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letter dated 28/12/2017, letter dated 28/4/2020 to the chief and a copy of the title deed as P. Exhibits Nos. 1 - 5. 5. In cross-examination, PW2 told the court that the encroachment may have started before he bought the land in 2018, when the defendants removed the beacons for the boundary; otherwise, he was aware of a letter dated 28/12/2017. PW2 told the court that the trespass has been continuous, whereof the defendants have been tilling his land. PW2 told the court that eorts to amicably settle the matter have been unsuccessful. 6. The suit is opposed by the 1st defendant through a statement of defence dated 19/12/2022. He denies being the owner of plot No. 36 Kibichoi Farm. The 1st defendant avers that he, his siblings and cousins are beneciaries of the suit land, whose deceased parents had resided in the suit land since 1964 before he was born. The 1st defendant denied the alleged attempts to settle the boundary dispute before the area chief, as alleged, or at all. Further, the 1st defendant denied knowledge of the alleged site visit by the County Surveyor on 20/3/2018, or any other surveyor who conrmed the alleged encroachment. The 1st defendant averred that the reliefs sought by the plainti are untenable in law; otherwise, he denied receiving any second letter before the suit was led. 7. At the trial, Caleb Mbugua testied as DW1. He relied on a witness statement dated 19/12/2022 as his evidence-in-chief. His testimony was that he is one of the sons and beneciaries of LR No. 3206 (IR 3303) Kibichoi Farm, measuring approximately 420 acres or thereabout, which is in the joint names of his father Haron Mbugua Gachani and an uncle Ibrahim Muiruri Kiondo (deceased), who had been residing on the land since 1964. 8. DW1 said that none of his family or himself have encroached on the plainti’s land, L.R No. Trans Nzoia/Maridadi/6 or at all. He denied the alleged boundary dispute. Further, DW1 told the court that the plainti acquired the parcel in 2017, while his family had already been occupying the land for over 55 years; hence, the issue of trespass does not arise. 9. The issues calling for my determination are whether the plainti has proved trespass or encroachment on the suit land by the defendants, to be entitled to the reliefs sought. 10. Trespass refers to unjustied entry into the private land of another and committing acts of destruction therein. See Section 3(3) of the Trespass Act. For a party to succeed in trespass, he has to prove immediate exclusive occupation or possession, which has been disturbed by the respondent. In M'Ikiara M'Rinkanya and Another -vs- Gilbert Kabeere M'Mbijiwe NYR CA Civil Appeal No. 124 of 2003 [2007] eKLR, trespass was dened as a violation of the right to occupy and use land. 11. The plainti’s claim, as pleaded, is that the alleged trespass or encroachment arose in 2017 before he bought the suit land, and has continued to date. On the other hand, the defendants plead that the suit land initially belonged to their forefathers, hence they are justied to use the land by virtue of inheritance. 12. To sustain his claim, the plainti has produced title documents and survey reports to show the extent of encroachment of his land by the defendant. In Eliud Njoroge Gachiri -vs- Stephen Kamau Nganga [2018] eKLR, the court dened continuing trespass as a series of acts done on consecutive days that are of the same nature and are renewed or continued from day to day, so that the acts in aggregate form one indivisible harm. 13. Tilling the land, as alleged by the plainti, has not been denied by the defendants. The same has been conrmed by a land surveyor who visited the locus in quo and prepared a report. The defendants were duly notied of the acts of encroachment by the plainti before the suit was led. There is evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18739/eng@2025-07-30 2

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that a survey was summoned by the area chief and notices were sent to all the parties to attend the survey visit. The report by the county surveyor has not been challenged by any other rival or competent land survey report. As a registered owner of the suit land, the plainti is entitled to protection of all rights of an absolute proprietor under Sections 24, 25 and 26 of the Land Registration Act. 14. The defendants have not proved the alleged overriding interests which attach to the suit land and are subject to the title deed held by the plainti, to justify their acts of encroachment. 15. Encroachment or trespass refers to unauthorized entry, whether present or continuous. In Muthiora vs- Marion Muthama Kiara (deceased) Civil Appeal 43 of 2017 [2022] KECA 28 [KLR] (4th February 2022) (Judgment), the court observed that the burden of proving or disproving a fact falls on he who, it is within his knowledge, of certain facts. The court said that trespass or continuous trespass includes building, cultivating, tilling, or grazing land without the consent of the occupier. The court held it also includes permanent invasion of another’s right and that every continuance of a trespass is a fresh trespass of which a new cause of action arises. 16. Entry into and remaining in occupation of the suit land by the defendants is not disputed. As long as it is not authorized by the true owner or justied in law or fact, the defendants remain unauthorized on the suit land. The defendants’ statement of defence that the suit land is family or ancestral land has not been substantiated. Evidence of overriding interest superior to the right held by the plainti has not been tendered. 17. In my considered view, the plainti has proved his claim to the required standards, to be entitled to the reliefs sought. The upshot is that I grant the reliefs sought. The defendants are directed to hand over vacant possession of the suit land to the plainti immediately, in default of which they shall be evicted from the suit premises after a period of 90 days from the date hereof. The costs of the suit and for any eviction exercise shall be borne by the defendants, in the event they default to willingly yield vacant possession. 18. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 30TH DAY OF JULY 2025. In the presence of: Court Assistant - Dennis Ngeywa for 1st defendant present 2nd defendant absent Arunga for plainti absent HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18739/eng@2025-07-30 3

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