1.By a Plaint dated May 21, 2019 the plaintiff herein sued the defendants seeking the following orders; -
2.The 1st and 2nd defendant filed a joint defence and counter claim denying the plaintiff’s claim as the registered owner of the suit property. The defendants sought the following prayers in the counterclaim: -
3.PW1 Omar Twalib Mzee adopted his Witness Statement and produced as exhibit 1 -3 as per the list of documents dated 21st May 2019 and PEX 4-13 as per the supplementary list of documents dated 23rd October 2020.
4.PW1 stated that vide a Letter of Allotment dated May 5, 1998the Commissioner of Lands (now the Chief Land Registrar) allotted him the property known as Plot No. 27270 Mpeketoni Lamu CR. No. 42662 of which PW1 complied with the conditions set out in the allotment letter and was therefore issued with a Certificate of Lease for a term of 99 years from May 1, 1998.
5.It was PW1’s testimony that in 2016, without his knowledge, the 1st defendant commenced the process of planning, surveying and settlement of squatters as per approved Part Development Plan No. 01 Ref No. LMU/1281/01/16.
6.PW1 stated that he is the registered owner of the suit property and that the actions by the Defendants’ amount to trespass.
7.On cross examination PW1 stated that he made an application for allocation of land from the government and was given an allotment letter dated May 5, 1998. PW1 further stated that he paid the premiums and has been paying land rates to the county.
8.On further cross examination, PW1 stated that there was cancellation and rectification whereby he surrendered the deed plan and the title to the Director of Surveys. He also stated that he has a ground report by the Surveyor and nobody is on the suit land.
9.DW1 Paul Muyendo the County Physical Planning Assistant adopted his Witness Statement dated July 19, 2021as his evidence and produced DEX 1-3 as per the list of documents dated July 15, 2021.
10.DW1 told the court that the suit land is located in Kiongwe which is 8 Kilometers from Mpeketoni away from Lake Kenyatta Settlement Scheme. He added that the Certificate of lease by the Plaintiff shows that it is located on Lamu Island while Kiongwe is on Lamu mainland.
11.It was DW1’s further evidence that the upon due diligence he ascertained that they do not have the PDP in their records in Lamu office and at the National office.
12.On cross-examination DW1 admitted that he had not brought any correspondence that the PDP does not exist in the national office. He also stated that he did not raise the issue of where the land is situated either in the statement and the counterclaim.
13.It was DW1’s testimony that the property is registered in the Plaintiff’s name and that the PDPs were done and approved in 2016 and that DW1 also confirmed that he had not produced a parcel file in respect of the suit property. He stated that he was just defending the Physical Planning Office
14.Counsel identified the following issues for determination: -
15.On the first issue whether the Plaintiff is the owner of the suit land, counsel submitted that it is not in dispute that the Plaintiff is the registered owner of the suit property as he produced a letter of allotment, receipts, Certificate of lease, copy official search and receipt to confirm ownership of Plot No. 27270 Mpeketoni Lamu CR. No 42662.
16.Counsel relied on the provisions of sections 24, 25 and 26 of the Land Registration Act which provides for indefeasibility of title unless it is challenged on grounds of fraud, misrepresentation, certificate of title acquired illegally, unprocedurally or through a corrupt scheme.
17.It was counsel’s submission that the law presumes that all the acts done by the Land Registrar in effecting the transfers was regular unless otherwise proved and that the burden is upon the defendants to bring evidence to rebut the said presumption and relied on the case of Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others  eKLR.
19.Mr. Mwanzia submitted that during the hearing, the 1st defendant diverted its case from what is pleaded and the evidence it supplied in support of the said pleadings and alleged that the suit property is situated in Lamu Town as opposed to Mpeketoni which issue does not flow from the pleadings filed by the defendants.
21.On the issue whether thedefendants have proved fraud, counsel submitted that for the court to properly find any fault in the registration of the certificate of title issued to the plaintiff, it was incumbent upon the defendants to enjoin the Land Registrar and the National Land Commission which would be tantamount to condemning the parties unheard contrary toarticle 47 of the Constitution of Kenya, 2010.
23.Counsel further submitted that the plaintiff has proved he is the absolute, rightful and indefeasible owner of the suit property herein and the defendants’ actions constitute trespass that infringes on the use and all incidental rights of the plaintiff and cited the case of Keiyian Group Ranch v Samwel Oruta & 9 others  eKLR and urged the court to grant the orders sought in the plaint as prayed.
24.The defendants did not file any submissions as was ordered.
Analysis and Determination
25.The issues for determination are whether the plaintiff is the registered and the indefeasible owner of the suit land, whether the defendant has proved any fraud against the plaintiff as per the counterclaim, who between the plaintiff and the defendants are entitled to the orders sought.
26.From the evidence on record the plaintiff gave a chronology of how he applied for allocation of the suit land, the processes that he went through from application, allotment letter from the Commissioner of Lands, paid the premium, land rates, clearance certificate and was issued with a Certificate of lease which he produced as evidence before the court.
27.These documents have not been challenged by the defendant who alleged fraud but did not adduce any evidence to support such allegation. DW1, the only witness who was an Assistant Physical Planning Officer just gave oral evidence without documentary proof that the PDP in respect of the suit land does not exist. The witness neither produced any correspondence in respect of the suit land nor the parcel file to assist the court determine whether what he was saying was factual or just mere allegations.
28.The witness also confirmed that the suit land is registered in the plaintiff’s name and that the issues raised on location of the land were neither stated in the statement nor in the counterclaim. Parties are bound by their pleadings and issues arise from the pleadings.
30.The defendant departed from the pleadings and brought in extraneous matters which were not part of the issues to be dealt with. In an adversarial system there is no trial by ambush, parties must know what issues to reply to in advance hence the pretrial procedure before the suit is set down for hearing.
32.The upshot is that the Defendant could not be allowed to travel outside the pleadings which he had an opportunity to amend to include all the issues that he wanted to rely on including joining parties who the orders sought in the counterclaim were directed to.
33.The Defendant was under a duty to prove the allegation of fraud against the Plaintiff as pleaded in the counter claim. Section 26(1) of the Land Registration Act, which provides that:
35.The evidence on record as stated by the Plaintiff, revealed that there was no occupation of the suit land hence there would be no need to issue orders of eviction in vain.
36.I have considered the pleadings, the evidence on record together with the submissions by counsel and find that the Plaintiff has proved his case on a balance of probability. The court therefore grants orders as per the plaint but declines to issue an order of eviction since it will be superfluous.