Nkoidoroe v Nailole

was non-existent and the Plainti had been found guilty of trespassing onto the Defendant’s land in Criminal Case No. 724 of 2016 (R. vs Wilson Kanai and Pailon Pankire). As such the suit should be dismissed with costs. 3. 4. The Defendant led a Counterclaim in which he claimed that his property Kajiado/Delalekutuk/63 only bordered land known as Kajiado/Delalekutuk/102 owned by the County Government of Kajiado. He acknowledged that there was a boundary dispute between him and the County Government of Kajiado but the same had been determined by the Kajiado County Land Registrar through a report dated 17th April 2019 which was appealed vide ELC Appeal No. 13 of 2019. The Defendant reiterated that the property Kajiado/Delalekutuk/2214 claimed by the Plainti was nonexistent and the Title Deed by the Plainti had been obtained fraudulently. He thus prayed for: a. An order of cancellation of title deed Kajiado/Delalekutuk/2214. b. Costs of the counterclaim. The Plainti in his reply to the Defence and counterclaim dated 13th July 2021 denied the Defendant’s allegation, put him to strict proof and prayed for dismissal of the counterclaim. Evidence of Plainti 5. PW1, Palon Ole Parkire adopted his witness statement dated 28th April 2021as part of his evidence in chief and produced three documents as his evidence which were marked as P. Exhibits 1-3. He stated that he was the owner of the land as shown in the map marked as P. Exhibit 3 which the Defendant had encroached on. 6. On cross examination he stated that he had a title deed for his land Kajiado/Dalalekutuk/2214 and that he was member number 198 of the Oloomunyi Group ranch as per the register in the Defendant’s bundle of documents. 7. He stated that he knew member number 198 Ole Lengetu who also resided on the group ranch’s land. He stated that a surveyor visited the suit land and a letter from the Adjudication Ocer indicated that he was not a member of the group ranch although the said letter had not been produced in court. 8. On re-examination he stated that Ole Lengetu resided on the group ranch’s land. 9. PW2 Wilson Kanjori Ole Kitima a former treasurer at Oloomunyi Group Ranch adopted his witness statement dated 15th September 2022 as part of his evidence in chief. He testied that he knew the Plainti who was a member of the group ranch and stated that he had been given parcel number 2214 by the group ranch. 10. On cross examination he conrmed that he had been elected a treasurer by members of the group ranch which had 203 members. He stated that Plainti’s father was one of the members and conrmed that they gave him the land. He indicated that the group ranch ocials sought services of Land Ocials who surveyed the land and it was then subdivided. He stated less than 20 members of the group ranch were yet to be issued with title deeds. 11. On re-examination he conrmed that according to P. Exhibit 2, Palon was member number 198. 12. This marked the close of the Plainti’s case. Evidence of the Defendant 13. DW1, Laila Ole Nailole the Defendant adopted his witness statement dated 7th March 2022 as part of his evidence in chief and produced documents in the bundle as exhibits. The documents were marked https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22422/eng@2023-12-14 2

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as D. Exhibit 1 to 22. He stated that he had not encroached on any land and parcel number 63 was his having been given to him over forty eight (48) years ago pointing out that it was among the rst parcels of land to be surveyed. He indicated that the Plainti did not have land since he was not a member of the Oloomunyi group ranch. He stated that the Plainti together with other people went to ght him on his land but they were arrested and charged in court adding that a surveyor conrmed that the land was his. He thus sought for the suit to be dismissed. 14. On cross examination he conrmed that according to the P. Exhibit 3 there was parcel number 63 and 2214 on the said map and according to that map, his land bordered the shopping centre and the Plainti’s parcel number 2214. He conrmed that the recommendation on the document on page 121 of his bundle of documents indicated “To establish boundaries on the ground” but he rejected that recommendation. He contested the allegation that he had fenced the shopping centre and the Plainti’s land arguing that the land was his. 15. On re-examination he stated that he had never seen the area map adduced by the Plainti and did not know where it came from but had seen the map at the Lands Registry. He pointed out that he was given title to his parcel at the Lands Registry way before the group ranch got its titles. 16. This marked the close of the Defendants case. 17. At the close of the oral testimonies, parties tendered nal written submissions. The Plainti ’s Submissions 18. In the submissions dated 3rd May 2023 counsel for the Plainti submitted that as per Section 24 to 26 of the Land Registration Act, a title document was prima facie evidence of ownership of land unless it could be challenged which had not been done. The Defendant had thus encroached on the Plainti’s land denying him quiet enjoyment and possession of his property contrary to Article 40(1) and 65 of the Constitution. Counsel submitted that the Defendant’s allegation that the Plainti was not a member of the group ranch and as such could not own land in the said area was disproved by Plainti’s evidence and PW2 who conrmed that the Plainti was a member and had been assigned the said land by ocials of the group ranch. Counsel further submitted that the area map adduced as evidence had also proved that the Plainti’s land indeed existed. Counsel went on to question the certicate of title adduced by the Defendant stating that it did not contain measurements of acreage his property. He also pointed out that Kajiado Civil Appeal 13 of 2019 between Laila Ole Nailole Kangu vs The County Land Registrar Kajiado bore the same facts as this instant suit. 19. He thus submitted that the Plainti was the lawful owner of property Kajiado/Dalalekutuk/2214 and the Defendant should be evicted from occupation of the said land with costs to the Plainti. The Defendant’s submissions 20. In the submissions dated 13th October 2023, counsel submitted that the issues for determination were whether the Plainti’s title deed was irregularly and illegally acquired and if so whether the court can order for cancellation of the title deed and whether the Defendant had trespassed on the Plainti’s land and whether an eviction order can issue. 21. On whether the Plainti’s title had been acquired legally, counsel submitted that the Plainti was not a registered member of the group ranch stating that on 21st June 2016 the Land Adjudication Ocer Kajiado County wrote to the public informing them that a bonade member of the group ranch was one whose name was in the group ranch’s register and someone appearing on the area list and not in the register was not a member. To this eect, counsel submitted that the Plainti adduced https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22422/eng@2023-12-14 3

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a copy of the area list where his name was number 198 on the list but not on the register of members list produced by the Defendant. Counsel also submitted that vide a letter dated 17th May 2021 the County Land Adjudicator and Settlement Ocer conrmed that the Plainti was not a registered member of Oloomunyi Group Ranch and was not entitled to any share of land in the group ranch. Counsel submitted that the Plainti did not adduce reliable evidence on to his membership status making reference to the provisions of Section 107 (1) and (2) of the Evidence Act. Therefore, the Plainti’s title was illegally acquired since he was not a member and ought to be impeached. Counsel made reference to Section 26 of the Land Registration Act and the following authorities: Nakuru Automobile House Ltd vs Lawrence Maina Mwangi & Another (2021) eKLR, Joseph Kiprotich Bor vs Tabutany Chepkoech Chebusit [2021] eKLR, Daudi Kiptugen vs Commissioner for Lands & 4 others [2015] eKLR and Munyu Maina vs Hiram Gathiha Maina [2013] eKLR. Counsel also submitted the Supreme Court case of Dina Management vs County Government of Mombasa & 5 others [2022] KESC 24 (KLR) which held that process to attaining a lease or title ought to be followed else the title cannot be held as indefeasible. 22. On whether the court could cancel a title deed, counsel submitted that Section 80 of the Land Registration Act gave court the authority to order cancellation or rectication a title that had been acquired irregularly such as the Plainti’s title also citing Joseph Gitari vs Muthui Chomba & 7 others [2018] eKLR, Republic vs Minister for Transport and Communication & 5 others ex parter Waa Ship Garbage Collector & 15 others [2006] 1KLR (E&L) 563 and Daudi Kiptugen (supra). 23. On whether the Defendant had trespassed on the Plainti’s land and should be evicted, counsel submitted that the Plainti’s suit property only appeared on paper but on ground and no survey laying beacons had been eected. Counsel went on to point out that the Plainti had never been in possession of the said property since acquiring its title in 2003. Counsel added that having determined that the Plainti was not a member of the group ranch and did not acquire the property procedurally meant he was not entitled to any property and therefore there could be no trespass to a property that did not belong to him citing Charles Ogejo Ochieng vs Gorey Okumu (1995) eKLR where court of Appeal held that “…the proper plainti in an action of trespass to land is the one who has title to it…” 24. Therefore, the Defendant was entitled to quiet possession of his land and his counterclaim should be allowed as sought. Analysis and Determination 25. 26. I have considered the pleadings, the evidence on record, the submissions and the authorities cited. The issues for determination are: i. Whether the Plainti is the owner of property Kajiado/Dalalekutuk/2214 ii. Whether the Plainti is entitled to the reliefs sought? iii. Whether the Defendant’s counterclaim is merited and entitled to the reliefs sought therein. iv. Who should bear costs of the suit? The dispute at hand revolves around a claim of trespass by the Plainti, alleging that the Defendant encroached upon his land and proceeded to fence it. The Defendant vehemently contests this assertion, contending that the contested parcel, Kajiado/Dalalekutuk/2214, was non-existent. Additionally, the Defendant argues that the Plainti’s membership in the Oloomunyi group ranch was invalid adding that any existing boundary dispute had been previously resolved through the Land Dispute Adjudication report dated 17th April 2019 and ELC Appeal 13 of 2019. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22422/eng@2023-12-14 4

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27. To ascertain whether the issue was resolved, I shall begin by looking at the Land Dispute Adjudication report dated 17th April 2019. It is noted that report delineates a dispute involving various parcels, including Kajiado/Dalalekutuk/102 (the Defendant’s land), Kajiado/Dalalekutuk/2214 (the Plainti’s land) among other parcels. The report reads in part: “ On the 27th March, we visited the site and the attendance was as per the attached list herein above. The following are statements by the aected parties. Statement by Laila Ole Nailole Kangu Kajiado/Dalalekutuk/63… on physical identication of the said boundary marks on the ground, he showed us beacon D5, D7 and D9… Statement by Palon Ole Parkire Nkoitoree Kajiado/Dalalekutuk/2214… on the site he went and showed beacons No. D9. Statement by Joseph Nailole Kajiado/Dalalekutuk/2072… can identify beacons to his land including beacon D9. … (v) Observation based on the appearance of features (a) Shape of the RIM (b) Shape of the pickings The shape of the two parcels i.e. 102 and 63 in original adjudication map agrees well with the RIM. The same RIM is the basis of our records, agrees well. … (ix) The boundary line connecting points D9, D7 and D5 as per the owner of parcel 63 is a straight line. (x) Observation based on the borderline as per the representative of the community is that the same is not a straight line. (xi) The resultant shape as per the pickings of the community representative parcel no. 102- compares well with both original adjudication map and the RIM. The resultant shape for parcel no. 63 defers with the one on the RIM and original adjudication map. On plotting the picking as per the owner of 63, the resulting shape ended up aecting the individual parcels with Olumunyi Group Ranch to wit parcels 2072, 2275 and 2085. According to the community the pickings aected the individual parcels 2228, 2075 and 2085. Analysis as to border line, dispute the boundary along D9, D7, D5 and D8 as per both owner of 63 and original adjudication map they are parallel having a distance of 600 meters between them. This clearly indicate they are two distinct position and not compatible. This further informs why there is acreage increase for parcel Kajiado/Dalalekutuk/63. … Accordingly having analysed the evidence addressed and having taken into consideration all records tendered it is now my considered opinion that: … https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22422/eng@2023-12-14 5

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(b) If we adopt any of the two shapes as per the owner of parcel 63 and parcel 102, the same will disinherit some persons who are the beneciaries of the Olomunyi group ranch and are aected by the dispute. … Having taken all the above considerations, I now direct that the trading centre that is Kajiado/Dalalekutuk/102 and neighbouring parcels be established on the ground as per the original adjudication map and the RIM. Further, the boundary line separating Olomunyi Group ranch and the trading centre (102) and parcel number 63 passing through D9, D7 and D5 should be established on the ground as per the original adjudication map and the RIM.” 28. Following this ruling, the Defendant appealed vide Kajiado ELC Appeal 13 of 2019 which I have taken time to peruse. The said Appeal was dismissed on 14th February 2023 by Gicheru J. Part of the judgement reads: “ “ 7. … Coming now to the issues, I nd that there was a dispute between the owners of LR Kajiado/Dalalekutuk/102 and other parties namely Kajiado/ Dalalekutuk/63, 2070, 2072, 2069, 2073, 2075, 2085, 2084, 2226, 2214 and 64. The disputants were Olomunyi trading centre and the neighbouring parcels. Under sections 18 and 19 of the Land Registration Act, it is only the Land Registrar who has power to determine boundaries of registered land. … I nd no evidence to prove that the Land Registrar failed to take into consideration any relevant material… The report by the Land Registrar is very comprehensive and deals with all aspects of the exercise. It has not been faulted at all by any expert in surveying and land registration. I nd that it is neither fair nor just to interfere with a legitimate exercise carried out by a legitimate authority and which has not been shown to be faulty in any way. For the above stated reasons, I dismiss the entire appeal with costs to the respondents. It is so ordered.” 29. It is noted that the Land Surveyor ruled that the Defendant’s land had encroached on the neighbouring lands and directed the delineation of precise boundaries between the disputed parcels as per the Original Adjudication Map and RIM. This court armed that decision as having been conclusively adjudicated upon. In that regard, this court nds that the issue of boundary dispute and encroachment on the Plainti’s land is res judicata as it has been determined by a court of equal status. 30. It is pertinent to emphasize that the boundary dispute between the Plainti’s and Defendant’s land having been addressed, all involved parties are now obliged to honour and comply with the decision rendered by the Land Registrar. This decision, having settled the dispute, carries the weight of authority and requires strict adherence and respect from all concerned parties involved in the matter. 31. Therefore, this suit together with the Defendant’s counterclaim is hereby dismissed with no orders to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22422/eng@2023-12-14 6

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DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 14TH DAY OF DECEMBER 2023. L. KOMINGOI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22422/eng@2023-12-14 7

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