Kiribot v Toroitich (Environment and Land Case Civil Suit 84 of 2017) [2022] KEELC 2469 (KLR)

The County Surveyor, who testified as PW2 following a consent recorded on January 29, 2018, found that the measurements in the Registry Index Map tallied with the ground measurements and that the Defendant's homestead lay within the suit property. The Defendant's contrary boundary, marked by a heap of stones and endorsed by elders' minutes, carried no legal weight against a legally surveyed parcel held by the Lands Office and Survey of Kenya. The court therefore found encroachment proved.

The judgment notes there was no evidence adduced to show the Defendant owned LR No. Elgeyo/Marakwet/2645, nor that the Plaintiff encroached on it. Even the elders' sketch plan produced by the Defendant did not depict that parcel, showing only Elgeyo/Marakwet/2428. The court treated the reference as possibly a typing error but found in any event no evidence of encroachment.

The judgment observes that no particulars of fraud were stated in the counter-claim. The suit property was registered in the name of the Plaintiff's deceased father on September 1, 1993, with the title processed later. Applying the evidential burden under sections 107-109 of the Evidence Act and the authorities cited, the court held the fraud allegations to be mere allegations unsupported by evidence, and declined to cancel the title.

Having proved trespass occurring between September 2016 and February 2017, the Plaintiff was entitled to a permanent injunction protecting his quiet possession. Citing Park Towers Ltd and Duncan Nderitu Ndegwa, trespass being actionable per se, general damages were awarded without proof of specific loss, assessed at Kshs 50,000/= because the encroached portion was small, with interest at court rates from the date of judgment.