immediately added: “There was a National Grievance Handling Committee. We only got to the County level.” He said the names on the register came through vetting by the development committee and had been confirmed by area residents; that Mzee Badi claimed the land was ancestral although the area had been alienated as a town in 1982; that he has no authority to add any name to the register, verification being the function of the committee; and that he attended the meetings of 30th September and 11th December 2024, the resolutions of which are in the minutes. In re-examination he said the Plaintiffs were neither intimidated nor threatened, were present when the resolutions were made, and that names cannot be changed without the committee’s approval. Written submissions of the parties JUDGMENT ELCEPCC E003 OF 2024 30

page 30 of 65

52. The Plaintiffs’ submissions, trace the four stages of the identification and verification exercise, contend that the Plaintiffs’ names were removed at the fourth and final stage and replaced with the names of the 5th to 10th Defendants, and analyse the evidence parcel by parcel. As to Plot No. 177 it is submitted that the documents produced by the 10th Defendant are forged, and six species of discrepancy are identified. As to Plot No. 185 it is submitted that the documents produced by the 1st, 6th, 7th and 8th Defendants are mutually contradictory, since three separate Defendants claim the same plot on the strength of allotment letters bearing three different plot numbers. As to Plot No. 186 it is submitted that no Defendant laid claim to it in evidence. Reliance is placed on Kirugi & another v Kabiya & 3 others [1987] KLR 347 and on sections 107 of the Evidence Act and 27(1) of the Civil Procedure Act. The Plaintiffs additionally seek an order for payment of rent at Kshs. 21,000 per month from 2014, vacant possession, general damages for trespass, and that the Court take action against the 10th Defendant for defamation of the 1st Plaintiff. JUDGMENT ELCEPCC E003 OF 2024 31

page 31 of 65

53. The 4th Defendant’s submissions dated 12th August 2026, drawn by M/s Bock Advocates LLP, set the exercise in its statutory frame. It is submitted that physical planning and development control are functions devolved to county governments by Articles 185 and 186 and Part 2 of the Fourth Schedule to the Constitution; that sections 48, 52 and 56 of the Physical and Land Use Planning Act, 2019 vest the authority to prepare and enforce local physical and land use development plans; that the County Assembly approved the plan for Mwatate Old Market in December 2024; that occupational licences, rate demand notes and council receipts do not convert public land into registered private property, title being conferred by registration under sections 24 and 26 of the Land Registration Act, 2012; and that the reduction of plot sizes was necessary to accommodate public access roads. It is further submitted that the suit is premature for failure to exhaust the multi-tiered grievance framework, relying on section 9 of the Fair Administrative Action Act, 2015 and on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR); and that to halt the exercise JUDGMENT ELCEPCC E003 OF 2024 32

page 32 of 65

would prejudice 303 registered residents and 276 planned plot beneficiaries, contrary to the participatory upgrading approach approved by the Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KESC 34 (KLR). In the alternative, and importantly, the 4th Defendant invites the Court, should it find merit in the Plaintiffs’ claim, to refer their grievances back to the County Physical Planning Liaison Committee and the grievance redress framework for administrative determination. 54. The 1st, 6th, 7th, 8th and 10th Defendants’ submissions dated 13th August 2026, drawn by M/s Okadia & Co. Advocates, contend that the Plaintiffs have not discharged the burden under section 107 of the Evidence Act; that the issues predate the engagement of the 1st Defendant, which merely recorded names supplied by the 4th Defendant; that sections 4, 38, 86, 89, 96 and 119 of the Evidence Act support the regularity of documents more than twenty years old produced from proper custody; that the Plaintiffs are estopped under section 120 of the Evidence Act by their participation in the grievance JUDGMENT ELCEPCC E003 OF 2024 33

page 33 of 65

process and their confirmation of the beaconing; that persons of the stature of the 6th, 7th and 8th Defendants would not seek to disenfranchise the very people they served to protect; and that in the case of the 10th Defendant a series of improbabilities – unlimited rent-free tenancy, the collection of rent from others, the receipt of sums in the region of Kshs. 600,000, a transfer effected by the County, the payment of rates from 2014 and the erection of a gate make it highly likely that the Plaintiffs sold the parcel to him. 55. The 4th Defendant relies upon a passage attributed to County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR to the effect that private interests in unalienated public land must bow to the legitimate exercise of statutory planning powers. The authority bundled with the submissions under that name is Muthinja that is to say, County Government of Nyeri & another v Ndungu (Civil Appeal 2 of 2015) [2015] KECA 1011 (KLR) which concerns the pleasure doctrine and the dismissal of a member of a county executive committee. The passage quoted does not appear in it. JUDGMENT ELCEPCC E003 OF 2024 34

page 34 of 65

Counsel are reminded of their duty to verify the authorities they place before the Court. I have proceeded on the statutory provisions themselves, which amply support the proposition that planning is a devolved function to be exercised in the public interest. Issues for determination 56. Having considered the pleadings, which circumscribe the issues, together with the evidence and the submissions, the following issues arise for determination: (i) Whether the Plaintiffs have proved an interest in Plot No. 177, and whether the 10th Defendant lawfully acquired an interest in it or in any parcel derived from it; (ii) Whether the Plaintiffs have proved an interest in Plots Nos. 185 and 186, and whether the 6th, 7th, 8th and 9th Defendants have established competing interests; (iii) Whether the 9th Plaintiff has proved his claim to Plots Nos. 78 and 79; JUDGMENT ELCEPCC E003 OF 2024 35

page 35 of 65

(iv) Whether the conduct of the exercise complied with Article 47 of the Constitution and the Fair Administrative Action Act, 2015; (v) What reliefs, if any, ought to issue on the Plaint and on the Counterclaim; (vi) Who should bear the costs. Analysis and determination (i) Plot No. 177 (originally Plot No. R285 (24)) 57. The competing claims to this parcel lie between the family of the late Ibrahim Chome Suleiman, represented by the 1st Plaintiff, and the 10th Defendant. The burden of proof lies upon each party asserting an interest, under sections 107 and 108 of the Evidence Act, and it does not shift. 58. I deal first with the Plaintiffs’ claim. The evidence that the parcel belonged to the late Ibrahim Chome Suleiman is, in my judgment, overwhelming and, more importantly, it is not seriously contested. PW1 is his son, PW3 his daughter and PW10 his widow. PW11, the retired Chief of the location, who has no interest whatever in the outcome, testified that Mzee Ibrahim was a businessman who bought plots at Mwatate and, in old age, gave the plot JUDGMENT ELCEPCC E003 OF 2024 36

page 36 of 65

measuring 100 by 50 at the old market to his sons Afizi, Abushiri and Feisal. PW12, who is one of the two men from whom the 10th Defendant says he bought, is himself a son of the deceased. And the 10th Defendant’s own case is that he bought from the sons of the deceased. There is thus no version of the facts before me in which this parcel was not, at the material time, family property derived from the late Ibrahim Chome Suleiman. I so find. 59. That finding does not, however, carry the 1st Plaintiff quite as far as he would wish, and I shall return to that at the stage of relief. The deceased estate has not been administered. No grant of representation has been extracted. The parcel is therefore, in law, part of the free property of the estate of the late Ibrahim Chome Suleiman (deceased), and it is not the individual property of the 1st Plaintiff or of any other single beneficiary. 60. I turn to the 10th Defendant’s asserted purchase. It fails, and it fails on four independent grounds. 61. The first, and the shortest, is that the alleged vendor denies the sale. PW12, Abushiri Mwanyasi Kombe, JUDGMENT ELCEPCC E003 OF 2024 37

page 37 of 65

testified on oath that he rented the house to Kamau, that there was no agreement, that he received Kshs. 105,000, and that “we did not have any authority to rent or lease to Peter Kamau.” He is not a party. He was summoned by the Court, not by the Plaintiffs. He had nothing to gain by his evidence and, having admitted taking the money, a good deal to lose. I found him a candid witness and I accept his evidence. Where the man said to have sold denies selling, and denies having had authority to deal with the property at all, the purchaser’s claim is in serious difficulty at the very first step. 62. The second is the evidence of PW11, the retired Chief, upon whose office and signature the 10th Defendant’s chain of documents depends. His evidence was that the family met in 2014 precisely because Feisal and Abushiri were selling the family plot without the consent of the family; that the resolution of that meeting was that nobody was allowed to sell the property and that each member was to collect the rent from his own room; and that when Abushiri and Feisal came to his office it was to say that Kamau wanted to rent the property, whereupon JUDGMENT ELCEPCC E003 OF 2024 38

page 38 of 65

he referred them to the larger family. Asked directly about the document of 21st July 2014, he confirmed that the signature upon it is his and is genuine, but he said that he did not attend the meeting, and that what was given was the rooms, for the purpose of collecting rent. That evidence is entirely consistent with PW12’s account, with PW3’s evidence that the family had allowed Feisal and Abushiri to manage the property so that they could obtain some income, and with PW10’s evidence that she found a man on the land who said he was paying rent. It is inconsistent with a sale. 63. The third is the want of capacity in the vendors. Even if the transaction of July 2014 were a sale, the deceased having died in 2006 the parcel formed part of his unadministered estate. Section 45 of the Law of Succession Act, Cap. 160, prohibits any person from taking possession of, disposing of or otherwise intermeddling with the free property of a deceased person otherwise than under a grant of representation or the express authority of that Act. Section 82 confines the power to sell to personal representatives holding a grant. JUDGMENT ELCEPCC E003 OF 2024 39

page 39 of 65

Two of several children of a deceased man cannot, without a grant, convey the whole or any part of his estate. The 10th Defendant admitted in cross-examination by the 1st Plaintiff that Ibrahim Chome died in 2006 and that he was not shown any succession documents. He was, in effect, on notice. A purchaser takes no better title than his vendor is able to give, and these vendors had none to give. 64. The fourth is the weight properly attaching to the documents of 2016. The Transfer of Town or Market Plot dated 5th December 2016 was issued upon the footing of a transaction which, for the reasons given, passed no interest. An administrative act cannot validate a transaction which is a nullity in law. As to the rates and rents receipts on which the 10th Defendant places much reliance, they do not prove ownership, and the point is put beyond argument by the printed disclaimer on the face of his own Payment Receipt No. 83589 of 17th December 2020, to the effect that acceptance of payment of rates from a rate payer is not conclusive evidence of ownership of the property. DW5 sought to brush this aside as a JUDGMENT ELCEPCC E003 OF 2024 40

page 40 of 65

standard clause. It is a standard clause because it is a true one. Payment of rates evidences a dealing and may be relevant to possession; it does not confer title. That is also, I note, the 4th Defendant’s own submission, made in relation to the Plaintiffs’ receipts, and it must apply with equal force to the 10th Defendant’s. 65. I should deal with the contrary arguments. Counsel for the 1st, 6th, 7th, 8th and 10th Defendants invites me to reason from improbability: that no owner would permit an indefinite rent-free tenancy, or allow a tenant to sublet and collect rent, or receive sums of the order of Kshs. 600,000, unless there had been a sale. The argument is attractively put but it founders on the evidence. There was no evidence of any payment of Kshs. 600,000; PW12 spoke of Kshs. 105,000 and the 10th Defendant of two instalments of unstated amount. And the improbability dissolves once PW11’s evidence is accepted: what the family permitted was precisely the arrangement he described, the letting of rooms for rent, entered into by two brothers who exceeded such authority as they had. Speculation as to what parties would or would not have JUDGMENT ELCEPCC E003 OF 2024 41

page 41 of 65

done is no substitute for proof, and the burden under section 107 of the Evidence Act lay upon the party asserting the sale. 66. The plea of estoppel under section 120 of the Evidence Act fares no better. It is founded upon the Plaintiffs’ participation in the grievance process and their alleged confirmation of the beaconing. But the 1st Plaintiff’s consistent position, from his complaint to the Committee through the mediation to the witness box, has been one of objection, not assent. Estoppel cannot be built upon a representation that was never made. 67. I find, accordingly, that the 10th Defendant acquired no proprietary or beneficial interest in Plot No. 177, originally Plot No. R285 (24), or in any parcel derived from it, whether numbered 174, 176 or 180. His occupation of the premises is, and has at all times been, that of a tenant of rooms let to him by Abushiri Mwanyasi Chome and Feisal K. Ibrahim, who acted without the authority of the family and without a grant of representation. JUDGMENT ELCEPCC E003 OF 2024 42

page 42 of 65

68. It is right to record, in fairness to the 10th Defendant, three things. He did not conceal his position; he told the Court frankly that the process had not been finalised, that the other portion stood in the 1st Plaintiff’s name and that “the entire portion is not mine.” He parted with money in 2014 and has spent money on the premises since 2016. And he asked, in the alternative, either for his number or for a refund of his expenses. Those are not the words of a man who set out to defraud. The consequence of my finding is that he must look for his remedy to those who took his money, and not to this land. Nothing in this judgment is intended to prejudice such a claim as he may be advised to bring against Abushiri Mwanyasi Chome and Feisal K. Ibrahim for the return of the sums paid, or for any other relief. (ii) Plots Nos. 185 and 186 69. The Plaintiffs’ case on these parcels was advanced by seven witnesses. Four of them PW2, PW4, PW7 and PW9 are children of the late Mohamed Badi alias Mwalimu Shilingi. Three PW5, aged 76, PW6 and PW8 are long- standing residents of Soko ya Zamani with no interest in JUDGMENT ELCEPCC E003 OF 2024 43

page 43 of 65

the outcome. Their evidence was consistent and mutually corroborative: that the area formerly known as Mzee Shilingi Boma, comprising the parcels now numbered 185 and 186, was occupied by the late Mohamed Badi, who lived there, worked there as a bicycle mechanic and served the community as an Imam, and that his children have remained in occupation since his death. PW7 traced the occupation to 1947. Nothing in cross-examination shook that account, and no witness for any Defendant contradicted it. Indeed DW2, DW3 and DW4 each accepted that they are not from Mwatate, that they have never taken possession, that they have carried out no development in more than thirty years, and, in the case of DW3, that a building stands on the plot which was not there when he says he was allocated it. 70. It is true, as counsel emphasised, that the Plaintiffs produced no documents. But that is the nature of an informal settlement undergoing regularisation; it is the very reason the exercise was commissioned. As PW8 observed, the elders would know the initial owners because no documents were issued in those days. Where JUDGMENT ELCEPCC E003 OF 2024 44

page 44 of 65

no register existed, long, open and undisturbed occupation, coupled with community recognition, is the best evidence available, and a court is not to disbelieve it merely because it is not written down. 71. Against that stands the case of the 6th, 7th and 8th Defendants, that each was allotted a plot by the defunct County Council of Taita Taveta in the early 1990s in recognition of military service. I approach that case with respect for the service of these officers, which is not in question. But the question before me is not whether they were allotted a plot somewhere in Mwatate. It is whether the plot allotted to any of them is Plot No. 185 or Plot No. 186. On that question their case collapses under its own weight. 72. Consider what emerged. All three of them claimed, at one point or another, the same single plot. DW2 said in chief that he is before the Court in respect of “Plots Nos. 185 and 187”; in cross-examination by the 4th Defendant’s counsel he said his allotment letter reads Plot No. 2, Zone 3, which “translated to Plot No. 186”; and in crossexamination by the 8th Plaintiff he said “my plot is No. JUDGMENT ELCEPCC E003 OF 2024 45

page 45 of 65

185” and then, in the same answer, “my plot is 279. It is no longer 185.” He also said, of his co-Defendants, “I know there is someone else claiming the same. That is Mshindo and Mwamburi.” DW3 said his plot number is 185, but produced no allotment letter to the Court and conceded he had not verified the numbers at the County; the document in the 1st Defendant’s bundle attributed to him is an undated note referring to Plot No. 5, Mwatate “B”, Zone 83. DW4 said he was allotted Plot No. 186 in 1992, though the letter attributed to him is dated 15th September 1993 and refers to Plot No. 4, and his rates receipts relate to Plot No. 277. 73. The result is that three retired officers assert entitlement to one or two parcels on the strength of allotment documents bearing four different plot numbers Plot 2 in Zone 83, Plot 5 in Zone 83, Plot 4, and, on DW2’s later account, Plot 1 in Section IV none of which is Plot No. 185 or Plot No. 186. No witness was called from the 4th Defendant to explain how any of those numbers came to be equated with the parcels in dispute, and DW6, the 4th Defendant’s own witness, did not undertake that exercise. JUDGMENT ELCEPCC E003 OF 2024 46

page 46 of 65

I am invited to accept that a single plot was allotted to three different men. I cannot. The 6th, 7th and 8th Defendants have not proved, on a balance of probabilities, that the parcels allotted to them are the parcels now numbered 185 and 186, and their claims to those parcels fail. 74. The 9th Defendant, to whom the minutes of 23rd December 2024 are said to have allocated Plot No. 185, filed no defence and called no evidence. The burden nevertheless remained on the Plaintiffs to prove their case even in the absence of a contest: Kirugi & another v Kabiya & 3 others [1987] KLR 347, upon which the Plaintiffs themselves rely, is clear that failure by a defendant to contest does not absolve a plaintiff of the duty to prove his case to the required standard. For the reasons already given the Plaintiffs have discharged that burden, and the claim succeeds as against the 9th Defendant also. The same applies to the 5th Defendant, against whom, however, no specific allocation was proved and as to whom no order is required beyond the general declaration. JUDGMENT ELCEPCC E003 OF 2024 47

page 47 of 65

75. There remains the argument that a binding compromise was reached on 30th September 2024, by which Plot No. 186 was to revert to the family of Mzee Badi and the officers were to share Plot No. 185 after subdivision, and that the Plaintiffs are estopped by having attended the beaconing and signed beacon certificates. I reject that argument for three reasons. First, PW7 denied signing any beacon certificate and I accept his denial; no beacon certificate bearing his signature was produced. Secondly, the arrangement, whatever its status, was expressly repudiated by the Plaintiffs, and DW2 himself invited the Court to disregard it. A party cannot ask the Court to set an arrangement aside and simultaneously rely upon it as an estoppel. Thirdly, and decisively, the later resolution of the Grievance Redress Committee on 11th December 2024 spoken to by PW7, confirmed in substance by DW1 and attended by DW6 was that Plots Nos. 185 and 186 should go back to the family of the late Mohamed Badi alias Mwalimu Shilingi and that Plot No. 177 should go back to the family of the late Ibrahim Chome. That JUDGMENT ELCEPCC E003 OF 2024 48

page 48 of 65

resolution superseded whatever had gone before, and it was not implemented. 76. I find, therefore, that Plots Nos. 185 and 186 at Soko ya Zamani, Mwatate Old Market, were at all material times occupied by and belonged to the late Mohamed Badi alias Mwalimu Shilingi (deceased) and now form part of his estate; and that the 5th, 6th, 7th, 8th, 9th and 10th Defendants have established no interest in either parcel. (iii) Plots Nos. 78 and 79 77. The 9th Plaintiff, Othiniel Mwakio, claimed that Plots Nos. 76, 77, 78 and 79 had been set aside for public utility and were allocated to unknown persons. Plots Nos. 76 and 77 were dealt with by the Partial Settlement Agreement. As to Plots Nos. 78 and 79, the 9th Plaintiff did not testify. He filed no witness statement and gave no evidence. No other witness spoke to those parcels. A claim which is pleaded but not proved must fail, and this one does. 78. I record, however, that no Defendant asserted any private interest in Plots Nos. 78 and 79 either, and that the 4th Defendant’s own submissions emphasise the necessity of JUDGMENT ELCEPCC E003 OF 2024 49

page 49 of 65

public utility reserves within the approved plan. Land set apart for public utility within a settlement scheme is not available for private allocation, and the 1st to 4th Defendants are under a continuing duty to ensure that whatever is designated for public utility in the approved Local Physical and Land Use Development Plan is maintained as such. That duty exists independently of this suit and requires no order of mine. (iv) Article 47 and the conduct of the exercise 79. Article 47(1) of the Constitution guarantees to every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and Article 47(2) entitles a person likely to be adversely affected by administrative action to written reasons. Those guarantees are given statutory expression in sections 4 and 6 of the Fair Administrative Action Act, 2015. Article 10 requires public participation and accountability in the exercise of public functions, and Article 40 protects the right to property, which extends to the interests of persons in occupation of land pending regularisation. JUDGMENT ELCEPCC E003 OF 2024 50

page 50 of 65

80. I begin by saying what the evidence does not establish. It does not establish that the exercise was unlawful in its conception or in its general execution. The 4th Defendant acted within the mandate conferred by Articles 185 and 186 and Part 2 of the Fourth Schedule to the Constitution and by the Physical and Land Use Planning Act, 2019. Sensitisation was carried out, participatory meetings were held, a grievance framework was established, and disputed parcels were marked as contested rather than allocated. The narrowing of roads and the addition of metres agreed in mediation shows an authority willing to accommodate. To the extent that the Plaintiffs asked this Court to halt the entire exercise, that relief would be disproportionate and would prejudice, as the 4th Defendant rightly submits, the many residents and beneficiaries who are not before me and who await their titles. I decline it. 81. But the exercise did fail these Plaintiffs, and it failed them at the one point that mattered. A grievance mechanism which receives a complaint, deliberates upon it and resolves it in the complainant’s favour, but whose JUDGMENT ELCEPCC E003 OF 2024 51

page 51 of 65

resolution is then not implemented, is worse than no mechanism at all, for it raises an expectation and then defeats it. The resolution of 11th December 2024 directed that Plots Nos. 185 and 186 revert to the family of the late Mohamed Badi and that Plot No. 177 revert to the family of the late Ibrahim Chome. It was not implemented. No written reasons were given to the Plaintiffs for the departure from it. PW7’s evidence that the County Committee declined to hear them and told them to go to court stands unrebutted. And the register, on DW1’s evidence, at one stage recorded Plot No. 177 as belonging to one Bakari Kalema, a person unknown to any party in this suit and never explained. 82. In Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KESC 34 (KLR), relied upon by the 4th Defendant, the Supreme Court held that the State and its devolved units bear a positive obligation to engage in structured, participatory and regularised upgrading of informal settlements rather than arbitrary displacement. The 4th Defendant is right to invoke that decision; but it cuts both ways. The structured and JUDGMENT ELCEPCC E003 OF 2024 52

page 52 of 65

participatory process which Mitu-Bell requires is not satisfied by convening a committee whose determinations are then set aside without explanation. I therefore find that in failing to implement the resolution of 11th December 2024 in respect of Plots Nos. 177, 185 and 186, and in failing to give the Plaintiffs written reasons for that failure, the 1st to 4th Defendants fell short of the requirements of Article 47 of the Constitution and of sections 4 and 6 of the Fair Administrative Action Act, 2015. 83. That finding is confined to the Plaintiffs and to those three parcels. It does not impeach the plan, the survey or the exercise as a whole. (v) Reliefs 84. I turn to the form of relief, which in a matter of this kind requires some care. These are unregistered interests in land undergoing regularisation. This Court cannot vest a title which does not yet exist, nor should it usurp the functions of the planning authority. What it can and should do is declare the entitlements, remove the obstruction JUDGMENT ELCEPCC E003 OF 2024 53

page 53 of 65

which its findings have exposed, and direct the authority to complete its own process in accordance with those findings. 85. The first difficulty is that both families sue through beneficiaries of unadministered estates. It would be inconsistent for me to hold, as I have, that two sons of the late Ibrahim Chome Suleiman could not deal with his estate without a grant, and then to vest the parcel in another of his sons who likewise holds no grant. The declarations must therefore run in favour of the estates, and the entry in the records of the exercise must await, or be made in the name of, the personal representatives when appointed. That is not a technicality; it protects the other children of both deceased men, several of whom testified before me and none of whom is a party. 86. The second concerns possession of the premises on Plot No. 177. The 10th Defendant has been in occupation since 2014 and has developed the premises, which are tenanted. He must give up possession, but he should be given a reasonable time in which to do so and the party to whom he delivers must be a person entitled to receive it. I JUDGMENT ELCEPCC E003 OF 2024 54

page 54 of 65

shall order delivery of vacant possession within one hundred and eighty days, to the personal representative of the estate upon a grant being extracted, and shall direct the Plaintiffs to take out representation. 87. The third concerns the Plaintiffs’ prayers for mesne profits at Kshs. 21,000 per month from 2014, for general damages for trespass, and for the Court to take action against the 10th Defendant for defamation of the 1st Plaintiff. None of these is pleaded in the Plaint. They appear for the first time in the written submissions. A party is bound by its pleadings, and submissions are not a vehicle for the introduction of new claims. Beyond that, no evidence of quantum was tendered; the only figure in the record is PW12’s estimate of Kshs. 3,500 per room per month, which is not proof of receipts. And a claim in defamation is a distinct cause of action which cannot be tried in these proceedings. Those prayers are declined. Any claim for an account of rents received lies, if at all, at the suit of the personal representative once appointed, and I say nothing to prejudice it. JUDGMENT ELCEPCC E003 OF 2024 55

page 55 of 65

88. The fourth concerns the prayer for an order directing the Officer Commanding Mwatate Police Station to ensure that the orders of this Court are maintained. Orders of this Court are binding and enforceable through the ordinary processes and require no such reinforcement. The prayer is declined. 89. The fifth concerns the suit against the 1st Defendant. The evidence of DW1, which I accept, is that the 1st Defendant was a technical consultant whose function was survey, mapping and planning, that it recorded such names as were supplied to it by the 4th Defendant and the community, that it had no role in the constitution of the committees or in the resolution of disputes, and that the events giving rise to this suit predate its engagement. No case was made out against it and the suit against it must be dismissed. The same is true of the 2nd and 3rd Defendants as respondents to a claim in damages, though as the organs charged with the exercise they remain the proper recipients of the directions I shall give. 90. Finally, the 4th Defendant’s alternative prayer is that, should the Court find merit in the Plaintiffs’ claim, their JUDGMENT ELCEPCC E003 OF 2024 56

page 56 of 65

grievances be referred back to the grievance redress framework for administrative determination. In the ordinary case that would be an attractive course. It is not appropriate here. The grievances have been determined once already, in the Plaintiffs’ favour, and the determination was not implemented. To send them back would be to begin again a journey which has already been completed and ignored. This Court has heard eighteen witnesses during trial and is in a position to declare the entitlements. What is required of the 4th Defendant now is implementation, not further deliberation. (vi) The Counterclaim 91. The 10th Defendant’s Counterclaim stands or falls with his asserted interest, and for the reasons given in section (i) above it falls. His prayer for a declaration of proprietorship, for cancellation of any allotment to the Plaintiffs and for rectification of the 4th Defendant’s records must be refused. His prayer for a permanent injunction against the Plaintiffs must likewise be refused. JUDGMENT ELCEPCC E003 OF 2024 57

page 57 of 65

92. As to his prayer for general damages for violation of his property and environmental rights, no evidential basis for any environmental claim appears anywhere in the pleadings or the evidence, and the reference appears to be formulaic. As to damages for interference with property rights, the institution of proceedings which a party is entitled to bring cannot found a claim in damages, and no cause of action in malicious prosecution or abuse of process is pleaded. The Counterclaim is dismissed in its entirety. (vii) Costs 93. Costs follow the event under section 27(1) of the Civil Procedure Act, but the discretion is a judicial one and the rule is not inflexible. Several considerations point away from its ordinary application here. The Plaintiffs have appeared in person throughout and their recoverable costs would in any event be modest. The suit concerns a public process affecting a considerable number of families, and litigation of that character ought not to be discouraged by the routine imposition of costs. The 5th to 9th Defendants advanced claims founded on allotment JUDGMENT ELCEPCC E003 OF 2024 58

page 58 of 65

documents issued to them by a public authority and cannot be said to have acted in bad faith in relying on them; their misfortune is that the documents do not answer to the parcels. The 10th Defendant parted with money in a transaction he had no reason to suspect and has lost both the land and his money. And the 1st to 4th Defendants, though found wanting in one respect, were engaged in a lawful public undertaking. 94. In all the circumstances I consider that the just order is that each party bears its own costs of the suit and of the Counterclaim. Final orders 95. In the result, and for the reasons set out above, I enter judgment and make the following orders: (i) The Partial Mediation Settlement Agreement recorded in Mediation No. VOI/MED/001 of 2025 on 10th March 2025 in respect of Plots Nos. 15, 41, 27, 76 and 77 at Soko ya Zamani, Mwatate Old Market, be and is hereby adopted as an order of this Court, and the parties thereto JUDGMENT ELCEPCC E003 OF 2024 59

page 59 of 65

shall implement its terms within ninety (90) days of the date hereof. (ii) A declaration be and is hereby issued that the parcel known as Plot No. 177, originally Plot No. R285 (24), at Soko ya Zamani, Mwatate Old Market, together with any parcel or parcels carved or derived from it, forms part of the free property of the estate of the late IBRAHIM CHOME SULEIMAN (Deceased). (iii) A declaration be and is hereby issued that the 10th Defendant, Peter Kamau Njuguna, holds no proprietary or beneficial interest in Plot No. 177, originally Plot No. R285 (24), or in any parcel carved or derived from it, and that the purported sale of 21st July 2014 and the Transfer of Town or Market Plot dated 5th December 2016 passed no interest to him and are of no legal effect. (iv) A declaration be and is hereby issued that the parcels known as Plots Nos. 185 and 186 at JUDGMENT ELCEPCC E003 OF 2024 60

page 60 of 65

Soko ya Zamani, Mwatate Old Market, together with any parcels carved or derived from them, form part of the free property of the estate of the late MOHAMED BADI alias MWALIMU SHILINGI (Deceased), and that the 5th, 6th, 7th, 8th, 9th and 10th Defendants hold no proprietary or beneficial interest therein. (v) A declaration be and is hereby issued that in failing to implement the resolution of the Grievance Redress Committee made on 11th December 2024 in respect of Plots Nos. 177, 185 and 186, and in failing to furnish the Plaintiffs with written reasons for that failure, the 1st, 2nd, 3rd and 4th Defendants contravened Article 47 of the Constitution of Kenya, 2010 and sections 4 and 6 of the Fair Administrative Action Act, 2015. (vi) An order be and is hereby issued directing the 1st, 2nd, 3rd and 4th Defendants, within ninety (90) days of the date hereof, to record in the register, records, JUDGMENT ELCEPCC E003 OF 2024 beacon certificates and 61

page 61 of 65

mapping of the Mwatate Old Market Informal Settlement the parcels known as Plot No. 177 (originally Plot No. R285 (24)) in the name of the estate of the late Ibrahim Chome Suleiman (Deceased), and Plots Nos. 185 and 186 in the name of the estate of the late Mohamed Badi alias Mwalimu Shilingi (Deceased), and to expunge therefrom the names of the 5th to 10th Defendants and of any other person in respect of the said parcels. (vii) An order be and is hereby issued that no letter of allotment, beacon certificate, allocation or title in respect of Plots Nos. 177, 185 and 186 or of any parcel derived from them shall issue to any person other than the personal representative of the estate concerned, and that upon a grant of representation being produced the 1st to 4th Defendants shall process the said parcels to title in accordance with the approved Local Physical and Land Use Development Plan. JUDGMENT ELCEPCC E003 OF 2024 62

page 62 of 65

(viii) A permanent injunction be and is hereby issued restraining the 5th, 6th, 7th, 8th, 9th and 10th Defendants, whether by themselves, their servants, agents, assigns or any person claiming under them, from entering upon, occupying, dealing with, transferring, charging, developing, fencing or in any manner interfering with Plots Nos. 177, 185 and 186 at Soko ya Zamani, Mwatate Old Market, or any parcel derived from them. (ix) The 10th Defendant shall deliver vacant possession of the premises standing on Plot No. 177, originally Plot No. R285 (24), to the personal representative of the estate of the late Ibrahim Chome Suleiman (Deceased) within ninety (90) days. (x) The Plaintiffs representation are in directed the estates to take out the late of Ibrahim Chome Suleiman (Deceased) and of the late Mohamed JUDGMENT ELCEPCC E003 OF 2024 Badi alias Mwalimu Shilingi 63

page 63 of 65

(Deceased) within twelve (12) months of the date hereof, with liberty to apply. (xi) The Plaintiffs’ claims in respect of Plots Nos. 78 and 79 are dismissed for want of proof. (xii) The suit against the 1st Defendant, Geodev (K) Limited, is dismissed, save that it shall comply with the directions at orders (vi) and (vii) above in so far as they fall within its mandate. (xiii) The 10th Defendant’s Counterclaim dated 19th February 2026 is dismissed. (xiv)Each party shall bear its own costs of the suit and of the Counterclaim. DATED, SIGNED and DELIVERED VIRTUALLY AT KISUMU this 17th day of September, 2026. E. K. WABWOTO JUDGE In the presence of: All the Plaintiffs acting in person. Mr. Okadi for the 1st, 6th, 7th, 8th and 10th Defendants JUDGMENT ELCEPCC E003 OF 2024 64

page 64 of 65

Ms. Wanjiku for the 4th Defendant. N/A for the 2nd, 3rd, 5th and 9th Defendants Court Assistants: Joanne Omondi and David Ngoosa. JUDGMENT ELCEPCC E003 OF 2024 65

page 65 of 65