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ELCAllowedELC Cause No. 40 of 2017 (formerly Nakuru HCC No. 8 of 2009)· [2018] KEELC 1 (KLR)

Kililwa Ole Nkuruna v Parsaloi Ole Nkuruna [2018] KEELC 1 (KLR)

Environment and Land Court at Narok
17 October 2018
MKMohamed Kullow
1,112 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Narok court confirmed that survey evidence of a river boundary wins land disputes between family members, and ordered 78 acres transferred back.

What this practically means

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Executive summary

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The Plaintiff, Kililwa Ole Nkuruna, sued the Defendant, his brother Parsaloi Ole Nkuruna, seeking a declaration that he owns and is entitled to 78 acres to be excised from the Defendant's land parcel CIS MARA/NAIBOR AJIKJIK/175, an order compelling its transfer, and costs. The Plaintiff's case was that both parties were members of Naibor Ajikjik Group Ranch, dissolved in 1984 upon sub-division into individual parcels; he was allocated parcel 173 and the Defendant parcel 175, with a river as the boundary, but that the Defendant fraudulently and illegally encroached on about 75 acres of his land during the survey and registration process. The Defendant denied the fraud, asserting his land was allocated to him by the group ranch officials and that he never crossed the river boundary. The Plaintiff testified and called his brother, a former chairman of the group ranch, a family member who produced minutes of a family meeting finding the Defendant had trespassed, and the Narok District Surveyor, who confirmed that the boundary between the two parcels on the map is a river. The Defendant testified and called the current committee chairman. The court framed a single issue: whether the Defendant encroached on the Plaintiff's land and obtained the 75 acres complained of. Finding the Plaintiff's case proved on a balance of probability, the court entered judgment for the Plaintiff: a declaration that he is entitled to 78 acres of the Defendant's parcel; an order that the Defendant transfer those 78 acres within 45 days, failing which the Deputy Registrar is empowered to execute the transfer; an order directing the land registrar to formalize the transfer; and costs of the suit to the Plaintiff.

Key legal issues

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01

Whether the Defendant encroached on the Plaintiff's parcel CIS MARA/NAIBOR AJIKJIK/173

Holding

Yes - the court found the Plaintiff proved encroachment on a balance of probability and entered judgment for the Plaintiff, awarding 78 acres to be excised from the Defendant's parcel 175.

Reasoning

Both parties were members of Naibor Ajikjik Group Ranch, dissolved in 1984 upon sub-division into individual parcels. The Plaintiff was allocated parcel 173, the Defendant parcel 175, with the river as the boundary. Plaintiff's witnesses, including the former ranch chairman and the District Surveyor, confirmed the river boundary on the map, and a family meeting found the Defendant had trespassed. The Defendant denied crossing the river but offered no contradictory survey evidence. The court therefore accepted the Plaintiff's evidence and awarded the declaration and transfer orders sought.

p. 2

Legal principles established

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  • A plaintiff in a land dispute discharges the burden on a balance of probability, and where encroachment is proved the court may order excision and transfer of the encroached portion.

Court orders

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  1. 1.A declaration that the Plaintiff is entitled to 78 acres of the defendant's land being Cis Mara/Naibor Ajikjik/175
  2. 2.The Defendant to within 45 days of the judgment exercise and transfer 78 acres of land, and in default the Deputy Registrar of the court is empowered to exercise and transfer the said 78 acres to the plaintiff
  3. 3.An order directing the land registrar to formalize the said transfer
  4. 4.Costs of the suit to the Plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (no specific constitutional provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kililwa Ole Nkuruna v Parsaloi Ole Nkuruna [2018] KEELC 1 (KLR)", Case Analysis (2018). ELC Cause No. 40 of 2017 (formerly Nakuru HCC No. 8 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1/eng@2018-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.