Kaptingei v Kerich

to stop the construction but the Defendant did not stop. He went and reported the matter to the Assistant Chief of Kapsaret. 3. A meeting was held at the suit property and minutes of the meeting were recorded. He stated that he never sold any portion of the property to the Defendant. 4. The Plainti called PW2 Pius Kipchirchir Kogo who adopted his witness statement dated 29th June, 2018. He testied that he purchased one acre from the Plainti where he stays todate. The Defendant came and occupied a plot next to his. The Defendant asked him to help him build a house. The Defendant constructed a brick house, a wooden store, brick latrine and dug a borehole. He also planted maize on the land. When this suit was led the Defendant moved away. 5. The Plainti also called PW3 Shadrack Kipchumba Kaptingei who adopted his witness statement dated 2nd July, 2018. He stated that he purchased land from the Plainti. In 2017, the Defendant approached him for timber. He sold timber worth Kshs.25,000/= to the Defendant who constructed a brick house, wooden store, latrine and dug a borehole. The Defendant built 60 metres away from his land. 6. On 6th December, 2017, the area Chief convened a meeting at the home of the Plainti. In attendance were purchasers who had purchased land from the Plainti. Among those present was the Defendant who was claiming two acres. The Defendant had planted maize on his portion. Defendant’s Case 7. The Defendant testied that he purchased two acres from Abel Kigen Maritim. The two acres were part of the suit property. Abel Kigen Maritim had purchased the land form Christopher Kiplagat Melly who had purchased it form the Plainti. 8. The Plainti started complaining that he had not sold the land to him. He went and reported to the area chief who came to the suit property. The Plainti demanded Kshs.10,000/= so as to process titles for the purchasers. The Plainti alleged that the documents which the Defendant had were forgeries. 9. The Defendant called DW2 Abel Kigen Maritim who testied that he is the one who sold the land to the Defendant. He stated that he had purchased the same land form Christopher Kiplagat Melly. Abel purchased the land from Christopher in 2010 and sold it to the Defendant in 2017. 10. Abel testied that he led a case against the Plainti and Christopher Kiplagat Melly in 2018. He later learnt that this case had been led against the Defendant. He stated that he was not in the meeting which was convened by the area chief at the Plainti’s home. 11. DW4 Francis Obaka testied that he had been doing casual jobs for the Plainti but he stopped. He testied that he changed to doing casual jobs for the Defendant who is the current owner of two acres. The two acres were sold in 1999 and there is a time a surveyor came to the ground. He stated that he is the one who planted trees which are on the two acres occupied by the Defendant. 12. DW5 Thomas Kimagut Ngeny testied that he was a college mate of the Plainti and is also his neighbour. He has been in the area for over 50 years. He stated that he is aware that the Plainti sold two acres. The Defendant purchased the two acres from Abel Kigen Maritim in 2010. The witness stated that he purchased one acre from the Plainti and there are more people who purchased land from the Plainti. The two acres belonging to the Defendant are fenced. 13. The Defendant called DW6 Rebecca Kogo who is the area chief. She testied that she was aware that the Plainti sold two acres to Christopher Kiplagat Melly in 1999. Christopher sold the two acres to Abel Kigen Maritim who in turn sold to the Defendant who has built a brick house which is incomplete. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18273/eng@2025-12-11 2

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There is a time the Plainti was summoned to the chief’s oce but he did not attend. An assistant chief handled the case. 14. The Defendant called a County Surveyor as his last witness. The surveyor testied as DW7 Samuel Langat. He stated that according to the records held by their oces, the Plainti subdivided his land into four portions. The mutations were duly registered. He stated that there was an error in the title held by the Plainti which indicates that his land is Block 1 whereas it is supposed to be in Block 3. He stated that the same error is repeated in the green card. 15. The witness testied that Block 1 is for parcels which falls under Yamumbi. Block 2 is for parcels which fall under Kaptuiya and Block 3 is for parcels which fall under Mararma. Parties Submissions 16. The parties were directed to le written submissions. The Plainti eld hi submissions dated 24th July, 2025. The Defendant eld his submissions dated 17th September, 2025. Plainti ’s Submissions 17. In his submissions, the Plainti identied the following issues for determination: i. Who is the legal owner of Kapsaret/Kapsaret Block 1 (Mararma) 11? ii. Whether the Plainti is entitled to the reliefs sought? iii. a. Eviction b. An order of demolition of structures. c. Mesne prots. d. Permanent injunction. Who should bear the costs of the suit? Defendant’s Submissions 18. In his submissions the Defendant identied the following issues for determination: a. Whether the Plainti sold 2 acres to be excised from his land? b. Whether Kapsaret/Kapsaret Block 1 (Mararma)/11 and Kapsaret/Kapsaret Block 3 (Mararma)/11 Refer One And The Same Land? c. Who is in possession of the 2 acres in the Plainti’s land? d. Whether the Defendant has trespassed onto the suit land? e. Whether an order of permanent injunction should issue against the Defendant? f. What reliefs should be granted? g. Who should pay the costs of the suit? Analysis and Determination 19. I have carefully considered the evidence adduced by the Plainti and that of the Defendant. I have also considered the submission by the parties. There is no contention that the Plainti is the registered https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18273/eng@2025-12-11 3

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owner of LR No. Kapsaret/Kapsaret Block 1 (Mararma)/11 which I shall hereinafter refer to as the suit property. The rst issue for determination is whether the suit property is one and the same as Kapsaret/ Kapsaret Block 3 (Mararma)/11. There is no contention that the two acres which are being claimed by the Defendant are within the suit property. 20. The evidence which was adduced is that the origin of the 2 acres arise from the agreement between Christopher Kiplagat Melly and Abel Kigen Maritim. The evidence which was adduced is that Christopher Kiplagat Melly purchased the 2 acres from the Plainti in 1999. It is Abel Kigen Maritim who sold the two acres to the Defendant in 2010. 21. When Christopher Kiplagat Melly was selling his two acres to Abel Kigen Maritim, the property was described as Kapsaret/Kapsaret Mararma. In this agreement, the Plainti signed on it conrming that the land being sold was his land. During the hearing, the Defendant’s counsel asked the Plainti whether he had been a witness in a sale agreement between Abel Kigen and Christopher Kiplagat Melly. The Plainti’s answer was and I quote “I have been a witness in a sale agreement between Abel Kigen and Christopher Kiplagat Melly”. 22. It is Abel Kigen Maritim who sold the two acres which he had purchased from Christopher Kiplagat Melly to the Defendant. The Plainti is arguing that the Defendant purchased land from Kapsaret/ Kapsaret/Block 3 (Mararma) 11 which does not belong to him. The Defendant called DW7 Samuel Langat, a County Surveyor. This witness testied that the title known as Kapsaret/Kapsaret Block I (Mararma)/11 is erroneous. This was a mistake which was made in the green card as well as the title. He explained that block 1 is assigned to plots at Yamumbi. Block 2 is assigned to plots at Kaptuiya and Block 3 is assigned to plots at Mararma. 23. The County Surveyor went on to show that in 2012, the Plainti applied for subdivision of his land under Block 3 which is under Mararma Block. The Plainti’s land was subdivided into four portions of various sizes. He produced a Registry Index Map (RIM) which was prepared showing the four subdivisions. 24. All the Defendant’s witnesses testied that the Defendant was occupying two acres within the Plainti’s land. The Plainti has sold various sizes to persons including the witnesses of the Defendant who testied that the Defendant was their neighbour. The Plainti having endorsed the agreement between Abel Kigen Maritim and Christopher Kiplagat Melly, he cannot turn around and say that the Defendant may have purchased land from a dierent block. The same land which he endorsed is the same land which Abel Kigen Maritim sold to the Defendant. I therefore nd that the suit property is one and the same as Kapsaret/Kapsaret Block 3 (Mararma)/11. 25. The Plainti took issue with ELC suit No. 11 of 2018 which had been led by Abel Kigen Maritim against him and Christopher Kiplagat Melly. He argued that this suit was based on LR No. Kapsaret/ Kapsaret Block 3 (Mararma)/39. This suit was based on one of the subdivisions of Kapsaret/Kapsaret Block 3 (Mararma)/11 which was done by the Plainti. This was conrmed by the County Surveyor and the Plainti did not deny the fact of subdivision. 26. The second issue for determination is whether the Defendant is a trespasser on the suit property. I have already demonstrated that the ownership of the two acres claimed by the Defendant is as a result of the sale to him by Abel Kigen Maritim. Abel Kigen Maritim testied in this case and conrmed that he sold the two acres to the Defendant. Abel Kigen Maritim purchased the two acres from Christopher Kiplagat Melly. The Plainti witnessed the agreement between Abel and Christopher. The Plainti cannot therefore call the Defendant a trespasser on land which he himself had endorsed as his. The Defendant is therefore not a trespasser on the land which falls within the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18273/eng@2025-12-11 4

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27. The Plainti produced minutes of 6th December, 2017 in which he was present. The meeting was convened at his land and the subject was subdivision for purposes of giving titles to purchasers. It was agreed that each purchaser had to produce proof that he/she purchased land. The Plainti produced these minutes but what was led in court had the members in attendance redacted during photocopying. However the Defendant testied that his name appeared as number ten (10) on the list. Disposition 28. With all these evidence, the Plainti cannot say that the Defendant is a trespasser on the land. The Plainti himself agrees that the Defendant is in occupation and has built on the land. There is no way the Defendant can have his buildings demolished or evicted from the land he lawfully purchased. I therefore nd that the Plainti has failed to prove his case against the Defendant. The Plainti’s case is dismissed with costs to the Defendant. …………………………….. HON. E. O. OBAGA JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 11TH DAY OF DECEMBER, 2025. In the presence of: Mr. Kimurgor for Mr. Kigen for Plainti. Ms. Kesei for Defendant. Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18273/eng@2025-12-11 5

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