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ELCPartially AllowedELC Case No. 46 of 2018· [2026] KEELC 3605 (KLR)

Kerich v Menjo & 6 others (Environment and Land Case 46 of 2018) [2026] KEELC 3605 (KLR)

Environment and Land Court
11 June 2026
LOL. A. Omollo
7,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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The court cancelled land titles obtained through fraudulent subdivision and awarded Kshs. 800,000 in trespass damages to the landowner's family.

What this practically means

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Executive summary

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The Plaintiff, son and administrator of the estate of Benjamin Kibiwot Chesulut (Deceased), sued seven defendants claiming that land parcel No. Kericho/Merigi/429, registered in his deceased father's name on 14th December 2006 following succession proceedings, was fraudulently and unprocedurally subdivided on 16th September 2015 into parcels 1254-1258, later 1417 and 1418, without the owner's consent or Land Control Board consent. He sought a declaration of ownership, cancellation of the resultant titles, permanent injunction, eviction, profits and general damages for trespass, and costs. The 1st Defendant did not enter appearance. The 2nd to 5th Defendants filed defences claiming purchase and long possession since 1969-1970 and pleaded limitation, but none of them tendered evidence at trial. The 6th and 7th Defendants (Land Registrar Bomet and Attorney General) denied liability, contending the process followed the law and that the Registrar acted without bad faith. At trial, the Land Registrar (DW1) himself confirmed that the land was partitioned though no tenancy in common existed with the registered owner, effectively conceding fraud. The Court framed four issues: whether the parcel was fraudulently subdivided, whether the Defendants trespassed, whether the prayers should be granted, and costs. Applying the requirement that fraud be specifically pleaded and distinctly proved, the Court found the Plaintiff had discharged the elevated burden and held the partition fraudulent. The Defendants' untested defences were dismissed as mere allegations, and trespass by the 1st to 5th Defendants was found established. Judgment was entered for the Plaintiff: a declaration of ownership, cancellation of the seven resultant titles, permanent injunction, vacatur within 90 days failing which eviction would issue, and Kshs. 800,000/= joint and several general damages for trespass, plus costs. The prayer for profits was declined as unintelligible.

Key legal issues

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01

Whether land parcel No. Kericho/Merigi/429 was fraudulently subdivided

Holding

Yes. The subdivision/partition of 16th September 2015 was fraudulent because the persons in whose favour the resultant titles were issued were not tenants in common with the registered owner, Benjamin Kibiwott Chesulut (Deceased).

Reasoning

The Land Registrar (DW1) explained that partitioning presupposes ownership in common, whereas subdivision is done by the registered owner. The green card showed the land registered solely in Benjamin Kibiwott Chesulut's name, so ownership in common did not arise. DW1 confirmed in cross-examination that the beneficiaries acquired titles fraudulently. The Plaintiff, bearing the burden of proving fraud to a standard higher than balance of probability, discharged it.

p. 43
02

Whether the Defendants trespassed onto the suit parcel

Holding

Yes. The 1st to 5th Defendants trespassed onto land parcel No. Kericho/Merigi/429; their untested defences were mere allegations.

Reasoning

None of the 1st to 5th Defendants tendered evidence despite filing statements of defence, so their assertions of purchase and long possession remained uncontroverted allegations. The Plaintiff's title (Exhibit P1), the green card and the earlier decree in Bomet SPM Case No. 19 of 2012 against the 2nd Defendant supported the claim of trespass from 2011 (2nd Defendant) and 2018 (others).

p. 49
03

Whether the prayers in the Amended Plaint should be granted

Holding

Granted except the prayer for profits; general damages for trespass assessed at Kshs. 800,000/= jointly and severally against the 1st to 5th Defendants.

Reasoning

Having found fraud and trespass, the Court found the declaratory, cancellation, injunction and eviction prayers merited. The prayer for profits was unintelligible and was not granted. Relying on the Fleetwood Enterprises authority that trespass is actionable per se, the Court assessed general damages at Kshs. 800,000/=, comparing an earlier award of Kshs. 500,000/= for two to three years' occupation.

p. 53

Legal principles established

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  • Fraud must be specifically pleaded with particulars and distinctly proved; it cannot be inferred from facts.
  • Where a defendant fails to adduce evidence, averments in the statement of defence remain mere allegations.
  • Trespass to land is actionable per se and proof of damage is not required; once trespass is proved the Court is bound to award damages.
  • Costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise.

Court orders

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  1. 1.A declaration that Benjamin Kibiwot Chesulut (Deceased) is the owner of land parcel No. Kericho/Merigi/429.
  2. 2.The Land Registrar Bomet directed to nullify and/or cancel the title deeds for land parcel Nos. Kericho/Merigi/1254, 1255, 1256, 1257, 1258, 1417 & 1418 issued upon the fraudulent partitioning of land parcel No. Kericho/Merigi/429.
  3. 3.An order of permanent injunction restraining the 1st to 5th Defendants from entering, developing and/or doing any other act jeopardizing the Plaintiff's right to quiet and peaceful enjoyment of land parcel No. Kericho/Merigi/429.
  4. 4.The 1st to 5th Defendants ordered to vacate land parcel No. Kericho/Merigi/429 within 90 days of delivery of the judgment, failing which eviction orders shall issue.
  5. 5.The 1st to 5th Defendants to jointly and severally pay the Plaintiff Kshs. 800,000/= as general damages for trespass.
  6. 6.The Plaintiff to have costs of the suit.
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Article 162(2)(b) environment and land jurisdiction; suit filed as ELC Case No. 46 of 2018)

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, "Kerich v Menjo & 6 others (Environment and Land Case 46 of 2018) [2026] KEELC 3605 (KLR)", Case Analysis (2026). ELC Case No. 46 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3605/eng@2026-06-11

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