Magara

with General Damages and a permanent injunction against further encroachment and trespass. The Plaint is dated 14/12/2016 and was amended on 14/6/2023. a. Return of a portion of Land Measuring approximately 4.5 metres wide and 82 metres long (0.04HA) unlawfully taken from LR NO.GESIMA SETTLEMENT SCHEME/509 and included as part of the Road of Access during the purported expansion of the Road. aa) Return of the portion of land measuring approximately 4.5metres wide by 82 meres long (0.04HA) unlawfully curved out of LR No.GESIMA SETTLEMENT SCHEME/509 and included as part of the Road of Access during the purported expansion of the road OR Alternatively the value of the suit portion of land of Kshs.575,000/= as outline and/or described in paragraphs 7A and 14 hereinabove. b. Payment of Kshs.707.345.60. bb) Total payment of Kshs.1,282,3645.60 being the value of the uprooted and/or destroyed tea bushes and trees together with the value of the suit portion of land. c. General Damages for the wasted portion of Land. d. A permanent injunction to permanently restrain the Defendants jointly and severally and/ or their agents, servants or assignees from in future encroaching or trespassing onto the Suit Land beyond the provided for measurements of the Road reserve in the Registry Index Map and/or in anyway or manner whatsoever whatever reasons(s) whatsoever trespassing or interfering with the Plainti’s quiet possession, occupation and user of LR.NO. GESIMA SETTLEMENT SCHEME/509. e. Costs of this suit. f. Interest at Court rates in (b) (c)(d) and (f) above. 2. On 8/2/2017 this Court ordered that the Land Registrar and County Surveyor, Nyamira do visit the land GESIMA SETTLEMENT SCHEME/509 and delineate the road of access and x its dimensions within 90 Days from the date of the order. On 15/12/2021 a further order was made that the Government Valuers, Kisii, Homabay and Migori counties do visit the suit land for purposes of evaluating the Damage caused by the Defendant in October 2016 and le a Report in Court within 10 Days thereafter. On 3/1/2022 the Principal Valuer Kisii/Nyamira Mr. Obadiah Onkundi wrote to Court saying he was unable to carry out the assessment of the Damage and that he was not provided with the requisite road design for the subject road indicating the boundaries and measurements for valuation purposes. On 1/3/2022, a further order was given that parties agree on the measurements of the encroached area and the number of tea bushes destroyed and the Report led in Court on or before 14/3/2022. 3. On 29/6/2023 the Defendants led an amended Defence denying the entire claim by the Plainti. 4. The Plainti through Bathseba Nyaboke Magara testied on 5/7/2023 by adopting her statement dated 14/12/2016 in which she repeated the averments in Plaint. She said that on 26/10/2016 when she came back home from work, she found that her tea bushes, trees and fences had been destroyed by a tractor that was constructing the road through their land. She also produced the following documents to bu up her case: 1. Title Deed in respect of Gesima Settlement Scheme/509 2. Power of Attorney donated from the Donor to the Donee dated 16th June, 2016. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14096/eng@2024-12-11 2

page 2 of 5

3. Letter from the Area Chief addressed to Forester Borabu Sub-County dated 28/10/2016. 4. A letter from Police addressed to Forest Ocer dated 2nd November, 2016. 5. A letter from Area Chief addressed to the Ministry of Agriculture dated 3/11/2016. 6. Advocates letter dated 16th November, 2016 to the County Land Registrar Nyamira. 7. Certied Copy of the Register in respect of Nyamira/Gesima Settlement Scheme/509. 8. Demand Notices addressed to the Defendants. 9. Pictures of the site showing damaged Tea Bushes dated 27/10/2016. 5. She said that the suit land belongs to her husband who was at the material time in the United Kingdom and that the road was expanded from 5 metres to 12 metres into their land albeit illegally by the Defendants. The ora of the destruction totals Kshs. 707,345.60 and the value of the land taken away 0.04 Hectares was valued at Kshs. 575,000/= which she claimed together with General Damages. On cross-examination by Mr. Nyangera for the Defendants the witness said she was not at home when the destruction started being carried out but found it in the process and was able to establish that the tractor belonged to the 1st Defendant because of a sign on the ground showing that the 1st Defendant was the one carrying out the road construction. She said the total number of trees uprooted was 47 and 667 tea bushes. 6. PW2 Benard Nyabuga Motanya, a registered surveyor from Geomatics Services testied that he visited the suit land on 1/11/2016 for purposes of conrming the extent of encroachment. He had Map Sheet No. 1 of GESIMA SETTLEMENT SCHEME which had Plot No.509 which showed that the road was 8 metres wide but on the ground it had been encroached to the extent of 82 metres by 4.5 metres wide, approximately 0.0369 Hectares. He then produced the following documents: 1. Title Deed in respect of Gesima Settlement Scheme/509. 2. Power of Attorney donated from the Donor to the Donee dated 16th June, 2016. 3. Letter from the Area Chief addressed to Forester Borabu Sub-County dated 28/10/2016. 4. A letter from Police addressed to Forest Ocer dated 2nd November, 2016. 5. A letter from Area Chief addressed to the Ministry of Agriculture dated 3/11/2016. 6. Advocates letter dated 16th November, 2016 to the County Land Registrar Nyamira. 7. Certied Copy of the Register in respect of Nyamira/Gesima Settlement Scheme/509. 8. Demand Notices addressed to the Defendants. 9. Pictures of the site showing damaged Tea Bushes dated 27/10/2016. 7. On cross-examination by Mr. Nyambane for the Defendants he mentioned that the scale of the map was 1:10,000. 8. PW3 Rael Otundo, a valuer said she visited the suit land on 13/9/2021 for purposes of ascertaining the encroached land which she put at approximately 0.04 Hectares which she valued at kshs.575,000/ =. She produced the valuation Report dated ……………………..which on cross-examination she said she based it on where the land is, the topography, soils and the use of the land and also disturbance allowance. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14096/eng@2024-12-11 3

page 3 of 5

9. There being no re-examination, PW4 Anthony Onyango, an Agricultural Ocer within the Ministry of Agriculture, County Government of Nyamira produced the Report of one retired Edward Ngare Mabeya dated 7/11/2016. 10. Ms. Rael Nyamita Nyataire, Assistant County Forest Conservator, Nyamira produced the Report of Tom Mungai, a retired Sub-County ocer Borabu. The same is dated on 6/12/2016 before his retirement. It concerns the felled trees on GESIMA SETTLEMENT SCHEME/509. And on crossexamination by Mr. Maranga for the Defendant, Ms. Nyataige said the rate of the destroyed trees is determined by Legal Notice No. 21 of 2016 and that she obtained the Report from Nyamira County Forest Oces. At that point, the Plainti closed her case. This was followed by the evidence of Dennis Nyamberega, the 1st Defendants Roads, Engineer relying on his statement recorded on 25/8/2024, the witness maintained that the area the road was extended to is a road reserve and a public road for that matter. He then produced the following documents:-Road Design Manual.Land Registrar’s Report dated 21/2/2018.County Surveyor’s Report dated 22/2/2018.Copies of Site Sketch Map. 11. On cross-examination by Mr. Momanyi for the Plainti, the witness admitted that the manual he was using, prepared by his employer’s Roads Department of the Ministry of Works is not signed and that it is a guideline of Roads National Government from the Ministry. He said that the 2.4 metres wide encroachment was a road reserve and that the Defendant never went beyond the road reserve. He said that the manual does not need to be signed once prepared. This closed the Defendant’s case. 12. From the evidence produced in Court, the Plainti has proved her case on a balance of probabilities and is granted Judgment as follows: a) Return of the portion of land measuring approximately 4.5metres wide by 82 meres long (0.04HA) unlawfully curved out of LR No.GESIMA SETTLEMENT SCHEME/509 and included as part of the Road of Access during the purported expansion of the road OR Alternatively the value of the suit portion of land of Kshs.575,000/= as outline and/or described in paragraphs 7A and 14 hereinabove. b) Payment of Kshs.1,000,000/= being the value of the uprooted and/or destroyed tea bushes and trees together with the value of the suit portion of land. c) A permanent injunction to permanently restrain the Defendants jointly and severally and/ or their agents, servants or assignees from in future encroaching or trespassing onto the Suit Land beyond the provided for measurements of the Road reserve in the Registry Index Map and/or in anyway or manner whatsoever whatever reasons(s) whatsoever trespassing or interfering with the Plainti’s quiet possession, occupation and user of LR.NO. GESIMA SETTLEMENT SCHEME/509. d. Costs of this suit. e. Interest at Court rates in (a) if the Defendants opt for the alternative prayer, (b) (c) and (d)) above. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 11TH DAY OF DECEMBER, 2024. MUGO KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14096/eng@2024-12-11 4

page 4 of 5

In the Presence of: Court Assistant: Brenda Plainti: Mr. Momanyi Defendant: Ms. Kerubo h/b for Mr. Maronga. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14096/eng@2024-12-11 5

page 5 of 5