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land. That despite the foregoing, the Defendant uprooted and destroyed the beacons, particulars of which are enumerated in paragraph 10 of the Plaint. 4 The Defendant led his Statement of Defence on 13th February, 2018, opposing the Plainti’s averments and invited him to strict proof of the contents thereof. The Defendant further averred that he is the registered owner of Mitubiri/ Wempa Block 2/ 981, and claimed that he took actual possession of the said land in 1979. It is his case that his ownership of the suit property has been challenged twice; one was in April 2016, by a Mr. Ng’ang’a Kibono, and the other one in December 2016, by the Plainti. He refuted the Plainti’s allegations and challenged the authenticity of his title. 5 The matter proceeded by way of viva voice evidence. The Plainti gave evidence for himself, called one more witness, while Defendant gave evidence and called three witnesses. Plainti ’s Case 6 Pw1 Benard Mungai Wanyoike, the Plainti herein, adopted his witness statement dated 19th January 2017, as evidence in chief and relied on the bundle of documents led alongside his Plaint. He maintained that his deceased father was a member of Methi & Swani Farmers Cooperative Society, hereinafter referred to as “the Society”, That after his death, the Plainti sought for title deed for the suit land, which he was issued in 2016. He claimed that a Surveyor had visited the suit property, and beacons were set up, but were later destroyed by the Defendant. 7 On cross-exam, the Plainti maintained that his father was a member of the Society, but he did not have any register to demonstrate this. It was his testimony that he had no documents showing that the land belonged to his father. He added that his father never took him to the suit land, and it was his testimony that he was never issued with any beacon certicate. 8 Pw2 Stanley Ngotho, adopted his witness statement dated 22nd August 2018, as evidence in chief. He testied that he was a member of Methi & Swani Farmers Co-operative Society, since 1970, and became an ocial in June 2009, as treasurer. He also told this Court that there was double allocation of some parcels of land, and also added that the society had issued instructions that the name of the Plainti be registered as the owner of the suit property. Further that the society issued instructions based on the documents which showed that the Plainti was the owner of the suit property. Additionally, he told the Court that the Society started issuing titles in 2011. Unfortunately, the witness died before he was cross-examined. The Plainti closed his case. Defence Case 9 Dw1 Erastus Kamau Karanja, adopted his witness statement dated 8th February 2018, as evidence in chief and relied on the documents led alongside his Defence as exhibits. On cross-examination, he testied that he was allocated ½ acre piece of land by the Methi & Swani Farmers Cooperative Society, and a title deed issued in 2011. He also told this Court that the land is owned by himself and he has been living thereon since 1979. He also informed the Court that he removed the alleged beacons because they were placed on his parcel of land. He further added on re-exam, that the beacons were placed by a person not known to him. 10 Dw2 Jared Kimani Njoroge, adopted his witness statement dated 3rd December 2018, as evidence in chief. On cross –examination, he testied that he was issued with ballot No. 930, and he knew nothing about the land owned by the Plainti’s father. The Defendant closed his case. 11 Dw3 Muthoni E. M Mputhia, the Land Registrar Murang’a, informed this Court that there was no boundary between the two suit properties. She added that the total area was 0.2550ha, for the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 2

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properties;- that whereas land parcels No.930, measures 0.098ha, but land parcel No. 981, measures 0.16ha. Further that land parcel No.930, only appears on the Registry Index Map (R.I.M), but does not appear on the ground. 12 When examined by counsel for the Plainti, she told the Court that a wrong acreage was indicated on the Map, and that the acreage on the Green Card did not correspond to what is on the ground. It was her further testimony that the error can be cured by amending the RIM and the Green Card. She also told the Court through the Defendant’s counsel on cross-exam that there is a problem with Mitubiri/ Wempa Block 2, where the suit properties are located. Further that the Green Card for land parcel No. 930, has cancellation which she pointed out that it might have been surrendered. 13 Dw4 Peter Kimotho, testied that the general sizes of the parcels of land for members were ½ acres. Additionally, that ballot No. 930, belonged to Jared Kimani, who has title for Parcel No. Block 2/100. On cross-exam, he testied that there were a number of complaints about the sizes of the plots and also added that there was duplicity of land parcel No. 930, which showed 930 plain and 930 new. It was his further testimony that the titles were issued based on Maps and not what was on the ground. 14 At the end of the hearing, parties led their written submissions as directed by the Court. 15 The Plainti led his written submissions on the 1st February, 2023, through the Law Firm of Karanja Kang’iri & Co. Advocates. He submitted that he had established a case against the Defendant and added that the Constitution is protective of his right to property, which must be protected by the Court. He urged the Court to order the Land Registrar Murang’a, to mark boundaries and erect beacons. He invited this Court to be guided by the cases of Rose Wangui Kivunye vs. Samuel Mwangi Ngugi(2019) eKLR, and Hassan Mohammed Haji vs. Mohammed Keynan & Another (2019) eKRL. 16 The Defendant led his written submissions through the Law Firm of Nduati Charagu & Co. Advocates, reiterating the evidence on record. The Defendant submitted that the acquisition of the Plainti’s title was suspicious as the land had been rst registered in the name of Martha Muthoni Muiruri, and it is not clear whether her title had been surrendered to Land’s registry or no. 17 In submitting that the Plainti had not led evidence on how his title was acquired, he invited this Court to the pronouncement in case of Munyu Maina vs. Hiram Gathuha Maina(2013)eKRL, where the Court cautioned that a party ought to lead evidence as to the legality of how he acquired the title. 18 On whether the Defendant was a trespasser, he submitted that within the meaning of trespass espoused in Section 3(1) of the Trespass Act, the Plainti was not in possession or ownership of the suit land, thus no trespass can issue. Reliance was placed on the case of Samuel Mwangi vs. Jeremiah M’itobu {2012}eKLR, where the Court opined that a possessor of land may not claim trespass where he cannot, himself show that he has the right to recover the land immediately. It was the Defendant’s submissions that the Plainti is not entitled to the prayers sought and urged this Court to dismiss the suit. 19 It is important for this Court to point out at the earliest that the Plainti is the registered owner of Mitubiri/Wempa/BK.2/930, measuring 0.2023Ha, having been issued with title on 5th May, 2016. The Defendant is the registered owner of Mitubiri/ Wempa/BLK.2/981, measuring 0.2023Ha, having been issued with a title deed on the 28th July, 2011. As per the Map, led by the Plainti, the two parcels of land are adjacent to each other. 20 Further, it is common ground that Methi and Swani Farmers’ Co-operative Society Limited, was the original allottee of Mitubiri/ Wempa Block 2. There was an admission by the liquidator that there existed disputes about the ownership and sizes of the parcels of land within the said block, but what was clear is that each member was entitled to ½ acres. There is also an admission that the parcels of land https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 3

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contained in the Registry Index Map(RIM), are not in tandem with what was on the ground. This is to the extent that whereas land parcel No. Mitubiri/Wempa/BK.2/930, can be seen on the Map, the same cannot be located on the ground. The only body that can help this Court shade light on the foregoing is the said Methi & Swani Farmers Co-operative Society and the Land Registrar – Murang’a. Sadly, the said Society has since gone under and DW4 was limited with facts thereof. 21 However, this Court is alive to the Constitutional right of both the Plainti and the Defendant herein to own property as submitted by Plainti. Perhaps to emphasize, it is important to reproduce Article 40 of the Constitution, which provides as follows; (1) (2) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— (a) Of any description; and (b) In any part of Kenya. Parliament shall not enact a law that permits the State or any person-(a) (3) 22 To arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) To limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specied or contemplated in Article 27 (4). The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation(a) Results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) Is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that (i) Requires prompt payment in full, of just compensation to the person; and (ii) Allows any person who has an interest in, or right over, that property a right of access to a court of law.…” This Court has the mandate to protect proprietary rights of both parties herein. Thus, having read through the pleadings and annexures thereto, analyzed the testimonies and guided by the rival written submissions and the authorities thereto, the issues for determination are i. Whether the Defendant trespassed into the Plainti’s parcel of land ii. Whether the Plainti is entitled to the prayers sought? iii. Who should pay costs for the suit? I. Whether the Defendant trespassed into the Plainti ’s parcel of land? 23 The Plainti maintains that the Defendant has trespassed unto his land, while the Defendant objects and maintains that he is in occupation of his land. Both parties have title to their respective parcels https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 4

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of land and are claiming to have duly and legally obtained their titles. Section 26 (1) (b) of the Land Registration Act gives sanctity to titles held by registered owners. It provides: The certicate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner … and the title of that proprietor shall not be subject to challenge, except – 24 (a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” Both the Plainti and the Defendant have incontrovertible right over the suit properties as both parties have titles. By dint of the above provisions, both parties have the right to have their titles protected by this Court. What is evident from the Plainti’s claim is that the Defendant has encroached on his land, and thus the reason that he seeks mesne prot and an order of permanent injunction from the Defendant. In seeking to answer this issue, the Court will determine the following; a. Where is the Plainti’s land? b. Is the Defendant occupying the Plainti’s land? c. Who is to blame for the confusion if any? a. Where is the Plainti ’s land? 25 It is important for this Court to determine this for the reason that DW4 testied before the Court that while the Plainti’s title is contained in the Map, it is not the case on the ground. Whereas the Defendant has his land reected on the Map and the ground. 26 The burden of proof was on the plainti to show that although the Plainti and Defendant each have separate titles, that his land exists on the ground. Further that the Defendant had encroached unto the Plainti’s portion of land, which according to him, the Defendant is occupying entirely. The Plainti did not bring out clearly or through evidence before this Court to demonstrate how he was able to identify his parcel of land and the boundaries if any. Interestingly, the Plainti testied that his deceased father was a member of the Methi & Swani Farmers Cooperative Society, and thus acquired the land through him. Even though he allegedly acquired the land through his deceased father, there is no evidence that he was ever shown the land by his father, and there was an admission on crossexamination by the PW1 that he never saw the land. 27 As per the report produced in Court by the Land Registrar, the Plainti claimed to be the owner of ballot No.930, and claimed to have been shown the land by ocials from the Society. The Defendant on the other hand claimed to be aware of the boundaries. According to the Land Registrar’s Report, there were no boundaries between the two parcels of land. Importantly, the Report indicated that both parcels measured 0.2023, which is not a reection of the acreage contained in the title deeds. If this Court was to go by the said Report, then the total acreage would be 0.4046Ha. What this means is that this is only one land. The testimonies of DW3 and DW4 did not aid the Court in any way, but rather threw the Court in the realm of their inconsistency. 28 The question of boundaries is an issue to be determined by the Land Registrar. Section 18 of the Land Registration Act makes provisions for boundaries and it provides https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 5

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18. (1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been xed, the cadastral map and any led plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel. (2) The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section. (3) Except where, it is noted in the register that the boundaries of a parcel have been xed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: 29 Provided that where all the boundaries are dened under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, Cap. 299. 30 The approximate boundaries are supposed to be in line with the Cadastral Map as indicated in Section 18 of the Land Registration Act. This Court has not been called upon to determine the boundary dispute, but to issue an injunction based on alleged encroachment. In determining whether there was an encroachment or not, this Court will have to establish whether there were boundaries erected or not. 31 The Plainti is claiming ownership of the land parcel occupied by the Defendant, which as per the Land Registrar’s Report, seems to be one at the same. DW4 testied that they gave land based on the RIM, but not the ground. As correctly put out by the Court in the case of Samuel Wangau Vs. AG & 2 others (2009) eKLR, RIM are not authorities on boundaries. The Court held as follows: However, it is common ground that such maps (Registry Index Map) are not authorities on boundaries..... Indeed section 21(1) of the Registered Land Act is to the eect that unless the boundaries of a parcel of land has been xed as provided for under section 22 of the said Act, R.I.M. shall be deemed to indicate only the approximate position and situation of the parcel of land.....It means therefore that when and where there is a dispute as to the position and location of a boundary as in this case, unless the same is a xed boundary, one has to go beyond the Registry Index Map in solving the dispute.” 32 Section 18(1) of the Land Registration Act, is a replica of Section 21(1) of the Registered Land Act(repealed) on xed boundaries. Section 19 of the Land Registration Act empowers the Land Registrar to establish boundaries. It provides: 19. (1) If the Registrar considers it desirable to indicate on a led plan approved by the oce or authority responsible for the survey of land, or otherwise to dene in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and x the boundaries. (2) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be dened by survey, the precise position of the boundaries in question, le a plan containing the necessary particulars and make a note in the register https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 6

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that the boundaries have been xed, and the plan shall be deemed to accurately dene the boundaries of the parcel. (3) Where the dimensions and boundaries of a parcel are dened by reference to a plan veried by the oce or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries xed under this section. 33 Presently, it is not clear how the RIM, could be obtained without clear demarcations and boundaries.DW3 admitted that there was no boundary on the ground between the two parcels of land, as at the time the boundary dispute report was availed. She added that the ground measurement for 930 was 0.098 ha. while that of 981 was supposed to be 0.16ha. She observed that “the observation was that the claim and the owner of land parcel No. 930 appears on RIM, but not reected on the ground” 34 It is uncontroverted that the Defendant was the rst to obtain ownership of the suit land. From the evidence on record, the Defendant was allocated plot No. 524, which is land parcel No 981, in the RIM. The Plainti on the other hand was issued with land parcel No. 930. There is glaring confusion on how he acquired the suit land. In the rst instance, he indicated that his father bought him the shares from the Society. There was no evidence that his father was a member of the Methi & Swam Farmers Co-operative Society. 35 At the hearing before the Land Registrar and as per the Report led in Court, the Plainti testied that he was the owner of ballot No. 930. Unfortunately, DW2 testied that he was the owner of ballot No. 930. This Court has perused both ballots and notes that whereas the Plainti’s ballot is 930, it is indicated as new while that of DW2 only indicate 930. DW4 testied that there was duplicity of ballots. The reason for the foregoing was not explained to this Court and it only remains to be a statement with no evidential support. 36 The Plainti testied to have been a member of the Society by dint of his father’s membership. As per his documents, specically a Share Certicate issued by the Society, he was issued with Certicate No. 2257 on the 7th September, 1984. There is no evidence that his father had a Share Certicate. The Society through DW4 testied to have been dealing with adults only. It was the testimony of the Plainti that he was born in 1973. He was eleven (11) years when he was allegedly issued with the Share Certicate. He was therefore a minor. While this Court would have held otherwise, had it been established that the Plainti’s father was a Member or had done this for and on behalf of the Plainti, this Court is guided by the evidence of DW4 that minors could not own property. As per the letter dated 20th May 2014, addressed to the Land Registrar by Methi & Swani Farmers Co-op. Society Limited, the Society requested the Land Registrar to have the Plainti registered as the owner of Mitubiri/Wempa/BK.2/930. As per the contents thereof, the Plainti bought the suit land. This contradicts his testimony that his father acquired the land on his behalf. 37 It is not desirable for this Court to be led by such inconsistency, as to how the Plainti acquired the suit land. However, there is an admission by an ocial of the Society, DW4, that the Plainti acquired land from the Society. It was thus the sole duty of the Society to lead evidence before this Court as to the exact location of the parcel of land. While the burden of proof rested with the Plainti, the evidentiary burden was shifted to the DW4, to lead evidence. Unfortunately, the Plainti did not see the need to include the said Society, which sanctied his title and showed him his parcel of land. As per the boundary dispute report, he admitted that while he was shown the land there was a house and there was farming taking place. This conrms the Defendant’s claim that he is occupying the suit land. There is nowhere in the report that shows that the Defendant has encroached unto the Plainti’s land. If any, the Plainti’s land is not reected on the ground. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 7

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38 Even though the issue of the Plainti’s membership in the Society was not clearly raised in the suit, it is relevant to determine it in order to know how he acquired the land, which as per the records had already been allocated to the Defendant. This Court has already found hereinabove that despite the inconsistency on how the title was acquired, the admission by DW4 that they issued title to the Plainti based on the letter dated 20th May 2014, and the receipts, guides the Court in concluding that the Plainti’s title is authentic. 39 Whether the Defendant trespassed unto the Plainti’s land or not, could be obtained from the evidence on record. Section 3 (1) of the Trespass Act, Cap 294, provides that: 40 Any person who without reasonable excuse enters, in or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an oence.” 41 The Court in Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR when determining an issue of trespass considered the following ndings 35. In M’Mukanya v M’Mbijiwe (1984) KLR 761, the ingredients of the tort of trespass were revisited by this Court and restated as follows: “trespass is a violation of the right to possession and a plainti must prove that he has the right to immediate and exclusive possession of the land which is dierent from ownership (See Thomson v Ward, (1953) 2QB 153.” 36. Further, in Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition at page 428 states as follows: Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sucient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.” [Emphasis supplied].” 37 Based on the ndings of the Court above, there is no evidence that the Defendant has encroached unto the Plainti’s land. It is thus safe for this Court to conclude that the Plainti has not adequately established that he is the owner of the property occupied by the Defendant. 38 As it is, the Plainti is holding a valid title, which seems to be just a piece of paper conferring rights, but not reective of ownership on the ground. He has a right to seek remedy from the Methi & Swani Farmers Co-operative Society and the Land Registrar Murang’a, who, as it appears from the evidence, are the reasons for the confusion and double allocation. In nding so, this Court appreciates the pronouncement of the Court of Appeal in the case of Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others [2013] eKLR, where the Court held: The Registration of Titles Act is entirely a product of the Torrens System of registration. The word “Torrens” is derived from Sir Robert Torrens, the third premier of South Australia and pioneer and author of a simplied system of land transfer which he introduced in 1958. This system emphasizes on the accuracy of the land register which must mirror all currently active registerable interests that aect a particular parcel of land. Government as the keeper of the master record of all land and their owners guarantees indefeasibility of all rights and interests https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 8

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shown in the land register against the entire world and in case of loss arising from an error in registration, the person aected is guaranteed of government compensation. This statutory presumption of indefeasibility and conclusiveness of title under the Torrens System can be rebutted only by proof of fraud or misrepresentation which the buyer is himself involved.” 42 To this end, this Court nds and holds that the Defendant has not trespassed unto the Plainti’s parcel of land. The Court empathizes with the Plainti, who might have fallen victim of the unscrupulous dealings of the society. II. Whether the Plainti is entitled to the prayers sought ? 43 The Plainti sought orders for permanent injunction and mesne prot. It is on the premise of trespass that the Plainti sought for an order of permanent injunction against the Defendant. A permanent injunction unlike a temporary injunction seeks to give nality to a matter. This was well enunciated by the Court in the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR where it held: A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plainti to be protected. 9. A permanent injunction is dierent from a temporary/interim injunction since a temporary injunction is only meant to be in force for a specied time or until the issuance of further orders from the court. Interim injunctions are normally meant to protect the subject matter of the suit as the court hears the parties.” 44 Essentially a party should travel beyond the three fold principles established in Giella v Cassman Brown Co. Ltd 1973 E.A. 358, and prove his case on a balance of probability. This is in light of the fact that a permanent injunction is conclusive based on evidence adduced. 45 The Court has already found hereinabove that the Plainti has failed to establish her claim for trespass as against the Defendant. Additionally, the Plainti has on a balance of probability failed to show this Court that the Defendant is occupying his land or is occupying land in excess of his allowable 0.0203ha, as per the title deed. This Court notes and appreciates that the Plainti has a title deed allegedly to the suit property. He has never been in occupation of the said suit land and it is right to nd and hold that he has not developed thereon. 46 Be that as it may, he has a right that ought to be protected, but which he has not adequately led any evidence before this Court that the Defendant has infringed on by his occupation. There is no harm that the Plainti will suer if the permanent injunction as sought is not granted. Even so, he has not adduced any shred of evidence to persuade this Court that he is entitled to the permanent injunction. This Court therefore concludes that the Plainti has not established his case on the required standard. Therefore, it follows that a permanent injunction cannot be issued against the Defendant and this prayer is not merited. 47 Having found that there was no trespass, the claim for mesne prot cannot be sustained and it must fail. Consequently, it is the nding of this Court that the Plainti has failed on a balance of probability to demonstrate that he is deserving of the prayers sought and proceeds to dismiss his claim as contained in the Plaint dated 19th January 2017, and led on the same date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 9

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III. Who should pay costs for the suit? 48 The award of costs is discretionary. The Defendant is the successful party and this Court nds no reasons to deny him costs. Thus the Defendant is awarded Costs of this suit. 49 The upshot of the foregoing is that the Court nds and holds that the Plainti has not proved his claim against the Defendant on the required standard of balance of probability. 50 Consequently, the Plainti’s suit is dismissed entirely with costs to the Defendant herein. 50 It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 23RD DAY OF MARCH, 2023 L. GACHERU JUDGE In the presence of; Lily Mwende - Court Assistant M/s Mugo H/B Karanja Kang’iri for the Plainti Mr Gichuki for the Defendant 23/3/2023 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16410/eng@2023-03-23 10

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