Ashish Ravat & Chandrakant Vinodkumar Ramdatmall Pal v County Government of Kisumu & City Manager, Kisumu City

they purchased the suit properties for Kshs. 14,100,000/-; that in 2014, they applied to the 1st respondent for permission to amalgamate the suit properties and change their use from single-dwelling to multi-dwelling; that the 1 st respondent approved their application and granted permission in a letter dated 25 th September 2014; that they thereafter prepared building plans for the structures they intended to erect on the suit properties at a cost of Kshs. 63,690,000/- and commenced construction; that on 23 rd January 2021, the Respondents, through their agents and servants, without any notice to the Petitioners invaded the suit properties, demolished the buildings the Petitioners were constructing thereon, and forcibly took over possession of the premises; that on 28 th January 2021, the Respondents, without any lawful authority or right, announced to the public that they would settle traders and other business owners on the suit properties; that the actions of the Respondents amounted to constructive eviction of the Petitioners from the suit properties in breach of their rights under the Constitution of Kenya and the provisions of land laws relating to evictions; and that the eviction was illegal, null and void. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 2

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The Petitioners stated that at the time their buildings on the suit property were demolished, they had spent Kshs. 25,437,140/- on the project. 3. The Petitioners further stated that the Kisumu City Board, under which the 2nd Respondent served, had not authorised the 2nd Respondent to evict the Petitioners or seize possession of the suit properties. They also stated that the 2nd Respondent acted outside and beyond his authority or mandate in evicting the Petitioners from the suit properties. 4. The Petitioners sought judgment against the Respondents jointly and severally for: (a) A declaration that the actions of the Respondents complained of were illegal, unconstitutional, null and void; (b) A declaration that the 2 nd Respondent contravened Chapter 6 of the Constitution of Kenya as read with the Leadership and Integrity Act No. 19 of 2012 and the Public Officer Ethics Act No. 4 of 2003; (c) A permanent injunction or judicial review writ of prohibition restraining the Respondents from interfering with the Petitioners’ use and possession of the suit ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 3

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properties and more specifically from settling or otherwise putting third parties in possession of the properties; (d) A mandatory injunction or judicial review writ of mandamus compelling the Respondents to vacate the suit properties forthwith and put the Petitioners back in possession of the same; (e) Special damages of Kshs. 25,437,140/- as particularised in paragraph 45 of the petition, together with interest from the date of institution of the suit until payment in full; (f) General damages for trespass together with interest from the date of institution of the suit until payment in full; (g) General damages for the blatant contravention and breach of the Petitioner’s fundamental rights and freedoms; and (h) Costs of the petition together with interest. 5. The petition was supported by the affidavit of the 2 nd Petitioner, sworn on 24th March 2021, in which he reiterated the contents of the petition. The Respondents opposed the petition through a replying affidavit sworn by Michael Abala Wanga on 19th April 2021. Michael Abala Wanga stated that ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 4

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the Kisumu City Board was established under section 12 of the Urban Areas and Cities Act, with the key mandate of managing the City of Kisumu on behalf of the 1 st Respondent; that the Petitioners had not explained how they acquired the suit properties, whose acquisition was unprocedural, illegal, null and void; that the suit properties were initially owned by the defunct Municipal Council of Kisumu and were subsequently allocated to Kisumu Boys High School (Kisumu Boys) and Kisumu Girls High School (Kisumu Girls) through a Presidential Directive; that the two schools were issued with letters of allotment dated 30th January 2002 and 20th March 2003 respectively; that the Commissioner of Lands, prior to the said allocation, had through a letter dated 24 th June 1996, cancelled an earlier allocation of the suit properties through a letter dated 19th November 1991; and that the suit properties were owned by Kisumu Boys and Kisumu Girls, which held leasehold titles. 6. He further stated that the Petitioners acquired the suit properties fraudulently in an attempt to seize them from the two schools; that the Respondents had permission from the lawful owners of the suit properties to take possession; that ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 5

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the Respondents requested permission from the lawful owners to use the properties temporarily to resettle traders within Kisumu City, and this permission was granted; that the Petitioners invaded public land, namely, Title No. Kisumu Municipality/Block 6/244, and purported to subdivide it into various parcels to erase the original parcel's identity; that the Petitioners approached the court with unclean hands and therefore were not entitled to the orders sought; that the Respondents carried out the demolitions in the public's interest with the permission of the lawful owners; and that the Respondents had no intention of claiming ownership of the suit properties. The Respondents urged the court to dismiss the petition with costs. 7. The 2nd Petitioner filed a further affidavit on 14 th September 2021, in response to the Respondents' reply to the petition. The 2nd Petitioner clarified that they acquired Plot No. 610 and Plot No. 611 from Riya Developments Limited, Plot No. 612 and Plot No. 613 from Cornelius Ogema, Plot No. 608 from Dipakkumar Upadhyay and Hiram Pandya, and Plot No. 609 from Omkareshavar Enterprises Limited. He further stated that the suit properties were originally two parcels of ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 6

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land, namely Title No. Kisumu Municipality/Block 6/548 and Title No. Kisumu Municipality/Block 6/549, registered in the names of Richard Shiraho and Elizabeth Khadusi, respectively; that Richard Shiraho and Elizabeth Khadusi sold and transferred Enterprises these Limited on properties to 9th 2007; October Omkareshavar and that Omkareshavar Enterprises Limited amalgamated the two parcels of land and subdivided them into Title Nos. Kisumu Municipality/Block 6/603 to 618, which includes the suit properties. 8. The 2nd Petitioner further stated that the disputes regarding the legality of the titles that were held by Richard Shiraho and Elizabeth Khadusi, and later by the Petitioners, were all resolved by the courts in their favour; that the President had no power to allocate land to Kisumu Boys and Kisumu Girls through a directive; and that the suit properties, which had already been allocated and for which titles had been issued, could not be reallocated to these two schools. The 2 nd Petitioner also pointed out that the suit properties had no connection with Title No. Kisumu Municipality/Block 6/244, allegedly allocated to Kisumu Boys and Kisumu Girls, and ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 7

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furthermore, while the Respondents claimed that the suit properties belonged to the two schools, they had permitted private individuals to establish shops and car washing sheds on the premises, contrary to the terms under which the land was purportedly allocated to the schools. 9. The 2nd Petitioner further stated that although the suit properties were said to have been allocated to Kisumu Boys and Kisumu Girls, the Respondents had not indicated whether they had also obtained permission from Kisumu Girls to use the suit properties; and that the issue of the legality of the titles held by the Petitioners had been settled by the courts and could not be reopened for determination. 10. The petition was heard through oral evidence. The 2 nd Petitioner testified on his own behalf and on behalf of the 1 st Petitioner. In his testimony, he reiterated the contents of his affidavit and the further affidavit filed in support of the petition, which he adopted as part of his evidence in chief. He produced the documents annexed to the said affidavits as the Petitioners’ exhibits 1(a) to (f), 2(a), (b) and (c), 3(a) to (d), 4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 8

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11. The Respondents called one witness, Michael Abala Wanga, who, in his testimony, adopted his affidavit in reply to the petition as his evidence in chief. He produced the documents annexed to the said affidavit as Respondents’ exhibits 1, 2, 3, 4 and 5, and the bundle of documents filed on 22nd July 2024 as Respondents’ exhibit 6. 12. After the close of evidence, the court directed the parties to make written closing submissions. The Petitioners filed submissions dated 27th August 2025, while the Respondents did not file submissions. The Petitioners gave a summary of the parties’ respective cases as outlined in the pleadings, and the evidence presented in court and framed the following issues for determination, namely: (a) Whether the Petitioners are the owners of the suit properties; (b) Whether the Respondents invaded the suit properties as alleged by the Petitioners; (c) Whether the Respondents violated the Petitioners’ constitutional rights and the law on evictions; and (d) Whether the Petitioners are entitled to the orders sought in the petition. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 9

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13. On the first issue, which concerns the ownership of the suit properties, the Petitioners submitted that they produced at the trial certificates of title for the suit properties in their names, which are prima facie evidence that they are the absolute and indefeasible owners of the properties. The Petitioners relied on section 26 of the Land Registration Act 2012, in submitted support that of the this submission. Respondents’ The contention Petitioners that the Petitioners acquired the suit properties unprocedurally, illegally and fraudulently was not proved to the required standard. The Petitioners relied on Kinyanjui Kamau v. George Kamau [2015]eKLR and Vijay Morjaria v. Nansingh Madhusingh Darbar & another [2000]eKLR in support of their submissions on the issue. 14. The Petitioners submitted that no evidence was placed before the court to support the Respondents' contention that the suit properties were owned by the defunct Municipal Council of Kisumu and were allocated to Kisumu Boys and Kisumu Girls through a Presidential Directive. The Petitioners submitted that, despite having no duty to prove that they acquired the suit ELC PETITION NO. 10 OF 2021 properties JUDGEMENT lawfully, they presented Page 10

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extensive evidence to the court of how they acquired the suit properties from the previous owners. 15. The Petitioners submitted that the Respondents were well aware that the suit properties were different from the land parcel, Title No. Kisumu Municipality/Block 6/244, which was allegedly allocated to Kisumu Boys and Kisumu Girls. The Petitioners submitted that if indeed the suit properties were the same as Title No. Kisumu Municipality/Block 6/244, which was allocated to the two schools, the Respondents could not have approved the Petitioners' application to amalgamate and subdivide the same, as well as the plans for the development thereof. The Petitioners submitted that even if the court found that the Petitioners did not acquire the suit properties lawfully, such a finding would not justify the Respondents' invasion of the properties and demolition of the structures thereon. 16. On the second issue, the Petitioners submitted that parties are bound by their pleadings. The Petitioners submitted that the Respondents admitted, in paragraph 15 of their affidavit in reply to the petition, that they demolished the buildings on the suit properties. The Petitioners submitted that, in ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 11

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addition to the admission in the replying affidavit, the Respondents made a further admission in a press release produced in evidence by the Petitioners as exhibit 6. The Petitioners submitted that the Respondents could not be allowed to depart from their pleadings by claiming that someone else was involved in demolishing the Petitioners’ structures on the suit properties. 17. On the third issue, the Petitioners submitted that the Respondents ignored their titles to the suit properties, forcibly entered the suit properties, demolished their structures thereon and evicted them without a court order. The Petitioners submitted that the Respondents violated their rights under sections 24, 25, and 26 of the Land Registration Act, as well as sections 27 and 28 of the Registered Land Act, Chapter 300 of the Laws of Kenya (repealed). The Petitioners further submitted that the Respondents did not afford them a hearing or furnish them with the reasons for their actions in violation of their rights under Articles 1, 2, 3, 10(2), 20(1), 20(2), 40, and 47 of the Constitution of Kenya, which enjoins everyone to respect the rule of law and the right to property. The Petitioners ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 12

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submitted that even if the suit properties were public land, the Respondents had to evict them in accordance with the law on evictions. The Petitioners submitted that the Respondents’ actions amounted to trespass on the suit properties. 18. The Petitioners submitted that it was as a result of the Respondents’ illegal actions and omissions that the third parties took possession of the suit properties. The Petitioners submitted that the Respondents should be held responsible for the third parties’ occupation of the suit properties and should be compelled to restore possession of the suit properties to the Petitioners. 19. On damages sought against the Respondents, the Petitioners submitted that Article 23(3) of the Constitution expressly confers a power upon the court to award damages for a violation of a constitutional right; and that the quantum of such damages depends on the facts and circumstances of each case. The Petitioners submitted that it was not disputed that they had commenced construction on the suit properties and that, up to the stage they had reached, they had incurred a cost of Kshs. 25,437,140/-. The Petitioners prayed ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 13

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for judgment in the sum of Kshs. 25,437,140/- against the Respondents jointly and severally. 20. The Petitioners submitted that, in addition to the special damages of Kshs. 25,437,140/-, they were also entitled to general damages for trespass and violation of constitutional rights. In support of this submission, the Petitioners relied on the High Court case of MWK & another v. Attorney General & 3 others [2017]eKLR. The Petitioners submitted that, having regard to the conduct of the Respondents and all the circumstances of the case, Kshs. 80,000,000/- would be a fair and reasonable award to the Petitioners for the Respondents' trespass on the suit properties. In support of the award, the Petitioners relied on Halsbury’s Laws of England, 4 th Edition Volume 45 page 1503 paragraph 26, Park Towers Limited v. John Mithamo Njika & 7 others [2014]eKLR, and Aster Holdings Limited v. City Council of Nairobi & 4 others [2017]eKLR. 21. Regarding damages for violation of constitutional rights, the Petitioners submitted that, taking into account the previous awards and the circumstances of this case, an award of general damages in the sum of Kshs. 10,000,000/- ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 14

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for violation of the Petitioners’ constitutional rights would be fair and reasonable to vindicate those rights. In support of the proposed award, the Petitioners relied on MWK & another v. Attorney General & 3 others (supra). 22. I have considered the petition, the affidavit and further affidavit filed in support thereof, the answer to the petition, the evidence tendered by the parties, and the submissions by the Petitioners. The petition before the court is brought under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. Article 22(1) of the Constitution provides as follows: “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.” 23. In Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, the court stated as follows: “We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 15

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conterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point...Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other party. The Principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.” 24. Upon analysis of the Petitioners' petition and the reliefs sought, I am of the opinion that this is a case of trespass to land, which should have been brought as a normal civil suit, rather than as a constitutional violation claim. Although the Petitioners have cited several articles of the Constitution said to have been violated, at the core of their claim is a dispute over the ownership of land, and the dispute has been raging since 2004; and I would not hesitate to state that the dispute ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 16

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has never been resolved because, the Petitioners’ predecessors in title have been approaching the court over the years through judicial review a process through which courts cannot determine disputed land claims. Whether the Petitioners have chosen the same path, for tactical reasons or otherwise, is difficult to guess. 25. The Petitioners' case is that they are the registered owners of the suit properties, on which they began developing residential apartments. They have claimed that the Respondents unlawfully entered the properties and demolished the structures they had erected; as a result, they suffered a loss. The Petitioners have claimed in special damages, along with 24,918,965/- Kshs. general damages for trespass and breaches of their constitutional rights. The Respondent’s response is that the Petitioners acquired the suit properties unlawfully, illegally, and fraudulently, rendering their titles null and void. In my view, these issues can be easily resolved through a civil suit. I see no reason why a constitutional court should be called upon to settle a land ownership dispute or to assess damages from acts of trespass. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 17

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26. In Uhuru Muigai Kenyatta v. Nairobi Star Publications Ltd. [2013] e KLR the court stated as follows: “…I need say no more. Where there is a remedy in Civil Law, a party should pursue that remedy…My mind is clear however that not every ill in society should attract a constitutional sanction and as stated in AG vs S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions.” 27. In Leonida Aloo Odhiambo v. Attorney General & another [2020] eKLR the court stated as follows: “Further, it is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The constitutionality court of an will pronounce action only on when the it is necessary for the decision of the case to do so and that if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.” ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 18

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28. In Communications Commission of Kenya & 5 others v. Royal Media Services Limited & 5 others [2014] eKLR the Supreme Court stated that: “[256] The appellants in this case are seeking to invoke the “principle of avoidance” also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: “I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” [257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)). [258] From the foundation of principle well developed in the comparative practice, we hold that the 1 st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 19

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was a plain copyright infringement claim and it was not properly laid before that court as a constitutional issue.” 29. The common feature in the cited cases is that a court will not decide a dispute brought as a constitutional issue if it can be resolved through other legal channels. From the materials before me, I see only a land dispute, which does not raise strictly constitutional questions. I do not believe that trespass to land and the demolition of a building on the land should be transformed from what they are, a land ownership dispute and a tort, into a constitutional issue for resolution by a constitutional court under Article 22(1) of the Constitution. If that were the case, then all civil disputes in our courts would be brought as constitutional petitions. I believe that a line must be drawn, however thin, between constitutional claims that raise constitutional questions and regular civil claims arising from civil wrongs that may also infringe the Constitution. I am of the view that claims of a general civil nature, brought to redress civil wrongs, although they may contain allegations of constitutional violations, need not be brought as constitutional petitions if ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 20

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they do not raise constitutional questions that require determination. 30. In C N M v W M G [2018] eKLR, the court stated as follows on what constitutes a constitutional issue: “21. The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81(CC) in which Justice O’Regan recalling the Constitutional Court’s observations in S vs. Boesak (2001)(1)SA 912(CC) notes that:“The Constitution “constitutional provides matter.” What no is definition a of constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of ........the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State...................., the interpretation, application and upholding of the Constitution are also constitutional matters. So too,.............., is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 21

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detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with constitutional matters is clearly decisions on an extensive jurisdiction.” 31. The issues framed by the Petitioners for determination by this court in their submissions clearly show that the petition does not raise any constitutional issues that cannot be resolved in a normal civil suit. The issues identified by the Petitioners include whether they are the owners of the suit properties, whether the Respondents trespassed on these properties, whether such trespass violated the Petitioners’ constitutional rights and the law on eviction, and whether the Petitioners are entitled to damages. The sole constitutional issue raised in the petition concerns whether, in trespassing on parcels of land held by the Petitioners, the Respondents infringed their constitutional rights to property and due process. As noted earlier, this issue could be addressed within a civil suit. 32. I am not aware of any legal impediment to a court hearing a civil case from determining constitutional issues arising ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 22

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therein. If the Respondents had contested the petition on the basis that it did not raise constitutional questions, that objection alone could have sufficed in my view to dispose of the petition. I wish not to say more at this stage. I trust I have made my position on the issue clear. I will now proceed to consider the petition on its merits to avoid the risk of being accused of determining the petition on issues not raised by the parties in their pleadings. That said, I will not hesitate to revisit these issues later in the judgment should it become necessary. 33. I will summarise the issues arising for determination in the petition as follows: (a) Whether the Petitioners’ constitutional rights were violated by the Respondents; (b) Whether the Petitioners are entitled to the orders sought in the petition. (c) Who should pay the costs of the petition? 34. It is not disputed that the Petitioners are registered as the leasehold proprietors of the suit properties. The Petitioners acquired the suit properties through purchase from Riya Developments Limited, ELC PETITION NO. 10 OF 2021 Cornelius JUDGEMENT Ogema, Dipakkumar Page 23

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Upadhyay, Hiram Pandya, and Omkareshavar Enterprises Limited. The Petitioners produced evidence at the trial in proof of the purchases and the titles they hold in respect of the suit properties. The Petitioners also provided the history, albeit incomplete, of the suit properties prior to their acquisition. It is also not in dispute that the Petitioners had commenced development properties, and that of before apartments the on the suit completion of the construction works, the structures which had been erected on the suit properties were demolished, which demolition the Petitioners attribute to the Respondents. 35. The suit properties were registered under the Registered Land Act, Chapter 300 of the Laws of Kenya (repealed). Sections 27 and 28 of the Registered Land Act provide as follows: “27. 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; b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 24

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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. 28. The rights of a proprietor, whether acquired on first 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 affect 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. 36. Sections 24, 25 and 26 of the Land Registration Act 2012, which repealed the Registered Land Act, provide as follows: ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 25

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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. 25. (1) The rights of a proprietor, whether acquired on first 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 affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 26

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(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.” 26. (1) The certificate 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 certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original. 37. As stated earlier in the judgment, the Respondents contended that the suit properties were initially owned by the defunct Municipal Council of Kisumu (Council) and were subsequently allocated to Kisumu Girls High School and Kisumu Boys High School (schools) on 30 th January 2002 and ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 27

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20th March 2003, as Title No. Kisumu Municipality/Block 6/244 (Plot No. 244). The Respondents contended that the schools were issued with a lease and certificate of lease for Plot No. 244 on 3rd July 2003 and 8th October 2009, respectively. The Respondents contended that the Petitioners purported to acquire and subdivide Plot No. 244, owned by the schools. 38. The Respondents contended that the suit properties were, in fact, Plot No. 244 owned by the schools, and that they had express permission from the schools to take possession and occupy the same temporarily. For the foregoing reasons, the Respondents denied violating the Petitioners' rights. The Respondents admitted in their affidavit in reply to the petition that they were involved in the demolition of the structures on the suit properties, but justified the same, claiming that they carried out the demolition “in the interest of the public” with the permission of the owners of Plot No. 244 on which the construction was being undertaken. The Respondents produced in evidence at the trial a letter dated 14th January 2021 on the letterhead of Kisumu Boys High School, signed by the Chief Principal of Kisumu Boys High ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 28

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School and the Chief Principal of Kisumu Girls High School, addressed to the Acting City Manager, Kisumu City, granting the County Government of Kisumu permission to occupy Plot No. 244 temporarily. It is this letter which is said to have granted the Respondents permission to enter and occupy the suit properties, which the Respondents consider to be part of Plot No. 244. 39. It is not in dispute that Plot No. 244 is registered in the name of the schools as the leasehold proprietors thereof, and that the schools have a lease and a certificate of lease in respect thereof. Prior to the allocation of Plot No. 244 to the schools, the same was owned by the Government of Kenya. 40. I am unable to determine with finality whether the suit properties are part of Plot No. 244 for several reasons. Plot No. 244 is registered in the name of the schools which are not parties to this suit. The court cannot determine the schools’ rights to the suit properties without having given them an opportunity to be heard. From the material on record, the schools had complained since 2003 about what they considered encroachment by Richard Shirao/Solongo Village Polytechnic on Plot No. 244, which the Government ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 29

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had allocated to them, despite the fact that his allocation had been cancelled. I have seen on record correspondence on the issue addressed to the Provincial Commissioner, Nyanza; Richard Shirao; Shajan and Company; the Commission of Inquiry into Illegal/Irregular allocation of public land; the Ethics and Anti-Corruption Commission; the Ministry of Lands; Solongo Village Polytechnic; and the National Land Commission. The correspondence leaves no doubt that the schools have, over the years, even before the Petitioners acquired the suit properties, maintained that the suit properties were created illegally from Plot No. 244, which the Government had allocated to them. Regretfully, the schools have never had an appropriate forum to vindicate their grievances. 41. It is not disputed that the suit properties originated from Title Nos. Kisumu Municipality/Block 6/548 and 549, which were initially owned by Richard Shiraho and Elizabeth Khadusi. The two properties amalgamated and subdivided, were subsequently giving rise to the suit properties, among others, which were sold to those from whom the Petitioners purchased them. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 30

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42. The dispute between the schools and the present and previous owners of the suit properties over the legality of the titles for the suit properties has not been determined. Contrary to the Petitioners’ contention, the issue was not determined in the judicial review applications filed by Richard Shiraho and Elizabeth Khadusi in 2004 in the High Court, and by the Petitioners herein in 2017 in the Environment and Land Court. As I have stated, this petition cannot determine the issue. It must wait for another forum. 43. The Petitioners have, however, placed before the court prima facie evidence showing that they are the registered owners of the suit properties. The Respondents have not demonstrated that they have any or better title to the suit properties than the Petitioners. They claim to derive their interest in the suit properties from the schools that are not parties to the petition and have not established their claims in this court or in any other forum. It is therefore my finding that, as between the Petitioners and the Respondents, the Petitioners are the lawful owners of the suit properties. 44. The petition herein was brought following the demolition of the apartments which were being erected by the ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 31

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Petitioners on the suit properties. I agree with the Petitioners that the Respondents admitted in their affidavit in reply to the petition that they demolished the said apartments under construction. That position finds support in the Respondents’ press statement (P.EXH.6) that was issued on 28 th January 2021, just 5 days after the demolition incident, in which they stated that, “We have repossessed a public land around Kibuye Estate which will be an alternative market space for those traders around Garissa Lodge, Apindi Street, and Gor Mahia road as we begin series of demolition within and around the city next month. This will be the NEW GARISSA LODGE MARKET.” It is therefore my finding that the Petitioner’s apartments under construction on the suit properties were demolished by the Respondents. 45. It is not disputed that the Petitioners were not given notice or a hearing before the structures they had erected on the suit properties were brought down by the Respondents. The Respondents were not acting on any court order or any lawful instructions. The Respondents have justified their actions by claiming that the lawful owners of the suit ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 32

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properties authorised them to carry out the demolition and occupy the land, and that the demolition was in the public interest, since the Petitioners were grabbers of public land. 46. As I have found above, the Petitioners are the registered owners of the suit properties. The schools have claimed an interest in the suit properties, which is yet to be established. In the letter dated 14th January 2021 relied on by the Respondents, the schools granted them permission to take possession and temporarily occupy Plot No. 244. The said letter makes no reference to the suit properties and contains no instructions or authority to carry out any demolitions. 47. Article 40 of the Constitution provides as follows: “40. Protection of right to property (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— (a) of any description; and (b) in any part of Kenya. (2) Parliament shall not enact a law that permits the State or any person— ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 33

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(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4). (3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation— (a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that— (i) requires prompt payment in full, of just compensation to the person; and (ii) allows any person who has an interest in, or right over, that property a right of access to a court of law. (4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land. (5) The State shall support, promote and protect the intellectual property rights of the people of Kenya. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 34

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(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” 48. As the registered owners of the suit properties, the Petitioners were protected against arbitrary deprivation of the properties. The Respondents' declaration of the Petitioners as grabbers of public land reserved for public institutions and the arbitrary entry and demolition of the apartments which were under construction on the suit properties was a violation of the Petitioners’ constitutional right to property. 49. I hasten to add that it was not for the Respondents to determine the legality of the Petitioners’ titles to the suit properties. In Evelyn College of Design Ltd v. Director of Children’s Department & another [2013] eKLR, the court stated as follows: “I would once again emphasise that a finding of “unlawful acquisition” referred to in Article 40(6) of the Constitution must be through a legally established process and not by forceful occupation of property by State institutions or by preventing a person from enjoying the incidences of ownership of the property. Thus, it was held in the case of Adan Abdirahani ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 35

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Hassan and 2 Others v The Registrar of Titles and Others Nairobi Petition No. 7 of 2012 [2013]eKLR that,“ Even if the Respondents held the view that the Petitioners had no right to own the suit property because the property was reserved for a public purpose, which view they were entitled to hold being the custodians of public land, the Petitioners had legitimate expectation in the proprietorship of the property and they should have been accorded a hearing before any administrative action could be taken in respect of the suit property.” In view of what I have stated, it is clear that even where property is said to be illegally acquired; it cannot be dispossessed without due process. Such dispossession cannot be effected by preventing the petitioner from enjoying the incidents of ownership of the land. Since the issue in this case concerns due process, I have exercised circumspection in commenting on the veracity or otherwise of the claims of illegal acquisition because, the State has the right to assert this position in the proper forum.” 50. It is my finding that the Respondents violated the Petitioners’ constitutional right to property. In proceedings brought under Article 22 of the Constitution to enforce the Bill of Rights, Article 23(3) gives the court power to grant appropriate relief. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 36

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51. It provides as follows: (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including–– (a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review. 52. The Petitioners have sought several orders, which I have enumerated at the beginning of the judgment. The first order sought is a declaration that the Respondents' actions complained of were illegal and in contravention of the Petitioners' constitutional rights and freedoms, and, as such, null and void. I have found that the Respondents acted illegally and violated the Petitioners’ constitutional rights. The Petitioners are therefore entitled to the declaration sought. ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 37

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53. The second order sought by the Petitioners is a declaration that the 2nd Respondent has contravened Chapter 6 of the Constitution of Kenya as read with the Leadership and Integrity Act No. 19 of 2012 and the Public Officer Ethics Act No. 4 of 2003. The 2nd Respondent is “CITY MANAGER, KISUMU CITY”. This is an office against which a finding of contravention of Chapter 6 of the Constitution, the Leadership and Integrity Act No. 19 of 2012 and the Public Officer Ethics Act No. 4 of 2003, cannot be made. Such findings can only be made against individuals. The Petitioners should have sued the holder of that office at the particular time in his personal name. The orders sought cannot attach to an office. They can attach only to a particular public officer. The order is therefore not for granting. 54. The next order sought by the Petitioners is a permanent injunction restraining the Respondents from interfering with the Petitioners’ use and possession of the suit properties and more particularly from settling or otherwise putting in possession of the suit property any third parties. As the registered owners of the suit properties, the Petitioners are ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 38

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entitled to quiet and peaceful possession and enjoyment thereof. Save for any lawful cause, the Respondents have no right to interfere with the Petitioners' use and enjoyment of the suit properties. A case has therefore been made for the injunction sought. 55. The next order sought is a mandatory injunction compelling the Respondents to vacate the suit properties forthwith and put the Petitioners in possession thereof. On 17th May 2021, the court issued an order restraining the Respondents from trespassing upon, or interfering with the Petitioners’ use and possession of the suit properties. The court confirmed the orders on 23rd September 2021. When the Petitioners were granted the conservatory orders on 17 th May 2021, the suit properties were vacant. The Petitioners claimed that after the said conservatory orders, the Respondents settled strangers on the suit properties, who were paying rent to shadowy cartels operating within the 1 st Respondent. On 13th April 2022, the Petitioners filed an application by way of Notice of Motion dated 12 th April 2022, seeking an order that the City Manager, Kisumu City, Michael Abala Wanga or anyone holding that office was in contempt ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 39

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of court and should be arrested and sentenced to serve a prison term as may be determined by the court for being in contempt of the orders made on 17 th May 2021 and confirmed on 23rd September 2021. The Petitioners accused the City Manager, Kisumu City, of settling strangers on the suit property in breach of the said court orders. 56. The Respondents opposed the contempt of court application through a replying affidavit sworn by Michael Abala Wanga on 13th May 2022 in which he denied that the Respondents had disobeyed the court orders made on 17 th May 2021 and confirmed on 23rd September 2021. He denied that the Respondents had settled traders on the suit property. He stated that if traders were occupying the suit property, the Respondents had not put them in possession and they were not paying any rent to the Respondents. In a ruling delivered on 5th August 2022, the Court dismissed the contempt application. The Court found no proof that the traders occupying the suit property were granted possession by the Respondents. 57. At the hearing of the petition, the Respondents maintained that they had not settled traders on the suit properties. DW1 ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 40

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stated that a third party whose particulars were well known to the Petitioners settled the traders on the properties. Pressed by the court to name the third party, DW1 gave his name as Mr. Opondo. Like my brother, who heard the contempt of court application, I find no evidence linking the Respondents to the traders occupying the suit property. The Respondents are therefore not in occupation of the suit properties and cannot be ordered by the court to vacate the same and hand over possession to the Petitioners. 58. The Petitioners have also claimed special damages in the sum of Kshs. 25,437,140/-. This claim was pleaded and particularised in paragraph 46 of the petition. I find no basis for the claim for Kshs. 98,000/- paid for the change of use, as the demolition did not affect the change of use of the suit properties. As for the payment for the preparation of Architectural and Structural Designs, no evidence of payment for the claimed amount of Kshs. 180,000/- has been provided. I find the claim for Kshs. 240,715/- for plan approval fees proved. For the claim of Kshs. 24,918,965/- for the actual cost of the development demolished by the Respondents, I ELC PETITION NO. 10 OF 2021 have noted that JUDGEMENT the sum of Kshs. Page 41

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24,918,965/- was just the invoiced work. The actual payment made by the Petitioners was Kshs. 23,981,525/-. This is what the Petitioners are entitled to. 59. The Petitioners have also claimed general damages for trespass. I am of the view that this claim is in the province of a civil claim. In constitutional petitions, the court should award only compensation for any loss incurred and damages for violations of rights. The Respondents violated the Petitioners' constitutional rights to property by trespassing on and demolishing their structures. I am of the view that this single act of trespass cannot attract two heads of damages for trespass and for violation of constitutional rights to property. I will therefore not make any award for trespass, as I believe this would amount to duplicating awards in the circumstances. 60. The last order sought is general damages for violation of fundamental rights and freedoms. I have held that the Respondents violated the Petitioners' constitutional rights. The Petitioners have prayed for an award of Kshs. 10,000,000/- under this head. As mentioned earlier, the Respondents did not file submissions. They therefore made ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 42

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no submission on the Petitioners' proposed award. Since I have declined to grant damages for trespass, I find the proposed award of Kshs. 10,000,000/- as reasonable, taking into account the conduct of the Respondents and the loss they have caused to the Petitioners, much of which is difficult to quantify. 61. In conclusion, I hereby enter judgment for the Petitioners against the Respondents for: (a) A declaration Respondents that the complained of actions were of the illegal, unconstitutional, null and void; (b) A permanent injunction restraining the Respondents from interfering with the Petitioners’ use and possession of all those parcels of land known as Title Nos. Kisumu Municipality/Block 6/608, Kisumu Municipality/Block 6/609, Kisumu Municipality/Block 6/610, Kisumu Municipality/Block 6/611, Kisumu Municipality/Block 6/612, and Kisumu Municipality/Block 6/613, located within Kisumu County (suit properties) and more specifically from ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 43

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settling or otherwise putting third parties in possession of the properties; (c) Special damages of Kshs. 24,222,240/-, together with interest at court rates from the date hereof until payment in full; (d) General damages of Kshs. 10,000,000/- for the contravention and breach of the Petitioner’s fundamental rights and freedoms, together with interest at court rates from the date hereof until payment in full; (e) The costs of the petition. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of; Mr.Otieno David for the Petitioners N/A for the Respondents Joanne Omondi; Court Assistant ELC PETITION NO. 10 OF 2021 JUDGEMENT Page 44

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