Kinguta & 3 others v Ndisya & 4 others (Environment and Land Petition 3 of 2019) [2026] KEELC 1205 (KLR)

iv. 2. Threatening the 3rd petitioner with dire consequences in default of vacating LR No. Makueni/Kitundu/4957; contravened the petitioners fundamental rights and freedoms as guaranteed by the Constitution of Kenya 2010. b. General damages. c. An order of permanent prohibition against the Respondents jointly and severally prohibiting them from harassing, arresting and/or in any other manner interfering with petitioners’ personal liberty and the 3rd petitioner’s proprietorship of LR No. Makueni/Kitundu/4957. d. The petitioners to be awarded costs of this petition. e. The honourable court to be pleased to make any orders or directions within its jurisdiction. The 1st and 2nd Respondents filed a cross petition dated 22nd July, 2019 in which they sought the following reliefs: i. A declaration that the 1st Respondent is the sole and registered owner of land parcel No. Makueni/Kitundu/5291. ii. A declaration that the petitioners have jointly and severally trespassed to the 1st Respondent’s land parcel number LR No. Makueni/Kitundu/5291. iii. An order directed at the 3rd Respondent to demolish any structures he has erected on the 1st Respondent’s piece of land namely LR No. Makueni/Kitundu/5291 and to restitute the land in its original form before the said construction. iv. A permanent injunction order to issue to restrain the petitioners, their agents and or servants from interfering constructing, alienating or otherwise howsoever dealing with or transferring the 1st Respondent’s land namely LR No. Makueni/Kitundu/5291. v. Costs and interests. vi. Any other relief this honourable court deems fit to grant. 3. On 19th April, 2023 the court allowed the petitioners to withdraw their petition with costs to be agreed upon by the parties or taxed by the taxing oficer of this court. The cross petitioners were granted liberty to proceed with their cross petition. 4. On 23rd September, 2025, the 2nd cross petitioner gave evidence on his own behalf and on behalf of the 1st cross petitioner. The 1st Petitioner stated that he had no evidence to call. He stated that he was relying on a replying afidavit sworn on 1st September, 2023. Cross Petitioner’s evidence 5. The 2nd cross petitioner testified that he is a retired chief and a brother to the 1st cross petitioner. He stated that the 1st cross petitioner is the registered owner of LR No. Makueni/Kitundu/5291 which he purchased from Robert Mutua kitungu (suit property). On 10th March, 2016, the 1st and 4th petitioners trespassed into the suit property and uprooted sisal plants marking the boundary. On 11th March, 2016 the 1st and 4th Petitioners admitted at Kikima police station that they had uprooted the sisal boundary marking the suit property and they agreed to reinstate the same which they did. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1205/eng@2026-02-26 2

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6. He stated that the 3rd petitioner has since continued to and has since trespassed into the 1st cross petitioner’s land and commenced construction on it and that the petition which has since been withdrawn was a cover up for the trespass. Parties submissions 7. The cross petitioners filed their submissions dated 30th October, 2025. The Respondents in the cross petition did not file any submissions. Submissions of Cross Petitioners 8. The cross petitioners submitted that they had proved that the suit property belongs to the 1st cross petitioner and that they had proved that the 3rd petitioner had trespassed on to the suit property and erected structures on it. Analysis and Determination 9. I have carefully considered the evidence adduced by the cross petitioners as well as the submissions filed. There is no contention that the 1st cross petitioner is the registered owner of the suit property. There is also no contention that LR No. Makueni/Kitundu/4957 is registered in the name of the 3rd Petitoner. These two parcels border each other. There is also on contention that the 1st and 4th Petitioners uprooted the sisal boundary marking the suit property. They rectified what they did as admitted by the cross petitioners. The issue which remains for determination is whether the 3rd petitioner has trespassed on to the suit property. The other issue is on which order should be made on costs. 10. The 3rd petitioner and the 1st cross petitioner who own Makueni/Kitundu/4957 and the suit property respectively are brothers. Their parcels border each other. Apart from production of a photograph of an incomplete house coming up, there was no evidence from a surveyor to confirm that the house was being put up on the suit property. Without evidence of a surveyor, there is no way the court can make a finding that there is trespass or encroachment on to the suit property. 11. There is no evidence which was adduced that after the 1st and 4th Petitioners made good what they had done on 10th March, 2016, they again did any other thing which will amount to trespass. As the cross petitioners have failed to adduce evidence from a surveyor to confirm encroachment, I find that the cross petitioners have failed to prove their cross petition which is hereby dismissed with costs to the petitioners. JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 26TH DAY OF FEBRUARY, 2026. .............................................. HON. E. O. OBAGA JUDGE In The Presence Of: Mr. Muumbi for cross petitioners Ms. Munyao for Mr. Muumbi for Petitioners Court assistant Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1205/eng@2026-02-26 3

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