Joseph (Represented by Sammy Kirui Cheptoo as next friend) v Kigen & 3 others (Environment and Land Case 89 of 2016) [2025] KEELC 8500 (KLR)
The bottom line
#A Kenyan landowner proved a neighbour's encroachment with survey reports, won eviction of everyone the neighbour sold land to, and got costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the court lacked jurisdiction under Section 18(2) of the Land Registration Act because the dispute concerned an unfixed boundary
The objection fails; the suit is about encroachment and trespass, not boundary determination, and jurisdiction was admitted in the defence.
The 1st defendant's defence dated 20/3/2023 admitted the court's jurisdiction at paragraph 9. The jurisdictional attack was raised for the first time in written submissions covering 95% of those submissions. Written submissions cannot replace pleadings or amount to evidence, and the plaintiff's case was never about determining or fixing a boundary but about encroachment and trespass, established by unchallenged survey reports, titles and green cards. The case law on Section 18 was distinguishable.
Whether the plaintiff proved encroachment by the 1st defendant
Yes. Unchallenged survey reports showed the 1st defendant's parcel on the ground (10.62 Ha) exceeded its registered acreage (8.36 Ha), while the plaintiff's parcel was less than its title, by about 4.9 acres.
The court-ordered survey reports dated 2/12/2020 and 3/8/2021, produced in compliance with the Evidence Act, established that ground measurements did not match the acreages on the titles and that beacons had been tampered with. The defendants did not produce a contradicting expert report or challenge the authenticity of the titles, green cards and reports. The 1st defendant never sought rectification of his title despite knowing of the discrepancy and did not counterclaim.
Whether the 2nd - 4th defendants were trespassers entitled to protection as innocent purchasers
No. The 1st defendant had no title to pass; nemo dat quod non habet applies and the sale agreements did not comply with Sections 3(3) of the Law of Contract Act and Section 38 of the Land Act.
The 2nd - 4th defendants admitted taking possession of portions sold by the 1st defendant, which the survey reports showed partly lay on the plaintiff's land. Under the doctrine of nemo dat quod non habet and the statutory formalities of the Law of Contract Act and Land Act, the 1st defendant had no good title to pass. Courts do not rewrite agreements and will not enforce an illegal contract. Their willingness to vacate if relocated was noted but confers no defence against the registered owner.
Whether the plaintiff was entitled to eviction and permanent injunction
Yes. The claim was proved on a balance of probabilities; a declaration of illegality, 90-day vacate order with supervening eviction, and permanent injunction issued.
Having found encroachment of 4.7175 acres and trespass by purchasers from the 1st defendant without justification, the court granted the reliefs sought in the amended plaint: a declaration that the encroachment is illegal, an order to vacate within 90 days failing which eviction with police and administrative assistance at the defendants' cost, a permanent injunction against trespass, and costs to the plaintiff.
Legal principles established
#- A suit framed as encroachment/trespass, not as fixing or determination of a boundary, is not barred by Section 18(2) of the Land Registration Act.
- Written submissions cannot replace pleadings or amount to evidence; a jurisdictional objection founded only on submissions is misguided.
- A party alleging error in acreage of a title must tender evidence or seek rectification under the Land Registration Act; mere assertion cannot defeat an unchallenged survey report.
- Where a vendor has no good title, no title can pass to purchasers; courts will not enforce illegal or non-compliant sale contracts.
Court orders
#- 1.A declaration that the encroachment by the defendants on 4.7175 acres part of the old Kitale Municipality Block 15/(Koitogos) 172 (old), now Kitale Municipality Block 15/(Koitogos) 3169 and 3688 (new), is illegal.
- 2.The defendants, their agents, servants, employees, or anyone claiming under them, to vacate the suit property within 90 days; in default, eviction to be effected in line with the law with the assistance of the OCS Naisambu Police Station and the Assistant County Commissioner Waitaluk Division, at their cost and expenses.
- 3.Permanent injunction restraining the defendants, their agents, servants, or employees, and any other claiming under them, from trespassing onto the suit property.
- 4.Costs to the plaintiff.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over title, encroachment and trespass to land (Articles 162(2)(b) and 165(2) constitutionally anchored; pleaded and defended on the merits before the ELC).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph (Represented by Sammy Kirui Cheptoo as next friend) v Kigen & 3 others (Environment and Land Case 89 of 2016) [2025] KEELC 8500 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8500/eng@2025-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.