keelc-2024-04191

4. The plaintifi laments that in 2008, the defendants by themselves and/or through their agents, entered the suit property and uprooted all the crops and trees he had grown therein in a bid to evict him. 5. Terming the actions of the defendants complained of illegal/trespass to land, the plaintifi instituted the instant suit seeking the reliefs listed herein above. 6. The defendants filed a joint statement of defence, dated 4th October 2023, denying the allegations made against them and contending that they are strangers to the alleged exchange of land between the plaintifi and their father. 7. Contending that they are the absolute and indefeasible owners of the parcels of land known as Saimo/ Kasisit/375 and 376 (The parcels are subdivisions of the suit property), the defendants’ have averred that there is no privity of contract between the plaintifi and them. Evidence Plaintifi ’s Case 8. When the case came up for hearing, Kimechwa Cheptalam ( PW.1) reiterated his pleaded case that his father and the defendants’ father exchanged land; that is to say that land parcel No. 7 was exchanged with the suit property. 9. In cross examination, PW.1 stated that the suit property is occupied by the 1st defendant; that plot No.7 initially belonged to his father; that he has no title deed or registration records showing that plot No.7 belonged to his father and that by the time the defendants’ father passed on, the suit property was registered in the defendants’ father. 10. PW.1 acknowledged that plot No. 7 is registered in the name of Joshua Kemboi (his brother, deceased) and that it is currently occupied by his brother’s children. He stated that that only a small portion of plot No.7 was excised and amalgamated with plot No.36. 11. PW.2, Elijah Nyakweli, informed the court that he had information from the plaintifi’s father that he, the plaintifi’s father, had exchanged land with the defendant’s father but could not tell which parcel; that the plaintifi’s father and he erected a fence between the suit property (land parcel No.87) and land parcel No.86; that there was no objection to the plaintifi’s use and occupation of the suit property until 2005 when the defendants invaded it. 12. In cross examination, PW.2 stated that there is cofiee planted in the portion of the suit property occupied by the 1st defendant; that the 2nd defendant has planted maize on his portion of the suit property and that he is aware the plaintifi’s father had land in Tirimonin where the plaintifi and his family live. 13. In re-examination, he stated that both the plaintifi and the defendants’ father had land in Tiriominin. Defendants Case 14. Musa Kamuren Chetalam, DW.1, informed the court that the plaintifi is part of their family; that the suit property (plot No.87) does not exist as it was subdivided into 375 and 376 registered in his name and the name of his brother (2nd defendant respectively); that they are the ones in use and occupation of the suit property (they have planted crops-cofiee, maize and trees therein); that the suit property was registered in the name of their father who passed on in 2007; that upon death of their father, they applied for and obtained letters of administration through a succession cause; that the plaintifi did https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4191/eng@2024-05-20 2

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not raise any objection to administration of their father’s estate and that upon being granted letters of administration they subdivided the suit property between themselves and others. 15. He maintained that he is not aware of any exchange of land between the plaintifi’s father and their father. 16. DW.1 informed the court that according to certificate of oficial search in respect of plot No.7, Dexbt 6(a), plot No.7 is registered in the name of Joshua Kiplelgo and not the plaintifi’s father; that he does not know who is in occupation of plot No.7; that that according to certificate of oficial search in respect of plot No.36, Dexbt 3(a), plot No. 36 belongs to Cherutich Katya who is not related to them and that he does not know who currently occupies or utilizes plot No.36. 17. DW.1 acknowledged that there was a land dispute before the land disputes tribunal over land parcel number 36 in Tiriomin section but stated that they were not involved in the case. He maintained that he does not know anything about plot No.7. 18. At close of hearing parties filed submissions, which I have read and considered. 19. From the pleadings, evidence and the submissions, the sole issue for the court’s determination is whether the plaintifi has made up a case for being granted the orders sought. Analysis and Determination 20. Concerning that issue, as pointed out herein above, the plaintifi’s case is premised on an alleged contract of exchange of the suit property (plot No.87) with plot No.7 situated in Tiriomin. 21. By dint of the provisions of Section 107 of the Evidence Act, Cap 80 Laws of Kenya, the plaintifi being the one who asserted that the suit property was exchanged with plot No.7 in Tiriomin had the burden of proof of that fact. 22. In his evidence, PW.1 acknowledged that the suit property is registered in the name of his brother and is currently being utilized by his brother. That notwithstanding, the plaintifi attempted to depart from his pleaded case by stating that only a small portion of plot No.7 was exchanged for the suit property; a fact that is not borne out or contemplated by his pleadings/plaint. 23. By dint of the provisions of Order 2 Rule 6(1) of the Civil Procedure Rules 2010, it is not allowable for parties to depart from their pleaded case unless by way of amendment of their pleadings. In that regard, see the said provision of the law which provides as follows:“ No party may in any pleading make any allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit.” 24. In the case of Raila Amollo Odinga & Another vs Independent Electoral & Boundaries Commission & 2 others (2017) e KLR the Supreme Court stated:“ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is afirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4191/eng@2024-05-20 3

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25. Having pleaded that the suit property was exchanged with plot No.7 and not a portion of plot No.7, the plaintifi cannot be heard to claim that only a small portion of plot No.7 was exchanged with the suit property. If that were the case, the plaintifi would have explicitly stated that fact in his pleadings. Moreover, the evidence adduced did not prove, to the required standard of proof, the pleaded exchange of the suit property with plot No.7 or any portion thereof as claimed by the plaintifi. 26. Having pleaded that the suit property was exchanged with plot No.7 which fact he was unable to prove, I find the plaintifi’s case to be lacking in merit and I dismiss it with costs to the defendants. JUDGMENT DATED, SIGNED AND DELIVERED AT KABARNET THIS 20TH DAY OF MAY, 2024. L. N. WAITHAKA JUDGE Judgment delivered electronically in the presence of:Mr. Kibii for the Plaintifi N/A for the Defendant Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4191/eng@2024-05-20 4

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