Chelule (Suing as legal representative of the Estate of the Late Chelule Chebunye - Deceased) v Chesang & 22 others; Chelule (Interested Party) (Environment and Land Case E018 of 2024) [2025] KEELC 7095 (KLR)

ELIJA CHERUIYOT ...................................................................... 17TH DEFENDANT GRACE CHEMUTAI ..................................................................... 18TH DEFENDANT CHEPKURUI TESOT .................................................................... 19TH DEFENDANT ANN SANG ..................................................................................... 20TH DEFENDANT JOHN NGENO ................................................................................ 21ST DEFENDANT SARAH CHEPKOECH KOECH .................................................. 22ND DEFENDANT DAVID KOECH AND PAUL BORE (SUED AS THE OFFICIALS OF WORLDWIDE CHURCH) ........................................................... 23RD DEFENDANT AND DECCA CHEPKEMOI CHELULE ......................................... INTERESTED PARTY JUDGMENT Introduction. 1. The Plaintifi commenced the present proceedings vide the Plaint dated 2nd June, 2021. 2. The Plaintifi avers that Chelule Chebonye (deceased) is the owner of Plot No. 144 which measures twenty acres and that it is situated on land parcel No. Molo South Block 2/11323 (Kirobon) that measures 3972 acres. 3. The Plaintifi also avers that that Chelule Chebonye (deceased) purchased the said parcel of land from Kirobon Farmers in the 1980’s. 4. The Plaintifi further avers that Chelule Chebonye (deceased) was allocated the said parcel of land vide the letter dated 15th March, 1982. 5. It is her averment that the said parcel of land was initially referred to as Plot No. 36 but upon amendment of the map in the year 2005, the said parcel of land became Plot No. 144. 6. It is also her averment that Chelule Chebonye (deceased) immediately took possession of the said parcel of land and that he later died on 24th January, 1991. 7. It is further her averment that in the year 2016, the beneficiaries of his estate filed Kericho HC Succession Cause No. 87 of 2016 and adds that the Plaintifi and one Rachel Chelangat were issued with the Grant of Letters of Administration on 30th May, 2016. 8. The Plaintifi avers that the grant was confirmed and a Certificate of Confirmation of Grant issued on 12th November, 2018. The Plaintifi adds that in the Certificate of Confirmation of Grant, the suit parcel is described as land parcel No. Molo South Block 2/11323 (Kirobon) instead of Plot No. 144. 9. The Plaintifi also avers that she has not been able to distribute the said parcel of land amongst the beneficiaries because the Defendants are in occupation. 10. The Plaintifi further avers that the said parcel of land measures twenty acres and that she is in occupation of three acres while the Defendants are in occupation of 17 acres. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 2

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11. It is the Plaintifi’s averment that the Defendants contend that they purchased portions of the suit parcel from Joseph Chelule (deceased) in the year 1994. 12. It is also the Plaintifi’s averment that the said Joseph Chelule (deceased) is her brother in law. 13. It is further the Plaintifi’s averment Joseph Chelule (deceased) did not have the capacity to dispose of the suit parcel as he was not the administrator of the estate of Chelule Chebonye (deceased). 14. She avers that the Defendants have developed the portions of the suit parcel that they are in occupation of to the detriment of the genuine beneficiaries of the estate of the deceased. 15. She also avers that Kirobon Farmers Limited have confirmed that as per their records, Chelule Chebonye (deceased) is the owner of the suit parcel. 16. The Plaintifi sets out particulars of illegality against the Defendants and prays for judgement against the Defendants for; a. A declaration that the estate of the late Chelule Chebunye (deceased) is the owner of Plot No. 144 (measuring 20 acres) and situated on land parcel Molo South Block 2/11323 (Kirobon) measuring 3972 acres. b. A declaration that the Defendants herein are trespassers and order of eviction does issue as against the Defendants. c. An order of permanent injunction restraining Defendants by themselves, their agents, servants, and/or employees from interfering with the Plaintifi’s quiet possession and use of the suit property. d. General damages for trespass. e. An order for costs. 17. The 1st to 21st Defendants filed their Statement of Defence dated 28th October, 2021. 18. The 1st to 21st Defendants deny the averments in the Plaint and state that the letters of administration produced by the Plaintifi were illegally obtained. This is because Section 71 of the Law of Succession Act and Rule 26(1) & (2) of the Probate and Administration Rules were not complied with. 19. The 1st to 21st Defendants also state that the deceased had distributed his properties prior to his demise and there was therefore no requirement to seek and obtain letters of administration. 20. The 1st to 21st Defendants further state that the Plaintifi is not living on a three-acre portion of the suit parcel. 21. The 1st to 21st Defendants state that they purchased land from Decah Chepkemoi Chelule the daughter in law of the deceased. 22. They also state that the late Chelule Chebunye was survived by the following sons and their wives; a. Joseph Chelule (deceased) married to Ester Chelule. b. Zakayo Chelule (deceased) married to Ruth Chelule. c. Samson Chelule (deceased) married to Deccah (Tecla) Chelule. d. John Chelule (deceased). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 3

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23. The 1st to 21st Defendants further state that they were given records of the family minutes (sic) and the list of registered members from Kirobon Farmers Limited. 24. They state that from the said documents, upon the demise of the original shareholder and upon his prior instructions, Deccah Chelule, John Chelule and Joseph Chelule were to be registered as shareholders. 25. They also state that Deccah Chelule was registered as a shareholder while the others disposed ofi their shares. 26. They further state that the said registration as shareholders followed prior distribution by their late father who had divided his properties among his children and each child identified their share and took possession over thirty years ago. 27. The 1st to 21st Defendants state that for the past thirty years there has not been any dispute over the suit parcel. 28. The 1st to 21st Defendants also state that it is on this basis that they purchased their plots from Deccah Chepkemoi Chelule. 29. The 1st to 21st Defendants further state that they have lived peacefully on the said parcel of land since they purchased it which parcel of land they have since developed. 30. The 1st to 21st Defendants deny all the other averments in the Plaint and seek that the Plaintifi’s suit be dismissed with costs. 31. The 22nd Defendant filed an undated Statement of Defence on 25th January, 2022. 32. She denies all the averments in the Plaint and states that she is the owner of land parcel No. Molo South/Keringet Block 2/649 (Kirobon) measuring 120 x 50 ft and adds that she purchased the said parcel of land from Robert Kipkemoi Too who is the son to Wilson Kiptoo Leitich. 33. The 22nd Defendant also states that Wilson Kiptoo Leitich was the registered owner of land parcel No. Molo South/Keringet Block 2/649 (Kirobon) which measures one acre. 34. The 22nd Defendant further states that Wilson Kiptoo Leitich purchased the said parcel of land from Chelule Chebonye (deceased). 35. She states that after purchase, Wilson Kiptoo Leitich subdivided the parcel of land into plots. He sold some of the plots and gave other plots to Robert Kipkemoi Too and Charles Kipyegon Too. 36. She also states that Robert Kipkemoi Too developed his plot by constructing a social hall and a lodging. He later sold the said plot and the developments made thereon to her (22nd Defendant) at a consideration of Kshs. 5,600,000/=. 37. She further states that she paid the purchase price in installments and took possession of the said parcel of land on 2nd January, 2019. 38. The 22nd Defendant states that the Plaintifi is a stranger to her and she prays that the Suit be dismissed with costs. 39. The Interested Party filed her Statement of Defence dated 24th May, 2023. She denies the averments in the Plaint and states that Chebunye A. Chelule died on 24th January, 1991. 40. She also states that Chebunye A. Chelule (deceased) was survived by four sons and their wives who are as follows; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 4

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a. Joseph Chelule (deceased) who was married to Esther Chelule. b. Zakayo Chelule (deceased) who was married to Ruth Chelule. c. Samson Chelule (deceased) who married to the Interested Party herein. d. John Chelule (deceased). 41. She further states that in the Letters of Administration obtained by the Plaintifi that were confirmed on 12th November, 2018, one John Chelule (deceased) was not included. 42. She states that by the time Chebunye A. Chelule (deceased) died in the year 1991, he had subdivided his properties amongst his children and they took possession. 43. She also states that each of the children of the deceased were to process their respective titles from the land buying companies in cases where titles had not been processed. 44. She further states that the deceased had subdivided his parcels of land as follows; a. Joseph and Esther Chelule – A share of the farm at Chepsir. b. Zakayo and Ruth Chelule – A share of the Sotik – Kimolwet Farm together with the entire tea plantation. c. Samson and Decca (Teclah) Chelule – A share at Keringet (sic) together with John and Joseph Chelule. d. John Chelule and Decca (Teclah) Chelule – A share at Ngata Nakuru (sic). 45. She states that the children of Chebunye A. Chelule (deceased) have been in occupation of their respective parcels of land for a period of over thirty years without having any disputes. 46. She also states that since Chebunye A. Chelule (deceased) distributed his properties before his death, the respective land buying companies were instructed to amend their registers to refiect the persons who the deceased had distributed the land to. 47. She further states that it is on this basis that the various parcels of land were subsequently registered in the respective names of the children of the deceased without obtaining Letters of Administration. 48. The Interested Party states that the register for Kirobon Farmers Limited was amended before Chebunye A. Chelule (deceased) died to refiect the name of her late husband. 49. The Interested Party also states that Chebunye A. Chelule (deceased) sold a portion of his land to third parties that are not sued herein and sold another portion to the government for the construction of the Molo – Olenguruone road. 50. The Interested Party further states that she sold her share of the parcel of land to the Defendants herein. The transactions were done over twelve years ago and there are massive structures and developments made on the said parcel of land. 51. The Interested Party denies that the Defendants bought their parcels of land from Joseph Chelule (deceased) and states that the said Joseph Chelule died in the year 1994. 52. The Interested Party also states that the suit parcel as described by the Plaintifi does not exist as it has been sub-divided into plots. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 5

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53. The Interested Party further states that the said parcel of land forms largely part of the Keringet Shopping Center. It has on it two petrol stations, a banking institution, a supermarket, a church and various family residential homes. 54. She states that since the demise of Chebunye A. Chelule, his family has not convened to discuss the need to apply for letters of administration because the deceased had distributed his parcels before his death. 55. She also states that had they agreed to file the said letters of administration, they would have included all the beneficiaries, all the properties of the deceased and sought the consent and participation of all the beneficiaries. 56. She alleges fraud and states that the Plaintifi has gifted herself 11.5 acres of the suit parcel and given the other beneficiaries 1 acre without giving an explanation. 57. She also alleges fraud on the excerpt list of members filed by the Plaintifi. She states that the at No. 144 of the said excepts, the original name was erased and in its place the name of Samwel Chelule Chebunye included. 58. She states that as at the year 2014, One Chesulut was not a director of Kirobon Farmers Company Limited and therefore the letter dated 4th September, 2014 is a forgery. 59. She also states that the 19th Defendant purchased his land from her brother and father in law and she then denies knowing the 13th, 14th and 18th Defendants. 60. The Interested Party then seeks that the Plaintifi’s suit be dismissed with costs. THE PLAINTIFF’S EVIDENCE. 61. Ruth Chelagat Chelule (Plaintifi) testified as PW1. She testified that she obtained an authority from the Court to institute the suit on behalf of Chelule Chebonye (deceased). 62. She also testified that she was the daughter-in- law of Chelule Chebonye (deceased). 63. She stated that she had filed a witness statement dated 2nd June, 2021 and prayed that the Court adopts the said statement as part of her evidence in Chief, which prayer the Court acceded to. 64. It was her evidence that she had filed a list of documents. The documents were marked and produced as follows; a. A copy of the Certificate of Confirmation of Grant as Exhibit P1. b. A copy of the extract of the register for Kirobon Farmers as Exhibit P2. c. A copy of the Certificate of Ordinary Shares dated 15th May, 1981 as Exhibit P3. d. Letter of allocation dated 15th March, 1982 as Exhibit P4. e. A copy of the Death Certificate of Chelule Chebonye as Exhibit P5. f. A copy of Grant of Letters of Administration dated 30th May, 2016 as Exhibit P6. g. Photographs of the suit parcel as Exhibit P7. h. A letter dated 4th September, 2014 written by the Chairman Kirobon Farmers Company Limited as Exhibit P8. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 6

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65. It was her testimony that she had sued twenty-three Defendants and sought orders that they be removed from the suit parcel of land as it belonged to Chelule Chebonye (deceased). 66. It was also her evidence that she did not how the said Defendants got the land. 67. It was her further evidence that Chelule Chebonye (deceased) did not subdivide his land before his death. 68. She testified that the 1st to 22nd Defendants contend that they purchased their parcels of land from Deccah Chepkemoi Chelule. 69. She also testified that Deccah Chepkemoi Chelule was the wife of Samson Chelule (deceased) who was her brother- in- law. 70. She further testified that Samson Chelule (deceased) was the son of Arap Chelule (deceased). 71. It was her evidence that she was married to Zakayo Chelule (deceased) one of the sons of the late Chelule Chebonye (deceased). 72. It was also her evidence that the 1st to 22nd Defendants state that they purchased the said parcels of land between the years 1993 and 1994. 73. It was further her evidence that at the time of purchase, Chelule Chebonye was dead and they had not commenced succession proceedings. 74. She testified that even though she could not remember the year they commenced the succession proceedings, she had the grant. 75. In her witness statement she states that Plot No. 144 is situated on land parcel No. Molo South Block 2/11323 (Kirobon). 76. The rest of her witness statement regurgitates her averments in the Plaint. 77. Upon cross examination by Counsel for the 1st to 22nd Defendants, PW1 confirmed that she was claiming Plot No. 144. 78. She also confirmed that she was claiming the entire parcel of land so that they can subdivide it. 79. She admitted that she was sure that the 1st to 22nd Defendants were in occupation of Plot No. 144. 80. She confirmed that she had an allotment letter that showed that the land belonged to the deceased. 81. She admitted that she was not the only one with an interest in the land and therefore, once she gets the land back, she will distribute it amongst the family members. 82. She confirmed that there were other members of their family who were; a. Decla Chelule. b. Joseph Chelule c. Sarah Tanui 83. She admitted that the Letters of Confirmation of Grant (Exhibit P1) had a schedule of distribution of assets. 84. She stated that she was not aware that the Defendants purchased the said parcel of land from Decca and confirmed that the said Decca will get a share of the suit parcel. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 7

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85. She admitted that she was in occupation of three acres of the suit parcel which she was given to use as she awaits the decision of this Court. 86. She confirmed that it was the District Oficer who gave her the said portion of land. 87. She also confirmed that she was the only family member living in Keringet and explained that the other family members lived in Ngata. 88. Upon cross-examination by Counsel for the 22nd Defendant, she admitted that Chelule Chebonye (deceased) was her father since he was her husband’s father. 89. She confirmed that Chelule Chebonye (deceased) had eight children who are now deceased. 90. She reiterated that she was married to Zakayo Chelule (deceased) and that she lived on three acres of the suit parcel. 91. She stated that the suit parcel belonged to the estate of Chelule Chebonye (deceased) and was located at Keringet. 92. She confirmed that the present suit relates to the land located at Keringet and that she had produced documents in support of her case. 93. She also confirmed that Plot No. 144 only had an allotment letter and it did not have a title deed. 94. She further confirmed that initially Plot No. 144 was referred to as Plot No. 36. 95. She admitted that Chebonye Chelule died in the year 1991 and that in the year 2016, they commenced succession proceedings. 96. She also admitted that at the time they were commencing succession proceedings, they were not aware that the said parcel of land had problems. 97. She further admitted that the children of Chebonye Chelule (deceased) did not go to Court. 98. She confirmed that she was given a Grant of Letters of Administration jointly with Rachael Chelangat the daughter of Chebonye Chelule who was also deceased. 99. She also confirmed that when she filed the present suit, Rachael Chelangat was alive even though she did not sign the Court documents. 100. She stated that the late Chelule Chebonye had one wife and eight sons. The names of the sons (sic) were as follows; a. Joseph Chelule b. Zakayo Chelule c. Rebecca Chepkorir d. Sarah Chepkemoi. e. Sophia Chepkorir. f. Rachael Chelangat. g. Samson Chelule. h. John Chelule https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 8

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101. She reiterated that all the sons of Chelule Chebonye (deceased) were deceased and that she was the wife of Zakayo Chelule (deceased). 102. She confirmed that Joseph was the husband of Esther Chelule while Samson was the husband of Decca Chelule. 103. She also confirmed that John was the husband of Alice Chelule. 104. She further confirmed that Esther, Decca and Alice were alive and added that they live in Ngata. 105. She stated that the family of Chebonye Chelule (deceased) sat down and agreed that she files the present suit. 106. She admitted that she was not calling any other member of her family to give evidence in the present matter. 107. When she was referred to the Certificate of Confirmation of Grant produced Exhibit P1, she admitted that the said grant was only issued in her name because Rachael was deceased. 108. She admitted that she did not have the death certificates of the other children of Chebonye Chelule (deceased). 109. She also admitted that the Certificate of Confirmation of Grant was with respect to land parcel No. Molo South Block 2/11323 Kirobon and not Plot No. 144. 110. She further admitted that the said parcel of land measures twenty acres and confirmed that she did not know why the Certificate of Confirmation of Grant stated that the said parcel of land measures 17 acres. 111. She stated that the Court gave her 8 ½ acres of the suit parcel and admitted that the Surveyor has not been to the suit parcel because she first needed to have the Defendants evicted. 112. She also admitted that she did not have Letters of Administration Ad Litem. 113. She further admitted that there were twenty-six people on the land and confirmed that she did not know the 22nd Defendant. 114. She also confirmed that she did not know how long the 22nd Defendant had been in occupation of the suit parcel. 115. She further confirmed that before the death of Chelule Chebonye, there was no one on the suit parcel. 116. She admitted that when she got to the land, she found people living on it. 117. She also admitted that at the time the suit parcel was being developed she was living on a parcel of land at Kimolwet which parcel of land also belonged to the deceased. 118. She further admitted that the deceased lived in Ngata and that she was living at Kimolwet at the time of his death. 119. She stated that the deceased lived in Ngata for ten years and reiterated that the parcel of land she is claiming is situated in Keringet. 120. She admitted that she neither had a map nor a Certificate of Oficial Search for the suit land. 121. She confirmed that after she found people living on the land at Keringet she went to Court and the police and admitted that she did not have the OB number. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 9

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122. She also confirmed that the Defendants filed a case in Kericho before filing another suit in Molo and added that after the Molo suit was concluded, they filed a suit in the High Court. 123. She reiterated that the District Oficer allowed her to take possession of the three acres of land at Keringet. 124. She stated that it was not true that the 22nd Defendant purchased land from Chelule Chebonye (deceased) and further stated that he never sold the suit parcel. 125. PW1 denied that she filed her claim late and also denied that she filed the suit without the authority of their family. 126. She admitted that they did not have the title deed for the suit parcel but they were following up on it. 127. Upon re-examination, she stated that Rachael Chelang’at (deceased) was her co-administrator but she could not remember when she died. 128. She reiterated that her claim was for land parcel No. 144 even though the documents she produced in Court referred to Plot No. 36. 129. She stated that initially the suit property was known as Plot No. 36 and after a survey was done, the number changed to Plot No. 144. 130. She also stated that the said parcel of land initially belonged to Kirobon Farmers Company Limited and from the documents produced in Court, the deceased was given Plot No. 144. 131. She further stated that the parcel of land in Ngata belonged to the deceased and that he had several other parcels of land. 132. She stated that in her witness statement she explained the nexus between Plot No. 36 and Plot No. 144 and reiterated that the Defendants were in occupation of the suit parcel. 133. She also stated that Plot No. 144 and land parcel No. Molo South Block 2/11323 referred to same parcel of land. 134. The Plaintifi’s case was then closed. THE 1ST TO 22ND DEFENDANTS EVIDENCE. 135. William Kiprotich Koskei ( 8th Defendant) testified as DW1. 136. He testified that the Plaintifi was claiming Plot No. 144. 137. He also testified that the 1st to 21st Defendants purchased land parcel No. Molo South Block 2/17 from Tecla Chelule on diverse dates in the year 2004. 138. He further testified that the name of Tecla Chelule was in the list of members of Keringet. 139. It was his evidence that he purchased his parcel of land on 20th August, 2004 and that he did not know the exact dates the other Defendants purchased their parcels of land. 140. He testified that it was the Plaintifi’s evidence that the land belonged to Chelule Chebonye (deceased) and yet it belonged to Samson Chelule (deceased) who was Tecla Chelule’s husband. 141. It was further his evidence that Chelule Chebonye (deceased) had other parcels of land in Ngata, Keringet, Chepsir and Kimolwet. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 10

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142. He testified that the Plaintifi was the daughter-in-law of the late Chelule Chebonye. 143. He also testified that Tecla was entitled to land in Keringet and Ngata as she was the late Chelule Chebunye’s daughter-in- law. 144. He further testified that Tecla’s husband was gifted the said parcel of land when Chelule Chebonye (deceased) was still alive. 145. It was his evidence that the Court should dismiss the Plaintifi’s suit as Tecla was a beneficiary of the Keringet Property. 146. It was also his evidence that they had filed a List of documents that he wished the Court to rely on as part of his evidence. 147. He produced copies of the sale agreements between Decca and the following Defendants; a. Wilson Kipngetich b. William Kiprotich Koskei c. Alice Chepkurui Talam d. Philip Kipkoech Too e. Betty Chepkemoi Samoei f. Rose Chelangat Tesut. 148. He produced copies of the said agreements as Exhibits D1(a) to (f). 149. He also produced a copy of an excerpt of the list of members of Kirobon Farmers which he testified was issued by the Directors of Kirobon as Exhibit D2. 150. Upon cross examination by Counsel for the 22nd Defendant, he admitted that he knew Samson Chelule (deceased) as he was the son of Chebonye Chelule (deceased) and that he had purchased land from them. 151. He reiterated that Tecla Chelule was the wife of Samson Chelule (deceased). 152. He stated that Decca acquired the land from her husband and sold it to him. 153. He confirmed that he purchased a portion of Plot No. 17 from Decca measuring three quarters of an acre. Plot No. 17 measured twenty acres. 154. He also confirmed that Decca did not have a title deed for Plot No. 17 and reiterated that they purchased the said parcel of land in the year 2004. 155. He further confirmed that he was in occupation of the three quarters of an acre parcel of land that he had purchased and explained that he fenced the land and cultivated it. 156. He admitted that the said Plot does not have a title deed. 157. He reiterated that he knew Chelule Chebonye (deceased) and that he had four sons who were deceased. He stated their names together with the names of their wives as follows; a. Joseph Chelule (deceased) husband to Esther Chelule b. Zakayo Chelule (deceased) husband to Ruth Chelule https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 11

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c. Samson Chelule (deceased) husband to Deccah Chelule d. John Chelule (deceased). 158. He confirmed that he did not know if John Chelule (deceased) was married. 159. He also confirmed that he knew the Plaintifi as she was the wife of Zakayo Chelule (deceased). He further confirmed that the Plaintifi filed the present suit seeking orders in respect of Plot No. 144. 160. He admitted that he did not know the acreage of Plot No. 144 and neither was he aware whether it had a title deed. 161. He stated that Plot No. 17 had no relationship with Plot No. 144 and that the Plaintifi had not shown them the title deed for Plot No. 144. 162. He admitted that he had been sued over land parcel No. Molo South Keringet Block 2/11323 (Kirobon) and confirmed that he knew nothing about the said parcel of land. 163. He also confirmed that he did not know its acreage and neither had he seen its title deed. 164. He further confirmed that the Plaintifi did not sell to him any parcel of land. 165. When he was referred to the Certificate of Confirmation of Grant produced as Exhibit P1, he stated that he did not know that that was the strength of the Plaintifi’s suit. 166. He stated that if the Plaintifi was the administrator of the estate of Chelule Chebonye (deceased) then his evidence was that the Defendants bought land before the grant was confirmed. 167. He confirmed that the Certificate of Confirmation of Grant showed that the Plaintifi together with Esther, Decca and Sarah Tanui had been given land parcel No. Molo South Keringet Block 2/11323 (Kirobon). 168. He also confirmed that the said parcel of land measured twenty acres. He admitted that he knew Decca and stated that the other persons were wives of the sons of Chelule Chebonye (deceased). 169. He confirmed that the Plaint stated that land parcel No. 11323 measured 3972 acres but the Certificate of Confirmation of Grant stated that the said parcel of land measured twenty acres. 170. He also confirmed that the Plaintifi wanted them to be evicted from the suit parcel but they should not be evicted because they are purchasers. 171. Upon cross examination by Counsel for the Plaintifi, he reiterated that he was testifying on behalf of 1st to 21st Defendants. 172. He also reiterated that he was the 8th Defendant and admitted that he did not have a letter of authority from the 1st to 21st Defendants. 173. He reiterated that Plot No. 17 measures twenty acres and it belonged to Chelule Chebonye (deceased). 174. He also reiterated that the deceased had other parcels of land at Kimolwet, Chepsir, Ngata and Keringet. He confirmed that the only land the deceased owned in Keringet measured twenty acres. 175. He admitted that Chelule Chebonye (deceased) got his parcel of land from Kirobon Farmers. 176. He reiterated that he purchased his parcel of land from Decca who was the daughter-in- law of Chebonye Chelule (deceased). He also reiterated that Decca got the said parcel of land from her deceased husband one Samson Chelule. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 12

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177. He stated that before he purchased the said parcel of land he conducted investigations that revealed that Samson Chelule (deceased) was given the land by his father. 178. He admitted that he did not know the date when Samson Chelule (deceased) was given the said parcel of land and neither did he know when Chebonye Chelule died. 179. He stated that Decca and Joseph Chelule (deceased) were the beneficiaries of the said parcel of land which information he got from the minutes of a meeting. 180. He admitted that he had nothing else apart from the minutes. 181. He stated that the Plaintifi’s husband was given land in Keringet and Ngata but confirmed that he had no documents in support of his assertions. 182. He reiterated that he purchased his parcel of land in the year 2004. 183. He admitted that the sale agreement stated that Decca was the owner of the land and added that he inferred her ownership from her occupation of the land. 184. He also admitted that Decca did not show them her title deed and neither did she show them the share certificate issued by Kirobon Farmers. 185. He further admitted that Decca did not show them any will, deed of transfer or any written document to show ownership. 186. He was referred to the extract of the list of members of Kirobon Farmers Company Limited produced as Exhibit D2 and he confirmed that it was a list of members of Kirobon Farmers. 187. He also admitted that the said list was given to him by the directors of Kirobon Farmers. He further admitted that the said document did not have a seal, a stamp or a signature from Kirobon Farmers. 188. He confirmed that the said document did not also have a certification stamp that shows that it was issued by Kirobon Farmers. 189. He admitted that the Plaintifi stated that Plot No. 144 was within land parcel No. Mau South Block 2/11323 which parcel of land measured 3972 acres. He also admitted that he had no knowledge of this. 190. He further admitted that he was shown a copy of a grant and confirmed that he did not know if Decca instituted succession proceedings. 191. He stated that his evidence was that the late Chebonye Chelule distributed his land when he was alive and then admitted that he was not present when that happened. 192. He also stated that he was born in the year 1968 and before he purchased the three quarter of an acre plot, he was living in Chesirikwa. 193. He admitted that before he purchased the said parcel of land, he did not know the Chelule family and he only got to know them in the year 2004. 194. He also admitted that in his witness statement, he gave a history of the Chelule family which history was narrated to him and he confirmed that he could not tell whether it was true or false. 195. Upon re-examination he reiterated that he did not have an authority from his co-Defendants to testify on their behalf. 196. He also stated that the Plaintifi was not given land at Keringet. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 13

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197. He reiterated that Decca was the owner of the land and that she got it from her deceased husband who got it from Chebonye Chelule (deceased). 198. The 1st to 21st Defendant’s case was then closed. The 22Nd Defendant’s Evidence. 199. Sarah Koech testified as DW2. It was her evidence that she did not know Ruth Chelule and neither did she know Chelule Chebonye (deceased). 200. She stated that she filed a witness statement dated 25th January, 2022 and prayed that the Court adopts the said statement as part of her evidence-in-chief, which prayer the Court acceded to. 201. It was her evidence that she did not know Plot No. 144 and land parcel No. Molo South Block 2/11323 Kirobon. 202. It was also her evidence that she was the registered owner of land parcel No. Molo South Keringet Block 2/854. 203. It was further her evidence that the Plaintifi was not claiming her land. 204. She testified that she purchased her parcel of land from Robert Kipkemoi for a consideration of Kshs. 5.8 million. She went on to state that began paying the purchase price in the year 2018 and completed payment in the year 2019. 205. She also testified that she had a sale agreement dated 3rd February, 2018 which she produced as Exhibit D2 (1). 206. She further testified that the payment of the purchase price was acknowledged by the vendor vide acknowledgement receipts dated 2nd January, 2019 and 10th August, 2018. She produced copies of the said documents as Exhibits D2(2) and Exhibit D2 (3). 207. She produced a copy of the title deed for land parcel No. Molo South Keringet Block 2/854 as Exhibit D2 (4). 208. It was her evidence that her parcel of land measured 120 by 50 feet and she added that she has been in occupation of the said parcel since January, 2019. 209. It was also her evidence that she has made developments on the said parcel and that the said developments were both permanent and temporary. 210. It was further her evidence that she had three shops, nine lodging rooms and a social hall on the said parcel of land. 211. She testified that since she took possession of the said parcel, there has been no interference. 212. She also testified that she bought the said parcel of land together with the developments made thereon. 213. She further testified that the Plaintifi did not seek for the cancellation of her title. 214. In her witness statement, she denies the averments in the Plaint and stated that her parcel of land was one of the resultant subdivisions of land parcel No. Molo South/Keringet Block 2/649 (Kirobon) that was registered in the name of Wilson Kiptoo Leitich. 215. She also states that Wilson Kiptoo Leitich purchased the said parcel of land from Chelule Chebonye (deceased). He (Wilson Kiptoo Leitich) took possession of the said parcel of land and subdivided it https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 14

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into plots and gave one of the said plots to Robert Kipkemoi Too. The rest of her witness statement reiterates the contents of her Statement of Defence. 216. Upon cross-examination by Counsel for the Plaintifi she reiterated that she purchased her parcel of land from Robert Too in the year 2018 and added that he executed the agreement for sale. 217. She admitted that the title was in the name of his (Robert Too) father one Wilson Leitoo Letich who was still alive as at the time of purchase. 218. She reiterated that her parcel of land was one of the resultant subdivisions of land parcel No. Molo South Keringet Block 2/649 that was registered in the name of Wilson Leitich. 219. When she was referred to the sale agreement dated 3rd February, 2018 produced as Exhibit D2 (1), she admitted that the agreement referred to land parcel No. 694 instead of parcel No. 649 and stated that it was an error. 220. She reiterated that the ownership documents in her possession were with respect to land parcel No. Molo South Keringet Block 2/854 which was the parcel of land she was in occupation of. 221. She confirmed that before she purchased the said parcel of land, she checked the records of Kirobon Farmers to see whose name was listed. 222. She explained that the said records were in a book and that the said book had a list of names of the members of Kirobon Farmers and the parcels of land they owned. 223. She confirmed that at the time of sale, Wilson had not picked up his title from the Lands ofice. 224. She admitted that in her statement, she stated that Wilson had purchased one acre of land from Chelule Chebonye (deceased). 225. She then confirmed that her parcel of land is a portion of the one acre of land purchased by Wilson from Chelule (deceased). 226. She stated that it was after the present suit was filed that she learnt about the said history because the records at Kirobon Farmers Limited showed that Wilson was the owner. 227. She admitted that she did not see any documents showing that Wilson purchased his land from Chelule (deceased). 228. She confirmed that Wilson Kiptoo Leitich did not sign the agreement and he only signed the consent to transfer at the time she was acquiring the title. 229. She also confirmed that the parcel of land she owned was in Keringet market/town. 230. She further confirmed that the Safaricom Mast was not near her parcel of land and even though she came from Keringet, she did not know the Plaintifi. 231. Robert Kipkemoi Too testified as DW3. It was his evidence that he lived in Keringet and stated that she did not know the Plaintifi. 232. It was also his evidence that he knew Chelule Chebonye (deceased) in the year 1990. 233. It was further his evidence that Chelule Chebonye (deceased) had a parcel of land in Kirobon and he sold an acre of the said land to his father one Wilson Leitich Kiptoo. 234. He testified that he did not know the purchase price but what he knew was that the sale was done in the year 1990. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 15

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235. He also testified that he did not have the sale agreement because the said parcel of land was sold over thirty years ago and added that upon purchase, his father established a saw mill on the land and subdivided it into eight plots. 236. He reiterated that the said parcel of land was purchased directly from Chebonye (deceased) who had a title deed. 237. He testified from the eight plots, his father gave him one plot and he (his father) gave his brother another plot. 238. He also testified that he built four shops, eight residential houses and a social hall on his plot and added that the said developments were permanent. 239. It was his evidence that he used the said plot for a period of thirteen years before selling it to Sara Kerich. 240. It was also his evidence that they entered into a land sale agreement dated 3rd February, 2018. 241. It was further his evidence that he connected the 22nd Defendant to his father and the title deed was processed in her name. 242. He testified that the said parcel of land is now registered as Molo South Block 2/854 Kirobon. 243. He also testified that the sale agreement referred to Plot No. 694, the acknowledgements also referred to Plot No. 694 but the title deed was for land parcel No. 854. 244. He further testified that the numbers were difierent because the parcel of land had not been subdivided. 245. It was his evidence that his father was in occupation of the said parcel of land for over thirty years after he purchase it. 246. He reiterated that he used the said parcel of land for a period of thirteen years and testified that there was no interference on either use and/or occupation of the land. 247. DW3 also stated that he filed a witness statement dated 25th January, 2022 and prayed that the said statement be adopted as part of his evidence-in- chief which prayer the Court acceded to. 248. In his witness statement he states that his father had peaceful possession of the parcel of land he purchased from Chelule Chebunye (deceased). 249. He also states that he only knows the 21st Defendant as he purchased a plot from his brother Charles Too. 250. Upon cross examination by Counsel for the Plaintifi, he confirmed that his father purchased one acre of land from Chelule Chebonye (deceased) in the year 1990. 251. He admitted that he did not see the land sale agreement that they entered into. 252. He reiterated that he came from Keringet and that he knew Chelule Chebonye (deceased) but he did not know any of his children. 253. He stated that the parcel of land that his father purchased was land parcel No. Molo South Block 2/649. 254. He admitted that the land sale agreement referred to Plot No. 694 and clarified that this was the plot that he sold to the 22nd Defendant. 255. He also admitted that he did not know the current land parcel number of the plot he sold to the 22nd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 16

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256. He further admitted that at the time he was selling Plot No. 694, the said parcel of land was registered in his father’s name. 257. He admitted that his father did not sign the sale agreement. 258. The 22nd Defendant’s case was then closed. Issues For Determination. 259. The Plaintifi filed her submissions on 13th March, 2024 while the Defendants and the Interested Party did not file any submissions. 260. The Plaintifi submits on the following issues; a. Whether the Interested Party had capacity to enter into contract for the sale of the suit property. b. Whether the Plaintifis (sic) have proved their case on a balance of probabilities. c. Whether the Defendants dispensed with their duty to prove what they alleged in the case. 261. On the first issue, the Plaintifi submits that the suit parcel has been properly identified. 262. The Plaintifi also submits that the documents she produced as Exhibits P2, P4 and P8 show that Chelule Chebonye (deceased) was a shareholder of Kirobon Farmers Limited and was allocated Plot No. 144. 263. The Plaintifi further submits that Plot No. 144 measured twenty acres and that the 8th Defendant identified the said parcel of land and confirmed that it measured twenty acres. 264. It is the Plaintifi’s submissions that the 8th Defendant also confirmed that the said parcel of land belonged to the deceased and that the deceased had given it to the Interested Party. 265. It is also the Plaintifi’s submissions that the 8th Defendant’s evidence was to the efiect that the 1st to 21st Defendants were in occupation of the suit parcel. 266. It is further the Plaintifi’s submissions that given the evidence of the 8th Defendant, the suit parcel has been properly identified. 267. The Plaintifi submits that the 1st to 21st Defendant’s evidence was that they purchased their parcels of land from the Interested Party who was a beneficial owner of the suit property. 268. The Plaintifi also submits that the said transactions were done before letters of administration were issued which fact was confirmed by the 8th Defendant during cross examination. 269. The Plaintifi further submits that a person having beneficial interest in land cannot transact on it until a grant is issued. 270. The Plaintifi relies on the judicial decision of In the matter of the Estate of M’ Ajogi M’Ikiugu alias Ikiugu Ajogi (deceased) (citation not given) and submits that no person had the capacity to deal with the suit parcel before letters of administration were issued. 271. The Plaintifi also submits that the Defendants entered the suit parcel before the estate of the deceased was administered. 272. The Plaintifi relies on the judicial decisions of Peter Kim Baker & 2 Others v Sidi Katana Bongo & another [2019] eKLR, Virginia Mwari Thuranira v Purity Nkirote Thuranira [2017] eKLR and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 17

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Wafula (Suing as the Personal and Legal Representative of the Estate of the Late Henry Wafula Masibayi Deceased) v Masinde [2023] KEELC 18897 (KLR) in support of her submissions. 273. It is the Plaintifi’s submissions that even though the Defendants contend that the Interested Party was gifted the suit parcel by the deceased, no evidence in support of the said contention was availed. 274. With regard to the second issue, the Plaintifi submits that the deceased owned the suit parcel since 15th March, 1982 till 24th January, 1991 when he died. 275. The Plaintifi also submits that the said parcel of land was not transferred by Chelule Chebonye (deceased) to any other person. 276. The Plaintifi further submits that she was given the grant of letters of administration with respect to the estate of the deceased vide Nakuru HC Succession Cause No. 87 of 2016. 277. The Plaintifi reiterates that at the time the Defendants allege to have transacted over the land, there was no grant of letters of administration and therefore no one had the capacity to sell it. 278. The Plaintifi therefore submits that the Defendants are trespassers on the suit parcel and relies on Section 3(1) of Trespass Act in support of her submissions. 279. On the third issue, the Plaintifi submits that the Defendants allege that they purchased their parcels of land from the Interested Party but they failed to call her to give evidence. 280. The Plaintifi also submits that he who alleges must prove and therefore the Defendants failed to prove their assertions. 281. The Plaintifi submits that the Defendants should have taken steps to prove the validity of the documents that they were relying on. 282. The Plaintifi relies on Section 35(1)(b) of the Evidence Act, the judicial decision of Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR and submits that the maker of a document should produce it in Court and therefore the Defendants should not be exempted from the said rule. 283. The Plaintifi sets out the 22nd Defendant’s averments in her Statement of Defence and submits that she (22nd Defendant) admits that her parcel of land originally belonged to Chelule Chebonye (deceased). 284. The Plaintifi submits that the said assertion confirms that the suit parcel initially belonged to Chelule Chebonye (deceased) and it therefore belongs to his estate. 285. The Plaintifi concludes her submissions by stating that a void transaction is an incurable nullity and therefore the contracts entered into by the Defendants were void. 286. The Plaintifi relies on the judicial decision of Macfoy v United Africa Co. Ltd [1961] 3 all er 1169 at pg. 1172 in support of her submissions. Analysis And Determination. 287. After considering the pleadings, the evidence adduced by the Plaintifi and Defendants together with the Plaintifi’s submissions, it is my view that the following issues arise for determination; a. Whether Plot No. 144 situated on land parcel No. Molo South Block 2/11323 (Kirobon) belongs to the estate of Chelule Chebonye (deceased). b. Whether the Defendants are trespassers on Plot No. 144 situated on land parcel No. Molo South Block 2/11323 (Kirobon). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 18

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c. Whether the prayers sought in the Plaint should be granted. d. Who should bear costs of the suit. A. Whether Plot No. 144 situated on land parcel No. Molo South Block 2/11323 (Kirobon) belongs to the estate of Chelule Chebonye (deceased). 288. It is the Plaintifi’s case that her father in law one Chelule Chebonye (deceased) was allocated Plot No. 144 by Kirobon Farmers Limited. 289. It is also the Plaintifi’s case that succession proceedings with respect to his estate were conducted in the year 2016 when she filed Nakuru HC Succession Cause No. 87 of 2016. 290. It is further the Plaintifi’s case that she has been unable to implement the confirmed grant because the Defendants are in occupation of the suit parcel. 291. The Plaintifi therefore seeks that the Defendants be declared to be trespassers and they be evicted from the said parcel of land. 292. The Plaintifi produced a copy of the Certificate of Confirmation of Grant issued in Nakuru HC Succession Cause No. 87 of 2016 In the matter of the estate of Chelule Chebunye (deceased) as Exhibit P1. 293. The Certificate of Confirmation of Grant is issued to Ruth Chelang’at Chelule on 12th November, 2018. The only asset in its schedule is land parcel No. Molo South Block 2/11323 (Kirobon). 294. A copy of an extract of the register for Kirobon Farmers was produced as Exhibit P2. At No. 144, the name of Samwel Chelule Chebunye of ID No. 7200091 is stated. Alongside his name is 5.987 Ha. The document is signed on 7th April, 2018 and it has a stamp of Kirobon Farmers Company Limited. 295. A copy of a Certificate of Ordinary Shares was produced as Exhibit P3. It is issued by Kirobon Farmers Limited to Samwel Arap Chebunye of P.O Box 1517 Nakuru on 15th May, 1981 for two hundred and fifty ordinary shares. 296. A copy of a letter dated 15th March, 1982 was produced as Exhibit P4. The subject of the letter is allocation of plots. The letter is addressed to Chelule A. Chebunye. It states that subject to the allocation of plots exercise conducted on 29th December, 1981, Chelule A. Chebunye was allocated Plot No. 36 which was within LR No. 11323 measuring twenty acres. It is signed by S.K Menjo the Company Secretary. The letter bears the stamp of Kirobon Farmers Ltd P.O Box 1979 Nakuru. 297. A copy of Certificate of Death No. 217525 was produced as Exhibit P5. It states that Chelule Chebunye died on 24th January, 1991. The death was registered on 4th February, 1991 and on the same date the Certificate of Death was issued. 298. A copy of a Grant of Letters of Administration was produced as Exhibit P5. It is issued in Nakuru HC Succession Cause No. 87 of 2016 In the matter of the Estate of Chelule Chebunye to Ruth Chelangat Chelule and Rachael Chelang’at on 30th May, 2016. 299. Three coloured photographs were produced as Exhibit P6. One photograph is of a petrol station while the other two photographs appear to be of construction sites. 300. A copy of a letter dated 4th September, 2014 was produced as Exhibit P8. It is written by Benjamin Chelulut the Chairman of Kirobon Farmers Limited. It states that Chelule A. Chebunye (sic) was allocated a parcel of land at Keringet on LR No. 11323/144. The letter also states that the said parcel https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 19

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of land is yet to be divided amongst the siblings (sic) as they have not brought letters of administration to the company. 301. The 1st to 21st Defendants case on the other hand is that they purchased portions of land parcel No. Molo South Keringet Block 2/17 on diverse dates in the year 2004 from Tecla Chelule. 302. It is also their case that the said parcel of land belonged to Samson Chelule (deceased) who was Tecla Chelule’s husband and the son of Chelule Chebonye (deceased). 303. It is further their case that Samson Chelule (deceased) was gifted the said property by Chelule Chebonye (deceased) before his death. 304. In support of their case they produced a copy of a sale agreement between Decca Chepkemoi Chelule (vendor) and Wilson Kipngetich Ronoid (sic) (Purchaser) dated 21st August, 2006 (Exhibit D1 (a). It is for purchase of a portion of Plot No. 17 Kirobon Farmers Company Limited measuring 50ft x 100ft for a consideration of Kshs. 75,000/=. The agreement is signed by Deccah Chepkemoi Chelule, Wilson Kipngetich Rono and Wesley Kipkorir Ngetich. The agreement is drafted by W.R Kiprono Advocate. 305. A copy of a Sale agreement dated 20th August, 2004 between Deccah Chepkemoi Chelule (vendor) and William Kiprotich Koskei (purchaser) was produced as Exhibit D1(b). It states that the vendor is a beneficial owner of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 Kirobon (sic) which measures twenty acres. 306. The agreement also states that it is for sale of ¾ of an acre portion of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (Kirobon) (sic) for a consideration of Kshs. 420,000/=. The agreement is drafted by Kipchenger & Co. Advocates and signed by the purchaser and vendor. 307. A copy of Sale Agreement dated 16th September, 2003 was produced as Exhibit D1(c). The agreement is between Decca Chepkemoi Chelule (vendor) and Alice Chepkirui Talam (purchaser). It states that the vendor is a beneficial owner of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 Kirobon (sic) which measures twenty acres. 308. The agreement also states that the purchaser is buying a 50 x 100 ft portion of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (sic) at a consideration of Kshs. 80,000/=. The agreement is drafted by Kipchenger & Co. Advocates and signed by the vendor and purchaser. It is also signed by Joel Loibon and Isaac Kipkoech Langat as witnesses. 309. A copy of a sale agreement dated 16th May, 2003 between Decca Chepkemoi Chelule (vendor) and Philiph Kipkoech Too (purchaser) was produced as Exhibit D1(d). It states that the vendor is a beneficial owner of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 Kirobon (sic) which measures twenty acres. 310. The agreement is for the purchase of a portion of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (sic) measuring 50 X 100 ft for a consideration of Kshs. 80,000/=. The agreement is drafted by Kipchenger & Co. Advocates and signed by both the vendor and the purchaser. 311. A copy an agreement dated 10th October, 2008 between Deccah Chepkemoi Chelule (vendor) and Betty Chepkemoi Samoei (purchaser) was produced as Exhibit D1(e). The agreement states that the vendor is a beneficial owner of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 Kirobon (sic) which measures twenty acres. 312. The agreement is for the sale of a portion of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (Kirobon) (sic) measuring 50 x 100 ft for a consideration of Kshs. 80,000/=. The agreement is https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 20

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signed by the vendor, purchaser and a witness one Alice Chepkirui Talam. The agreement is drafted by Kipchenger & Co. Advocates. 313. A copy of an agreement dated 2nd June, 2015 between Deccah Chepkemoi Chelule (vendor) and Rose Chelangat Tesot (purchaser) was produced as Exhibit D1(f). The agreement states that the vendor is the owner of land parcel No. Molo South/Keringet Block 2/17 (Kirobon). 314. The agreement also states that the vendor had sold a portion of the said parcel of land to the purchaser’s husband one Paul Kipsang A. Tesot (deceased) but the agreement could not be traced. The agreement further states that land parcel No. Molo South/Keringet Block 2/17 (Kirobon) was sold at a purchase price of Kshs. 1,000,000/=. The agreement is drafted by Ochieng Gai & Co. Advocates and signed by the vendor, purchaser and three witnesses. The vendor’s witnesses are Joshua Kipsigei Arap Sigila, Benard Kipketer Ngetich while the Purchaser’s witness is Beatrice Chesant Tesot. 315. A copy of a list was produced as Exhibit D1(2). At No. 17 there is the name of Deccah Chepkemei Chelule ID No. 42900463. Her address is stated to be 7412 Nakuru. The 1st to 21st Defendants contend that the said list was of members of Kirobon Farmers Limited. 316. The 22nd Defendant’s case on the other hand is that she purchased land parcel No. Molo South Keringet Block 2/854 from Robert Kipkemoi for a consideration of Kshs. 5,600,000/= in the year 2018. 317. It is also her case that she purchased the said parcel of land together with the developments made thereon. 318. It is further her case that the parcel of land she purchased was a portion of land parcel No. Molo South Keringet Block 2/649 that was registered in the name of Wilson Leitoo Letich the father of Robert Kipkemoi. 319. It was the 22nd Defendant’s case that Wilson Leitoo Letich had purchased land parcel No. Molo South Keringet Block 2/649 from Chelule Chebonye (deceased). 320. In support of her case, the 22nd Defendant produced a copy of a land sale agreement entered into between Too Kipkemoi Robert (vendor) and Sarah Chepkoech Koech & Clare Chemutai (purchasers) as Exhibit D2 (1). It is for the purchase of half a plot of land parcel No. 694 at a consideration of Kshs. 2,700,000/=. The agreement is signed by the vendor and his three witnesses who are James Kiplangat Kemei, Pricilla Chelangat and Charles Too. 321. The agreement is also signed by the purchasers and their witnesses who are Peter Kiptanui Langat, Daniel Kiprotich Langat and Cynthia Cherotich. The agreement is further signed by Nicholas Kering the Chief Keringet Location on 3rd February, 2018. 322. A copy of an acknowledgement dated 2nd January, 2019 was produced as Exhibit D2 (2). It states that Too Kipkemoi Robert received Kshs. 100,000/= from Sarah Chepkoech Koech as part of the purchase price for land parcel No. Molo South/Keringet/Block 2/694 (Kirobon). The balance of kshs. 700,000/ = was to be paid before 7th February, 2019. The acknowledgement is drafted by Omwenyo & Company Advocates. It is signed by Sarah and Robert. 323. A copy of an acknowledgement dated 10th August, 2018 was produced as Exhibit D2 (3). It states that Too Kipkemoi Robert received Kshs. 500,000/= from Sarah Chepkoech Koech as payment of the balance of the purchase price for land parcel No. Molo South/Keringet/Block 2/694 (Kirobon). It is drafted by Omwenyo & Company Advocates and signed by Sarah, Robert and a witness one Cynthia Cherotich. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 21

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324. A copy of a title deed for land parcel No. Molo South/ Keringet Block 2/854 (Kirobon) as Exhibit D2 (4). It is issued to Sarah Chepkoech Koech on 15th August, 2023. The said parcel of land measures 0.070 Ha. 325. It is not disputed that Chelule Chebonye (deceased) was a member of Kirobon Farmers Company Limited. 326. It is also not disputed that Chelule Chebunye (deceased) was allocated land by the said company. What is disputed is: a. The description of the said parcel of land and b. Whether Chelule Chebunye (deceased) sold and/or distributed the said land among his family members before his death. 327. In the Plaint, the Plaintifi avers that Chelule Chebunye (deceased) was allocated Plot No. 36. 328. The Plaintifi also avers that the map was amended in the year 2005 and the parcel number changed to Plot No. 144. 329. This is the parcel of land that the Plaintifi contends that the Defendants are in occupation of. 330. Under prayer No. 1 in the Plaint, the Plaintifi seeks that the Court makes a declaration that Chelule Chebunye (deceased) is the owner of Plot No. 144 measuring twenty acres situated on land parcel No. Molo South Block 2/11323 (Kirobon). 331. The 1st to 21st Defendants on the other hand contend that they purchased their parcels of land from Deccah Chepkemoi Chelule (Interested Party) who was the daughter in law of Chelule Chebunye (deceased). 332. The 1st to 21st Defendants produced copies of sale agreements entered between some of them and Decca Chepkemoi Chelule which show that they purchased portions of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (Kirobon) (sic). 333. The 22nd Defendant produced a copy of a title deed for land parcel No. Molo South/ Keringet Block 2/854 (Kirobon) which is alleged to be one of the resultant subdivisions of land parcel No. Molo South Keringet Block 2/649. 334. The 22nd Defendant contends that Wilson Leitoo Letich had purchased land parcel No. Molo South Keringet Block 2/649 from Chelule Chebunye (deceased). 335. In the Plaint, the Plaintifi contends that Chelule Chebunye (deceased) was allocated Plot No. 36 by Kirobon Farmers Company Limited. 336. In support of this contention, the Plaintifi produced a copy of a letter dated 15th March, 1982 (Exhibit P4) which shows that Chelule Chebunye was allocated Plot No. 36. As per the said letter, Plot No. 36 was a portion of LR No. 11323 and it measured twenty acres. The said letter has a stamp of Kirobon Farmers Company Limited. 337. In the Plaint, the Plaintifi also contends that the map was amended and Plot No. 36 given a new number which was Plot No. 144. 338. The Plaintifi produced a copy of an extract of the list of members of Kirobon Farmers as Exhibit P2. It is signed by a director on 7th April, 2018 and it has a stamp of Kirobon Farmers Company Limited. The extract shows that Samwel Chelule Chebunye was given Plot No. 144 which measured 5.987 Ha. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 22

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339. The Plaintifi also produced a copy of a letter dated 4th September, 2015 (Exhibit P8) which confirms that Chelule Chebunye (deceased) was allocated a parcel of land at Keringet known as LR No. 11323/144. 340. This evidence was not controverted by the Defendants. 341. It is therefore evident that Chebunye Chelule (deceased) was allocated Plot No. 144 which was a portion of LR No. 11323. 342. In the Plaint, the Plaintifi avers that Plot No. 144 was stated in the Certificate of Confirmation of Grant (Exhibit P1) as land parcel No. Molo South Block 2/11323 (Kirobon). 343. This Court notes that the Plaintifi did not produce any title deed for land parcel No. Molo South Block 2/11323 (Kirobon). 344. It is trite law that he who alleges must prove. 345. Section 107 of the Evidence Act provides as follows; 346. “ (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” Section 108 of the Evidence Act provides as follows; “ The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 347. Section 109 of the Evidence Act Provides as follows; “ The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 348. In the judicial decision of Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Ofice Savings Bank [2004] eKLR the Court of Appeal held as follows; “ We have carefully considered the judgement of the superior Court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintifi and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. It also follows that a Court should not make any findings on unpleaded matters or grant any relief which is not sought by a party in the pleadings.” [Emphasis Mine] https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 23

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349. The Plaintifi seeks that the Court issues a declaration that Plot No. 144 situated on land parcel No. Molo South Block 2/11323 (Kirobon) belongs to Chelule Chebunye (deceased). 350. After considering the evidence adduced in this matter, this Court is of the view that whereas, the Plaintifi has proved that Chelule Chebunye (deceased) was allocated Plot No. 144, she has failed to demonstrate that the said plot is situated on land parcel No. Molo South Block 2/11323 (Kirobon). 351. That being the case, I decline to issue a declaration on this point. B. Whether the Defendants are trespassers on Plot No. 144 situated on land parcel No. Molo South Block 2/11323 (Kirobon). 352. In answer to this first question, I will need to establish whether the Plaintifi and the Defendants are speaking of the same parcel of land, whether the Defendants are in occupation of the land subject of this suit and whether the Plaintifi can then be granted orders of eviction. 353. The Plaintifi contends that the Defendants have trespassed on Plot No. 144 which is situated on land parcel No. Molo South Block 2/11323 (Kirobon). 354. In response, the 1st to 21st Defendants contend that they purchased portions of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (Kirobon) (sic) from Decca Chelule which they are in possession of. 355. The 22nd Defendant on the other hand contends that she is the registered owner of land parcel No. Molo South Keringet Block 2/854 (Kirobon) which she contends is one of the resultant subdivisions of land parcel No. Molo South Keringet Block 2/649. 356. The 1st to 21st Defendants produced copies of land sale agreements that demonstrate that they purchased portions of land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (Kirobon) (sic) while the 22nd Defendant has a title deed for land parcel No. Molo South Keringet Block 2/854 (Kirobon). 357. The Court of Appeal in Doshi v Chemutut & 7 others [2025] KECA 776 (KLR) held as follows; “ Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geofirey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintifi in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plaintifi must prove that he has the right to immediate and exclusive possession of the land…” (Emphasis mine) 358. In the above cited judicial decision, the Court of Appeal held that a proper Plaintifi in an action for trespass is a person who has title to it or is in possession of land. 359. Under issue (a) above, this Court has made a finding that the Plaintifi has failed to demonstrate the nexus between Plot No. 144 and land parcel No. Molo South Block 2/11323 (Kirobon). 360. It is further this Court’s view that in the issue under consideration, the Plaintifi has failed to establish the nexus between Plot No. 144 which she alleges belongs to Chelule Chebunye (deceased) and land parcel No. Molo South Keringet Block 2/17 Plot No. 17 (Kirobon) (sic) that the 1st to 22nd Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 24

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state to have purchased (they produced six agreements (Exhibit D1 (a) to (f) as proof of purchase) and admit to be in possession of. 361. The Plaintifi has also failed to establish the nexus between Plot No. 144 and land parcel No. Molo South/ Keringet Block 2/854 (Kirobon) that is registered in the name of the 22nd Defendant and which the 22nd Defendant is in possession of. 362. Taking into consideration the circumstances of this case, I find that the Plaintifi has failed to prove her claim for trespass. C. Whether the prayers sought in the Plaint should be granted. 363. 364. The other prayers sought by the Plaintifi are : a. An order of permanent injunction restraining Defendants by themselves, their agents, servants, and/or employees from interfering with the Plaintifi’s quiet possession and use of the suit property. b. General damages for trespass. Given my findings on issues (a) and (b) above, I decline to grant these prayers. D. Who should bear costs of the suit. 365. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 366. In the result, I find that the Plaintifi’s suit lacks merit and it is hereby dismissed with costs. 367. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 16TH DAY OF OCTOBER, 2025. L. A. OMOLLO JUDGE. In the presence of: Mr. Langat for the Plaintifi. Mr. Gai for the 21st and 22nd Defendants. Miss Mweni for the 1st – 20th Defendants. Miss Mweni for Kibet for the Interested Party. No appearance for the 23rd Defendant. Court Assistant; Mr. Joseph Makori. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7095/eng@2025-10-16 25

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