Epusi v Orodi alias Etyang Okacho (Environment and Land Case 143 of 2014) [2026] KEELC 1094 (KLR)

3. The duty of a Court of law is to provide solutions to real disputes. Therefore, and notwithstanding the convoluted issues herein, I must not “let sleeping dogs lie” which is the easier option. I will craft a disposal order which hopefully will bring an end to this dispute for the benefit of the parties present and future generations. 4. By a plaint dated 17th April 2014 and filed herein on the same day, the Plaintifi seeks judgment against the Defendant in the following terms with regard to the suit land: 1. An Order for the eviction of the Defendant, his agents and servants from the land parcels No North Teso/Kocholia/1949 and 1950 plus an order of permanent injunction restraining the Defendant, his agents and servants from interfering with the said land. 2. Costs of this suit. 5. The gist of the Plaintifi’s claim is that the suit land is a resultant sub-division of the original land parcel No North Teso/Kocholia/139 which belonged to the late Yokosofati Otwane father to one MargaretEtyang Aka MargaretEtyang Ete. That prior to his demise, the said Yokosafati Otwane had transferred the original land parcel No North Teso/Kocholia/139 to his daughter MargaretEtyang Ete (herein Margaret Etyang) who subsequently sub-divided it to create the suit land. The suit land was thereafter sold to the Plaintifi first vide a sale agreement dated 1st May 1998 and subsequently vide another sale agreement dated 13th March 1999. The Plaintifi paid the full purchase price and obtained the titles thereto. He then fenced the suit land in 2006 but the Defendant has since pulled it down. 6. In 2007, there was a boundary dispute between the Defendant on one side and one Margaret Nanguye Ikong’o, her sister Demitila Ikaani and one Okacho Orodi on the other side. The dispute was heard by the then Dispute Tribunal at Amagoro which awarded the Defendant the land. The award by the Tribunal was adopted as a judgment of the BUSIA COURT. However, Margaret Nanguye Ikong’o (it is not clear if this is the same Margaret Etyang) appealed that decision to the Appeals Committee which was disbanded before hearing the appeal. The Plaintifi adds that although he is the registered proprietor of the suit land, he was not enjoined in the proceedings. On 25th June 2014, the Plaintifi and MargaretEtyang were summoned by the Land Registrar Busia who informed them that surveyors would be visiting the suit land to implement the Court order. That necessitated the filing of this suit. 7. In support of his claim, the Plaintifi filed a statement dated 24th April 2017 and a further statement dated 4th April 2024. 8. His statement dated 24th April 2017 is basically a rehash of what is contained in his plaint. It summarizes how on the morning of 25th April 1998 MargaretEtyang and Demitila Barasa informed him that their father Yokosofati Otwane wanted to sell his land parcel No North Teso/Kocholia/139 which had already been registered in the name of Margaret Etyang. He expressed interest in purchasing the land and it was also agreed that he would pay for it in instalments. The relevant consent of the Land Control Board was obtained and the suit land was transferred to MargaretEtyang following a sub-division who then sold it to the Plaintifi who was subsequently issued with the title deeds. 9. Thereafter, the Defendant started complaining and reported the Plaintifi to the Assistant Chief who referred the issue to the Chief and subsequently the District Oficer who informed the Defendant that he is a squatter occupying land which is not his. The case was later heard by the Land Disputes Tribunal in the absence of the Plaintifi who was out of the country and during his life time and which she subsequently sub-divided to create the suit land which she sold to the Plaintifi. That the sale transactions were above board and were never challenged and therefore the suit land vests in the Plaintifi yet the Defendant has encroached thereon and is claiming ownership. That the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 2

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had his own land which was taken over by his brother Asa Nyongesa Orodi. The Defendant is not a son of Yokosofati Otwane nor his dependant and therefore he has no reasonable claim to the suit land. Therefore, the Plaintifi is entitled to the orders which he seeks in the plaint. 10. The Plaintifi filed a list of documents dated 17th April 2014 and 24th April 2017 as well as a supplementary statement dated 4th April 2024. 11. The documents NO 1 to 4 on the list of documents dated 17th July 2014 were expunged from the record during the hearing on 26th April 2023. That only left the following documents from that list which were produced by the Plaintifi during the plenary hearing: 1. Expunged. 2. Expunged. 3. Expunged. 4. Expunged 5. Application to the Land Control Board dated 2nd December 1985 for the transfer of the land parcel No North Teso/Kocholia/139 from Yokosofati Otwane to MargaretEtyang Ete by way of a gift. 6. Receipt dated 3rd December 2012. 7. Letter of Consent dated 5th December 1985. 8. Receipt for transfer dated 7th March 1986. 9. Land Sale agreement dated 1st May 1988. 10. Land sale agreement dated 13th June 1986. 11. Land Sale agreement dated 13th March 1999. 12. Land Sale agreement dated 24th September 1999. 13. Land boundary dispute report dated 7th November 1999. 14. Title deeds for the land parcels No North Teso/Kocholia/1949 and 1950. 15. Certificates of Oficial Search for the land parcels No North Teso/Kocholia/1949 and 1950. 16. Letter dated 3rd August 2007 from the Provisional Commissioner Kakamega addressed to the Principal Magistrate Busia. 17. Letter dated 13th June 2014 from Imwene P.a. Advocate addressed to the District Land Registrar Busia. 18. Letter from the Land Registrar Busia dated 25th June 2014 and addressed to the Plaintifi and Margaret Etyang. The Plaintifi filed a further list of documents dated 24th April 2017 containing the following: 1. Copies of land sale agreements between the Plaintifi and Margaret Etyang. 2. Copies of title deeds for the land parcels No North Teso/Kocholia 1949 and 1950. 3. Photographs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 3

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The Plaintifi also filed a list of documents dated 8th September 2021 containing a copy of the Register for the land parcel No North Teso/Kocholia/139 and another list of documents dated 4th October 2022 to which is annexed a copy of the ruling delivered in BUSIA ELC Civil Appeal No 4 Of 2019 – Margaret Nanguye Ikong -v- Justusetyang Orodi & Land Registrar Busia. 12. The Defendant filed a defence and counter-claim in which he denied the averments by the Plaintifi and pleaded, inter alia, that the transfer of the suit land to the Plaintifi was recalled and cancelled by the Land Registrar. Further, that all disputes with respect to the suit land were determined in his favour and the award adopted as an order of the Court and no appeal is pending against the decision of the Land Disputes Tribunal. 13. In his counter-claim, the Defendant pleaded that he was adopted by Yokosofati Otwane and inherited the land parcel No North Teso/Kocholia/1939 (it is actually No North Teso/Kocholia/139) where he has lived since 1967 to-date. He is therefore the sole proprietor of the said land parcel No North Teso/ Kocholia/139 and that the sub-division thereof to create the suit land was fraudulent and that there is an order and decree of the Land Registrar to recall and cancel any transfer on the mother title. That the Plaintifi has refused to give him vacant possession of the suit land which he fraudulently transferred to himself. That a Preliminary Objection would be raised that this suit is res judicata since the matter in dispute was determined in Busia Chief Magistrate’s Court Land Case NO 10 of 2007. 14. The Defendant pleaded in his counter-claim that on diverse dates in January 2009, the Plaintifi through his agents destroyed his cassava and mangoes resulting in crop loss valued as follows: 1. Cassava - 1,200 2. Land Preparation - 100 3. Planting Material - 100 4. Transport Costs - 100 5. Planting and Weeding - 100 6. Value of Mangoes - 16,000 Total Kshs.17,800.00 15. 16. The Defendant therefore prays for judgment against the Plaintifi by way of counter-claim as follows: a. The Plaintifi’s suit be dismissed with costs. b. The Defendant be granted vacant possession of the land parcel No North Teso/Kocholia/139 and cancellation of any titles created from the mother title. c. Kshs.17,800 d. Costs of the suit and counter-claim. e. Interest at Court rates The Defendant filed his statement in which he averred that Yokosofati Otwane was his uncle and since he had no sons, he adopted him but had two daughters namely MargaretEtyang and Demitila Ete. That his uncle gave him a portion of the land parcel No North Teso/Kocholia/139 where he has lived since 1967 and even buried his son GODRICK EKIRAPA without any dispute. Every one considers him to be the son of Yokosofati Otwane and even when Margaret Etyang’S marriage failed and she returned to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 4

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her parents homestead, she was not gifted with any land nor was she considered for inheritance against Teso Customary law. 17. That when Yokosofati Otwane fell ill, MargaretEtyang took advantage and started transferring the land parcel No North Teso/Kocholia/139 into her names and even took him to the Land Registrar to append his signature on the transfer. She never tried to share the land with Demitila who declined as she was married elsewhere and it was against Teso customary law. MargaretEtyang then sold the land parcel No North Teso/Kocholia/139 to the Plaintifi who sub-divided it to create the suit land. That neither the Defendant nor the family members consented to the transfer of the suit land to the Plaintifi and which took place when there was an on-going dispute at the Land Disputes Tribunal which was determined in favour of the Defendant. The award of the Land Disputes Tribunal was adopted by the Magistrate’s Court in favour of the Defendant and the Land Registrar was directed to recall and cancel the title deeds to the suit land and register the same in the name of the Defendant. However, each time the Land Registrar and County Surveyor visit the suit land to efiect the Court order, the Plaintifi disregards the orders and is still in possession of the suit land yet all the issues were settled by the Land Disputes Tribunal. 18. The Defendant filed the statement of his witness Demitila Ikaan Barasa dated 2nd June 2023 in which she described the Defendant as her brother and the adopted son of her late father Josokofati Otwane since 1966/1967. That her late father had only two daughters being herself and MargaretEtyang and owned the land parcel No North Teso/Kocholia/139 part of which he had allocated to the Defendant where he built his home when he became of majority. The land had been inherited by their grandfather from their great grandfathers and was therefore ancestral land. 19. Since she was married, she was surprised when she visited home and was informed that her sister MargaretEtyang had fraudulently transferred the land into her name and later sold it to the Plaintifi. She denied having been a witness to the sale agreements or any documents adding that the transfer was done without the consent of her late father or herself and she was surprised to see the suit land fenced including the Defendant’s homestead. 20. The Defendant filed a suit at the Land Disputes Tribunal which ruled in his favour but the decision was quashed by the High Court on the ground that the Land Disputes Tribunal had no jurisdiction to nullify the Plaintifi’s title. This Court should therefore dismiss the Plaintifi’s case and make an order that the suit land be registered in the Defendant’s name with her having a life interest therein as his sister. If there was any exchange of money, which is disputed, the issue should be resolved between the Plaintifi and MargaretEtyang because the suit land was ancestral land. That evicting the Defendant who has interred bodies therein would be prejudicial to him because by the time the Plaintifi purchased the suit land, the Defendant was in occupation. The Plaintifi’s suit should be dismissed. 21. The Defendant filed the following lists of documents dated 15th July 2018, 22nd May 2023 and 2nd June 2023 to which were annexed the following documents: 15th July 2018: 1. Letter dated 25th June 2014 from the Land Registrar Busia addressed to the Plaintifi and Margaret Etyang. 2. Letter from the Agricultural Oficer Amagoro dated 12th February 2009 and addressed to whom it may concern. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 5

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3. Decree issued in Busia Principal Magistrate’s Court land dispute NO 10 of 2007 between the Defendant and Margaret Nanguye Ikong adopting the Tribunal’s award. 4. Defendant’s statement. 5. Letter from the Provincial Commissioner Kakamega dated 3rd August 2007 addressed to the Principal Magistrate’s Court Busia. 6. Letter dated 31st to the District Oficer Amagoro by the Defendant. 7. Copy of the proceedings of the Amagoro Land Disputes Tribunal case NO 10 of 2006 between the Defendant (as claimant) and MargaretEtyang (as objector). 22nd May 2023: 1. Boundary disputes minutes dated 7th November 1999. 2. Letter from Amagoro location Chief dated 16th March 2023 and addressed to whom it may concern. PARA 3. Certificate of death for Yokosofati Otwane showing date of death as 16th March 2020. The Plaintifi filed on 3rd September 2021, reply to defence and a defence to the counter-claim dated 8th September 2021 and denied the Defendant’s averments in paragraphs 18, 19, 20, 21, 22, 23 and 24 adding that by the time he purchased the suit land, it was vacant. He repeated that the original land parcel No North Teso/Kocholia/139 was registered in the name of Yokosofati Otwane who on 5th December 1985 obtained the relevant consent to transfer it to MargaretEtyang which title was subsequently closed and the suit land was transferred to the Plaintifi above board and without any fraud. He put the Defendant to strict proof of his counter-claim and pleaded that the same be dismissed with costs and that his plaint be allowed. 22. The hearing commenced on 26th April 2023 and ended on 18th February 2025 when the Defendant closed his case. 23. The parties testified and adopted as their evidence the contents of their statements which I have summarized above. They also called their witnesses who also adopted as their evidence the contents of their statements summarized above. They also produced as their documentary evidence the documents annexed to their respective lists of documents filed herein. 24. Submissions were thereafter filed both by Mr Murunga instructed by the firm of Chengasia Murunga & Company Advocates for the Plaintifi and by MS Chunge instructed by the firm of Elizabeth Chunge & Company Advocates for the Defendant. 25. I have considered the evidence by the parties and their witnesses as well as the submissions by counsel. 26. Before I delve into the merits or otherwise of the parties respective cases, I need to confirm, for the avoidance of any doubt, that although the Defendant had filed a Notice of Preliminary Objection dated 15th February 2018 contemporaneously with his defence and counter-claim in which he pleaded that the issues in this suit are res judicata having been determined in Busia Chief Magistrate’s Court Land Case No 10 of 2007, I have checked the record and confirmed that Kaniaru J considered the Preliminary Objection and dismissed it vide his ruling delivered on 11th September 2019. No appeal was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 6

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filed against that ruling. Therefore, the plea of res judicata is no longer a matter for my consideration in this judgment. 27. I have identified the following issues for my determination in this matter: 1. Whether the Plaintifi is entitled to an order for the eviction of the Defendant, his agents and servants from the suit land and also an order permanently injuncting them from interfering with the said land. 2. Whether the Defendant is entitled to an order of vacant possession of the suit land and the cancellation of the titles. 3. Whether the Defendant is entitled to an order of special damages of Kshs.17,800. 4. Who shall meet the costs of the suit. I shall consider the claims by the parties in that sequence: The Plaintifi ’s Claim: 28. The Plaintifi seeks the eviction of the Defendant, his agents, servants and all those claiming under him from the suit land as well as an order of permanent injunction restraining them from interfering with the suit land. 29. It is common ground that the Plaintifi has since 16th November 1999 been the registered proprietor of the land parcel No North Teso/Kocholia/1949 and since 10th July 1998 the registered proprietor of the land parcel No North Teso/Kocholia/1950. He holds the title deeds to the suit land which, in accordance with the provisions of Section 24(a) of the Land Registration Act, vests in him “the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”. Those rights and privileges no doubt, include being able to evict trespassers and other persons who are illegally occupying the suit land and also permanently injuncting them from interfering with his occupation and possession of the same. However, it is also clear from the provision of Section 25(2) of the same Act that the rights of a proprietor shall not relieve him “from any duty or obligation to which the person is subject to as a trustee.” It is common ground that by the time the Plaintifi purchased the suit land from Margaret Etyang, the Defendant was already in occupation of the same. When he was cross-examined by MS CHUNGE during the plenary hearing on 26th April 2023, he said: “ When I purchased the two parcels of land No North Teso/Kocholia/1949 and 1950, I was aware that the Defendant was utilizing the same. He was utilizing the parcel No North Teso/ Kocholia/1950. He had a house on it. The original land was No North Teso/Kocholia/139 and it belonged to JOSPHAT OTWANI ETE who was the uncle to the Defendant before it was subdivided to create parcels No North Teso/Kocholia/1949 and 1950. I do not recall how long the Defendant has been living on that land. I am aware that the Defendant has another parcel of land but I do not know the number of that land. I am aware that the Defendant has buried his son on portion No North Teso/Kocholia/1949. When I was buying the land, I did not ask the Defendant to leave the land.” When his witness MargaretEtyang (PW2) was cross-examined by MS CHUNGE, she too confirmed that the Defendant occupies the suit land she said: “ The Defendant and his family live on the land to-date.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 7

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In his statement dated 15th July 2018 and which he adopted as his evidence during the plenary hearing, the Defendant states in paragraph 3 that: “ My uncle gave me a piece of land to settle out of his family’s portion being land parcel No North Teso/Kocholia/139 where I have lived from 1967 to-date. I even buried my son the late GODRICK EKIRAPA on the parcel of land in the 1980’s and there were no disputes on the burial place since everyone in the family considered me as the son of the deceased Yokosofati Otwane ETE.” The Plaintifi’s evidence is that he purchased the two portions of the suit land in 1998 and 1999 which is also confirmed by the copies of the title deeds. By that time, the Defendant who had been living on the suit land since 1967 had been inoccupation and possession thereof for over 30 years. And by the time the Plaintifi filed this suit in 2014, the Defendant had been in occupation and possession thereof for 47 years having even buried his son thereon. The Plaintifi admitted in cross-examination that although he was aware of the Defendant’s occupation and possession of the suit land, he did nothing about it. Section 7 of the Limitation of Actions Act provides that: 7: 30. “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” Even if time is computed from 1999 or 1998 when the Plaintifi purchased the suit land, it is obvious that by the time the Plaintifi obtained the title deeds to the suit land, the Defendant has been in occupation and possession of the same way over the 12 years limitation period within which he should have filed this suit to claim any eviction or injunctive orders against the Defendant with respect to the suit land. The Plaintifi’s claim, in so far as it relates to the portion of the suit land which the Defendant occupies, is clearly statute barred. The Defendant himself did not state what acreage of the suit land he occupies. However, in paragraph 15 of his statement, the Plaintifi states: 15: “That I have been utilizing the land comprised in L.R NO N. Teso/Kocholia/1949 and 1950 since 1999 to date save for a portion of land measuring approximately a quarter (¼) an acre comprised in LR NO N. Teso/Kocholia/1950 where the Defendant resides.” In paragraph 3 of his statement, the Defendant himself states: 3: “ 31. My uncle gave me a piece of land to settle.” Given those circumstances, this Court must go by the Plaintifi’s testimony that the Defendant only occupies one quarter (¼) acre of the suit land and not the whole of it. The Plaintifi’s claim to that portion of the suit land measuring one quarter (¼) of an acre is therefore statute barred and not the whole of the suit land. Therefore, the Defendant cannot be evicted from that one quarter (¼) acre out of the suit nor injuncted therefrom. However, he can be evicted from the remainder of the suit land and injuncted therefrom if indeed he is occupying it. I shall be making appropriate orders shortly with respect to the Plaintifi’s claim. The Defendant’s Counter-claim 32. The Defendant has pleaded in paragraph 21 of his defence and counter-claim that: 21: “The Plaintifi herein has declined and/or refused to give the Defendant herein vacant possession of land parcel No North Teso/Kocholia/1949 and North Teso/Kocholia/1950 the said parcels of land having been found to have been fraudulently transferred to the Plaintifi.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 8

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33. Of course, whatever findings the Land Disputes Tribunal had made with respect to the registration of the suit land in the Plaintifi’s name cannot aid the Defendant. Those proceedings and the resultant award were found by Kaniaru J vide his ruling on 11th September 2019 to have been made out of jurisdiction. It therefore behoved the Defendant, in this suit, to specifically plead and prove any allegations of fraud in the manner in which the Plaintifi obtained his title to the suit land if he desired this Court to cancel them and give them possession thereof as pleaded in paragraph 24(a) of his counterclaim. This is because, as provided in Section 26(1) (a) of the Land Registration Act, a certificate of title to land is prima facie evidence that the person named as the proprietor thereof “is the absolute and indefeasible owner” subject of cause to any encumbrances, easements, restrictions and conditions endorsed therein and the same cannot be challenged except: (a) “On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” The Defendant has not, in his counter-claim, specifically pleaded any allegations of fraud nor proved the same. In the case of Vijay Morjaria -v- Nansing Madhsing Darbar & Another 2000 eKLR TUNOI JA stated thus: “ It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleadings. The acts alleged to be fraudulent must, of course, be set out and it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 34. See also the case of Kinyanjui Kamau -v- George Kamau 2015 eKLR and also Ndolo -v- Ndolo 2008 IKLR (G&F) 742. Other than the fact that the allegations of fraud were not pleaded, there was no iota of evidence adduced by the Defendant “that he is the sole proprietor of land parcel No North Teso/ Kocholia/1939 (sic)” as pleaded in paragraph 20 of his defence and counter-claim. The documentary evidence provided show that the land parcel No North Teso/Kocholia/139 (not 1939 as pleaded by the Defendant) was always the property of Yokosofati Otwani and he transferred it to MargaretEtyang during his life time who then sub-divided it to create the suit land which she then transferred to the Plaintifi for valuable consideration. Clearly therefore, the Defendant cannot claim ownership of the suit land nor cancellation of the title or any portion thereof on the basis that the Plaintifi obtained title to the same by way of fraud. 35. Having said so, is the Defendant nonetheless entitled to any portion of the suit land by virtue of a trust? In my view, the evidence in this case suggest so. It is of cause settled law that a party claiming any property by way of a trust must plead as much Mbothu -v- Waitimu 1986 KLR 171. It is also well settled however, that in appropriate cases, that a Court can determine any issue which has not been pleaded. In the case oF Odd Jobs -v- Mubia 1970 EA 476, it was held that a Court may base it’s decision on an un-pleaded issue if it appears from the cause taken at the trial that the issue has been left for the Court to decide. That decision by the then Court of Appeal for East Africa has been followed by our Court of Appeal in many cases including in Aliaza -v- Saul 2022 KECA 583. 36. In this case, one of the issues which came out clearly was that the Defendant was a member of the family of Yokosofati Otwane the proprietor of the original land parcel No North Teso/Kocholia/139 who had no son but had adopted him as his son. That is really a matter of public knowledge because, in his letter dated 16th March 2023 and addressed to whom it may concern and which is among the documents filed herein, the Chief Amagoro Location identifies the Defendant, MargaretEtyang and Demitila IKAAN https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 9

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as the children of Yokosofati Otwane. In the said letter under the reference Yokosofati Otwane Ete Id No 206xxxx (DECEASED) the Chief states as follows in paragraph two: “ The purpose of this letter is to clearly and lawfully confirm that the deceased was a father to three children, one male and two female children, this are (sic) eligible rightful beneficiaries of all estates and other assets of the deceased. But all these to be done typically in TRUST and CARE of entire nuclear surviving family members. Bellow (sic) are ultimate children as follows: 1. OketchEtyang Orodi - ID NO 2064xxxx. 2. Demitila Ikaan - ID NO 421xxxx 3. MargaretEtyang Etee - ID NO 054xxxx.” The Plaintifi in paragraph 5 of his plaint has pleaded thus: 5: “The Defendant has his inheritance from his father’s land in the neighbourhood, to (sic) he is supposed to move to but he has refused.” However, the Plaintifi himself conceded in his viva voce evidence which I have already cited above, that when he purchased the suit land, the Defendant was already in occupation of a portion thereof. He also confirmed that, the Defendant was occupying a portion measuring approximately ¼ acre, there is no evidence that during his life time, Yokosofati Otwane had ever tried to evict the Defendant from the suit land. And the fact that the Plaintifi has waited until the filing of this suit to seek an order of eviction of the Defendant from the suit land means that he recognized that the Defendant’s interest therein arising from being a member of the family of Yokosofati Otwane the owner of the original land parcel No North Teso/Kocholia/139. Therefore, the issue as to whether or not the Defendant is entitled to a portion of the suit land by virtue of being a member of the family of the late Yokosofati Otwane is a matter which has been left for this Court to determine. I must therefore do so by considering whether the Defendant’s claim can be anchored on a customary trust. 37. A trust, as defined in Black’s Law Dictionary 10Th Edition is: “ The right enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title.” And as was held by the Supreme Court In The Case Of Isack M’inanga Kiebia -v- Isaaya Theuri M’lintari & Another 2018 eKLR, the issues which the Court has to consider in determining whether a customary trust has been established include: 1. The land in question was family, clan or group land. 2. The claimant belongs to the family, clan or group. 3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his or her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 5. The claim is directed against the registered proprietor who is a member of the family, clan or group. The Defendant’s witness Demitila Ikaan Barasa (DW2) confirmed in paragraph 19 of her statement thus: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 10

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19: “That the initial title comprised in the suit land was inherited by our grandfather from our great grandfathers being family/ancestral land from the Ikarwok clan of the Teso tribe.” 38. Earlier on in the said statement dated 2nd June 2023, she confirmed that the Defendant had been adopted by the late Josokofati Otwane as his son and was allocated part of the suit land where he built his home (paragraph 15). It is from this portion of the suit land which the Plaintifi seeks to evict the Defendant and permanently injunct him from interfering yet he found the Defendant in occupation of the same. The Defendant cannot be deemed to be a trespasser on the portion of the suit land which he occupies. A man who buys land without knowing who is in occupation of it risks his title just as he does if he fails to inspect it for 12 years after purchasing it – Mweu -v- Kiu Ranching & Farming Cooperative Society Ltd 1985 KLR 430. In this case, the Plaintifi not only knew about the Defendant’s occupation of a portion of the suit land but further, he tacitly recognized the Defendant’s interests in the said portion and therefore held the title in trust for the Defendant. 39. Although the Defendant seeks by way of his counter-claim, possession of the original land parcel No North Teso/Kocholia/139 and cancellation of the title to the suit land as well as the sum of Kshs.17,800 being the value of his damaged crop, he has not stated whether infact he occupies the whole of the suit land. In paragraph 21 of his defence and counter-claim, he had pleaded that the Plaintifi “has declined”, and/or refused to give the Defendant herein vacant possession of the land parcel No North Teso/Kocholia/1949 and NORTH Teso/Kocholia/1950. That is a clear admission that the Defendant only occupies a portion of the suit land and since the Plaintifi has identified that portion as measuring (¼) quarter of an acre without rebuttal, the Court will go by the Plaintifi’s computation. That is why at the commencement of this judgment I debated on whether I should “let sleeping dogs lie”. I decree that each party continues occupying whatever portion of the suit land they are occupying. However, in order to bring this dispute to an end, I must make disposal orders awarding each of the parties a specific acreage of the suit land. When he was cross-examined by Ms Chunge on 26th April 2023, the Plaintifi said: “ When I purchased the two parcels of land No North Teso/Kocholia/1949 and 1950, I was aware that the Defendant was utilizing the same. He was utilizing the portion No North Teso/Kocholia/1950. He had a house on it.” That can only mean that the (¼) quarter acre of land which the Defendant is entitled to can only be hived from the parcel No North Teso/Kocholia/1950 since he has himself not identified which of the two parcels which make up the suit land he occupies. 40. With regard to the claim of Kshs.17,800 being the value of the damaged crop, the letter from the District Agricultural Oficer Amagoro dated 12th February 2009 is headed: Re: Crop Damage Assessment Justus Okacho However, it does not state whether the damage crops were on the parcel No North Teso/ Kocholia/1949 or 1950. However, the report identifies the owner of the damaged crop as ‘JUSTUS OKACHO’ who am satisfied, is the Defendant herein. It is un-likely that the Plaintifi would have damaged his own crop. This Court is therefore satisfied that the value of the damaged crop has been specifically pleaded and proved to be Kshs.17,800 and, most importantly, that the crop must have been on the portion of the land parcel No North Teso/Kocholia/1950 which the Court has now found to be the portion occupied by the Defendant. The title deed to the land parcel No North Teso/Kocholia/1950 shows that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 11

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it measures 0.80 Hectares i.e. 1.97 Acres. The Defendant is therefore entitled to a portion thereof measuring (¼) quarter of an acre. 41. With regard to costs, this Court finds that the most prudent order to make in the circumstances is for each party to meet their own costs as each has partly succeeded. 42. Ultimately therefore and having considered the evidence by all the parties herein, this Court makes the following disposal orders: 1) The title to the land parcel No North Teso/Kocholia/1949 shall remain in the name of the Plaintifi. 2) The Plaintifi holds a portion measuring ¼ quarter an acre out of the land parcel NO North Teso Kocholia/1950 in trust for the Defendant. 3) The Plaintifi shall within 30 days of this judgment surrender to the Land Registrar Busia the original title deed for the land parcel No North Teso/Kocholia/1950 and execute all the relevant documents to facilitate the sub-division of the said title to register a portion measuring (¼) quarter of an acre in the name of the Defendant and the balance in the name of the Plaintifi. 4) In default of (3) above, the Deputy Registrar of this Court shall execute all the relevant documents on behalf of the Plaintifi and the Land Registrar Busia and County Surveyor Busia shall proceed accordingly notwithstanding the absence of the original title deed to the land parcel No North Teso/Kocholia/1950. 5) The Defendant shall meet the costs of the sub-division and registration. 6) Thereafter, the Defendant, his agents, servants, family and all those claiming under him shall be permanently injuncted from interfering with the portion registered in the name of the Plaintifi and similarly, the Plaintifi shall be permanently injuncted by himself, his servants, agents and all those claiming under him from interfering with the portion registered in the name of the Defendant. 7) The Defendant shall be granted vacant possession of the (¼) quarter acre out of the land parcel No North Teso/Kocholia/1950 registered in his name. 8) In sub-dividing the land parcel No North Teso/Kocholia/1950, the Land Registrar and County Surveyor Busia shall ensure that as much as possible, that portion falls within what the Defendant currently occupies. 9) The Plaintifi shall pay the Defendant the sum of Kshs.17,800 being the value of the damaged crops together with interest from the date of filing this suit. 10) The parties shall each meet their own costs of the suit and counter-claim. BOAZ N. OLAO JUDGE 26TH FEBRUARY 2026 JUDGMENT DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 26TH DAY OF FEBRUARY 2026 WITH NOTICE TO THE PARTIES. Right of appeal. BOAZ N. OLAO https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 12

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JUDGE 26TH FEBRUARY 2026 Explanatory notes: This judgment was due for delivery on 11th October 2025. However, following my transfer to Iten Court w.e.f 15th January 2026, I had to prioritize my part heard cases. This has contributed towards the delay in delivering this judgment. The same is registered. BOAZ N. OLAO JUDGE 26TH FEBRUARY 2026 BUSIA ELC NO. 143 OF 2014 – JUDGMENT Page 9 of 9 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1094/eng@2026-02-26 13

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