Koringura v Tingauko & another (Environment and Land Case E013 of 2023) [2026] KEELC 3340 (KLR)

3. In particular, the plaintiff avers that from May to August 2023, the defendant continued massive destruction on the land by intera lia grazing cattle and goats, which was assessed on 14/8/2023 at Kshs. 1,510,880/=, by the area Agricultural Officer. 4. The plaintiff contends that despite being warned by the Land Adjudication and Settlement Officer to stop his acts of trespass, the defendant has continued to interfere with the plaintiff’s quiet possession and use of the land, hence this suit. 5. The defendant opposed the suit through a statement of defence and counterclaim dated 17/4/2024. He averred that the recording of the plaintiff as the owner of the suit land was procured through underhand dealings and or collusion with the 2 nd defendant to the counterclaim. 6. The defendant averred that the plaintiff is not a native of Kangerus Sub-location, which is ancestral land of the Sabaot ethnic community, or entitled to the suit land, which, from pre-colonial times, belonged to his family members, and that most of his ancestors were buried therein. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 2

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7. The defendant averred that the plaintiff had allegedly used his influence in government to forcibly enter the suit land, with the assistance of senior police officers and the 2nd defendant in the counterclaim. 8. The defendant averred that the plaintiff is a Pokot, who do not see eye to eye with the Sabaot, to perpetuate the outdated acts of aggression of the Pokot, by unlawfully getting registration of the suit land to evict him from the land. 9. The defendant denied that the plaintiff had been in possession of or held any right to possess or own the suit land, which, to the contrary, he insisted that it belonged to his ancestors as community land. The defendant denies that he has interfered with, encroached, and or illegally built houses on the suit land. 10. Further, the defendant averred that he is a native, living on the suit land, which until 1970, formed the territory of the Republic of Uganda, and was entirely occupied by his Sebei (Sabaot) community, and not the Pokot community. 11. The defendant averred that the plaintiff had used his position as a field manager of Kacheliba National JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 3

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Government Constituency Development Fund for Kacheliba Constituency to convert the suit land unlawfully and create a ranch therein. 12. The defendant averred that the plaintiff has also used his economic and leadership advantage to intimidate the defendant and his own relatives over contrived, at the time and made spurious allegations of trespass to land. 13. The defendant averred that the plaintiff seeks to irregularly acquire the suit land with the assistance of the 2nd defendant, with whom the defendant has partly farmed and grazed their herds of cattle for many decades, since his birth thereon. 14. Further, the defendant averred that all the trees and crops on the suit land belonged to him or to his relatives, who also reside on the vast suit land. 15. The defendant averred that the alleged assessment of damage to the land, as carried out on 1/8/2023, lacks merit, for there were no such crops on the suit land at the time. The defendant termed the photos attached to the report as depicting his and the relatives' plants, and not the plaintiff's. 16. The defendant averred that the plaintiff lacks a basis to demand the demolition of his home, lawfully built JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 4

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on the suit land, as an attempt to unconstitutionally and statutorily deny him ownership of ancestral land. 17. By way of counterclaim, the defendant described himself as a Sabaot tribesman of the Sebei subtribe residing and carrying out business at Kamakol village, Kanyerus Sub-location, North Pokot Subcounty, which land was initially part of the Republic of Uganda until 1970, falling within the Bukwa District of Eastern Uganda. The plaintiff in the counterclaim averred that the 1st defendant is a native of Pokot and a resident of Katikomor Sublocation, Kanyarkwat Location, West Pokot County, which borders Trans Nzoia County. 18. The plaintiff Kapchemandan averred that he belongs to the clan of the Sebei (Sabaot) community, while the 1st defendant belongs to the Cheporok clan of the Pokot ethnic community. It is averred that the suit land is in Kapulio Location, which lies along the Kenya and Uganda border, as land entirely inherited by the Sebei community. 19. The plaintiff in the counterclaim averred that the plaintiff in the main suit and his family were never citizens of Ugandan nationality, before 1970, when Kanyerus Sub-location became part of the Kenyan JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 5

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territory, after the adjustment of the territorial boundary. 20. The plaintiff in the counterclaim averred that Kanyerus Sub-location at the time had experienced serious tribal conflict between the Sebei (Sabaot) and the Pokot communities, due to constant cattle raids or rustling, which could not have allowed any peaceful co-existence between the two communities. 21. The plaintiff averred that his family has lived on the suit land for centuries, and that some of his ancestors are buried thereon. The plaintiff avers that the boundary, which was formally placed in the adjudication section in the Republic of Kenya, was settled in 1980. 22. It is averred that in 2016, the primary plaintiff allegedly lodged a spurious claim on a large track of land mainly occupied by his family members, used for pastoralism and farming, and used certain contrived proceedings before elders dated 26/3/2016 as a basis. 23. The plaintiff averred that since 2016, the 1st defendant has been getting the help of provincial administrators and senior police officers to irregularly JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 6

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and illegally take possession of the suit land for his clan by asserting ownership thereof. 24. The plaintiff averred that he had lodged an objection to the adjudication register for the Kanyerus Adjudication Section in respect to Parcel Nos. 618 and 619, vide case Nos. 169 and 170, which were dismissed by a ruling delivered on 11/7/2023 by the 2nd defendant. 25. The plaintiff averred that in hearing and determining the objection, the 2nd defendant had failed to take into account the relevant historical background and the hostilities between the two tribes alluded to above. 26. Further, the plaintiff averred that at the hearing the 2nd defendant allegedly rejected or overlooked the evidence of his ancestors and clan members, or the significance of the said history, hostilities, and the burial sites of his ancestors in the dispute, and how the primary plaintiff had no footprints by way of ancestry on the suit land, by virtue of history and therefore, the attempt to use aggression as well as influence to acquire the registration on the suit land belonging to persons who do not belong to the Pokot community. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 7

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27. The plaintiff termed the 2nd defendant’s decision as entirely made on and to perpetuate and sanitize the injustices that the plaintiff has suffered in the hands of senior officers of the police and national government, as well as the members of the Pokot council of elders, to award the primary plaintiff the suit land. 28. The plaintiff averred that the defendant, out of desperation and last resort, to save his land, requested the Pokot council of elders to perform a famous lethal customary ritual called “muma” to prove his claim over the suit land, which the primary plaintiff, despite three invitations, failed to submit to. 29. The defendant, as the plaintiff in the counterclaim, prayed for: (a) Declaration that the plaintiff, not being Sebei (Sabaot) natives who were occupants of the community land, is not entitled to a portion thereof. (b) Cancellation of registration of the primary plaintiff as proprietor of the suit land, and the same be registered under his name. (c) Permanent injunction restraining the primary plaintiff, his agents, servants, or workers, from using the police or other government officers to intimidate or harass the defendant in relation to the occupation of the suit land. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 8

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(d) Declaration that the decision by the 2 nd defendant dated 11/7/2023, did not consider the independent facts and evidence, that the plaintiff was an imposter not entitled to the suit land, which was declared by Notice Reference No. LA/WP/46/166 dated 28/12/1977, which incorporated parts of the Republic of Uganda into the Kenyan territory. (e) An order that the decision by the 2nd defendant dated 11/7/2023 dismissing the objection to the Adjudication Register be set aside. (f) An order directing the 2nd defendant to cancel the registration of the primary plaintiff as the proprietor of the suit land and, in its place, the 1st defendant be registered as the owner. 30. The suit is opposed by the 2 nd defendant through a statement of defence to the counterclaim dated 2/12/2025. 31. The 2nd defendant averred that Parcel No. 618 Kanyerus Adjudication Section was given to the defendant herein through the process of adjudication, which was to happen in 1977, but due to the insecurity at the time, the process of adjudication was procedurally carried out in 2020, as per the provisions of the Land Adjudication Act, Cap 284, Laws of Kenya. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 9

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32. The 2nd defendant averred that the plaintiff was aware of the adjudication process, under which any aggrieved parties were given 14 days to appeal to the land committee, but the plaintiff never appealed. The 2nd defendant avers that after publication of the adjudication register, the plaintiff filed an objection which was heard and dismissed, and the plaintiff did not appeal within 60 days to the Cabinet Secretary, as required by law. 33. Through a reply to the defence and defence to the counterclaim dated 30/9/2024, the plaintiff denied any alleged underhand dealings involving him and the 2nd defendant to the counterclaim. 34. The plaintiff averred that the two clans mentioned by the defendant are both subtribes of the Soliongin clan of the Pokot tribe, to which he and the defendant belong. 35. The plaintiff averred that he remains a native of Kanyerus Sub-location Kopolo Location, with the defendant being his neighbour, whose family and he have never owned the suit land, but instead own Parcel Nos. 597, 802, and 555, situated in Makany, Chemakiwach, and Kolomoi, respectively, and that JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 10

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the defendant used to stay or live on Parcel No. 802 and not in the suit land. 36. The plaintiff averred that the defendant cut down trees and the cooking area on the suit land belonging to the plaintiff’s father and mother, hence he conducted a ceremony known as “sapana’ as per the photographs herein. 37. By way of defence, the plaintiff, as the 1 st defendant to the counterclaim, averred that the entire area where the suit land is situated is not entirely inhabited by the Sebei community; the defendant’s ancestors have never lived or been buried there as alleged or at all, since his deceased parents were buried at Kapenguria cemetery, Loputik, and other relatives at Chemakiwach, Komolai, and Rionotum. 38. The plaintiff admitted that he had lodged a claim in 2016 against the defendant on account of family encroachment and trespass to the suit land, whose ruling by the 2nd defendant falsely and erroneously held that the defendant was the rightful owner. The plaintiff avers that the defendant never appealed against the Pokot Council of Elders’ decision that he was the lawful owner of the suit land. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 11

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39. Similarly, the plaintiff averred that after the objection was dismissed, 60 days were given to appeal, but he never appealed, meaning that he was satisfied with the decision to live by it. The plaintiff averred that the issues raised in the counterclaim ought to have been raised by way of an appeal by the defendant. 40. The plaintiff denied that he had misused the police or the national government officers to acquire ownership of the suit land. The plaintiff avers that instead of the defendant following the right process, he is the one who refused the “muma.” 41. At the trial, Wilson Koringura testified as PW1. He relied on a witness statement dated 30/9/2023 as his evidence-in-chief. PW1 told the court that he is the registered owner of Parcel No. 618 Kanyerus Adjudication Section, which the defendant or his agents have encroached on, causing massive destruction on his land since May 2023. 42. PW1 told the court that after the destruction on 11/8/2023, Suam Ward Agricultural Officer assessed the damage on 14/8/2023, and that despite a decision of the Land Adjudication and Settlement Officer, the defendant continued to interfere with the suit land, hence this suit. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 12

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43. PW1 relied on exhibits, namely, a demand letter dated 9/9/2023 as P. Exhibit No. (1), photographs as P. Exhibit No. 2(a)-(d), crop damage assessment report dated 15/8/2023, P. Exhibit No. (3), an adjudication register, as P. Exhibit No. (4), and a letter dated 31/8/2023 as P. Exhibit No. (5). 44. In cross-examination, PW1 said that he was a native of Kanyerus Sub-location from the Cheporok Sub-clan of the Pokot tribe, while the defendant is from the Sebei Sub-clan of the Kapchemandan clan, which clans are scattered all over West Pokot, having migrated from the Mt. Elgon area. 45. PW1 said that all his close relatives have bought land and occupied the area within and outside the native land in Kanyerus, which was initially ancestral, but was subjected to the land adjudication process. 46. PW1 denied that the suit land before 1977 was exclusively occupied by the Sebei Sub-clan, to which the defendant belongs, or that it could not be owned, or adjudicated in favour of a person not belonging to the Sebei clan. 47. PW1 denied that one could only buy, own, or occupy the suit land with the consent of Sebei Sub-clan members, since the area is occupied by several clans JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 13

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of different tribes, despite the initial cases of insecurity from cattle raids, before the adjudication process commenced. 48. PW1 said that other than the Pokot Council of Elders, who handled the dispute, the same was also subjected to adjudication proceedings under Cap 284, which did not attract a ministerial appeal. PW1 said that he has a permanent homestead in the suit land, which is taken care of by his uncle. 49. Fredrick Liman Loyatum and John Ngoris testified as PW2 and PW3. They relied on witness statements dated 30/9/2024 as their evidence-inchief. PW2 told the court that he was the chairman of Kapenguria Council of Elders, which on 16/3/2016, handled a land dispute over Parcel No. 618 Kanyerus Adjudication Section, at the chief’s office, after which it visited the suit land, where both the plaintiff and the defendant showed them the disputed land. 50. PW1 said that later on, the county chairman handled the issue where each of the two disputants was again shown their respective portion, confirming the earlier decision for the defendant to vacate the plaintiff’s land, and move to his land at Makany, Kamalei, and Chamakwach, which, to date, he has failed to vacate. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 14

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51. PW3 on his part confirmed that he was one of the land adjudication committee members in 2018, who heard the land disputes over Parcel No. 618, arriving at a decision that it belongs to the plaintiff, since the defendant’s parcels of land are situated elsewhere in Makany, Kamalei, and Chemakiwach areas. 52. PW2 and PW3 confirmed that initially, they had faced tribal clashes between the Sebei and Pokot communities, who, after land adjudication and the peace initiatives, have all settled in the area. PW2 said that the Sebei community from Uganda has been assimilated in Kenya, following the settlement of the boundary dispute between the two countries. PW2 denied that the area land belonged to an exclusive tribe, or that the land adjudication process was discriminatory or unfair to either of the members of the two tribes or subclans. 53. PW3, however, confirmed that the defendant has been on the plaintiff’s land for over ten years, following disarmament after the tribal clashes. Unlike other people who had been displaced from their initial settlement areas, he refused to return to his land. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 15

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54. Martin Odhiambo Okuta testified as DW1. As the Land Adjudication and Settlement Officer, West Pokot, DW1 relied on a witness statement dated 9/2/2026 as his evidence-in-chief. 55. DW1 also relied on the following exhibits, namely: a demarcation record as D. Exhibit No. (1), sketch map as D. Exhibit No. (2), an adjudication record dated 14/10/2021 as D. Exhibit No. (3), an adjudication register dated 21/9/2023 as D. Exhibit No. (4), and lastly, objection proceedings and decision Nos. 169 and 170 of 17/5/2013, regarding Parcels No. 618 and 619 delivered on 11/7/2023 as D. Exhibit No. (5). 56. DW1 told the court that he has been a Land Adjudication and Settlement Officer for the area, which is occupied by several tribes, initially part of Uganda until 1977, whereafter it was declared an adjudication area. DW1 said that the process of adjudication involved establishing who had existing rights over the land, through the land adjudication committees, drawn from the elders and area residents, who would handle and arbitrate any land disputes arising therefrom. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 16

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57. DW1 confirmed that the plaintiff was given consent to file this suit. DW1 said that the adjudication process over the suit land was still ongoing, as the certificate of finality is yet to be issued. DW1 confirmed that the defendant was not issued with any consent to file the counterclaim. 58. Further, DW1 denied that there was any irregularity, illegality, or underhanded dealings in recording the plaintiff as the owner of the suit land. 59. DW1 said that all objections raised were procedurally handled by the relevant organs in the land adjudication process, even though the defendant failed to file a minister’s appeal if, at all, he was aggrieved by the adjudication register objection decision. 60. DW1 said that the defendant failed to lodge any complaints on the manner in which the adjudication process was undertaken, either within the framework set out under the Land Adjudication Act or with the criminal investigation department, to investigate any alleged fraud, bias, or collusion concerning his duties under the Act. Again, DW1 said that he accounted for all the relevant adjudication processes and was equally fair to all the subtribes in the area. He denied JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 17

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discriminating against any of the tribes occupying the suit land when determining their existing rights. 61. Angortoreng Tingauko testified as DW2. He relied on a witness statement dated 11/7/2024 as his evidence-in-chief. DW2 told the court that he belongs to the Kapchemandan clan of the Sebei (Sabaot) community, while the plaintiff belongs to the Cheporok clan of the Pokot tribe. 62. DW2 said that the suit land belongs to his family, where they used to live until 1970, as forming part of Uganda territory exclusively occupied by the Sebei people, until the territorial boundary was settled between the two countries. 63. DW2 said that the plaintiff, using his influence as a field manager of the National Government Constituencies Development Fund (NGCDF), unjustly and unlawfully obtained adjudication of the land in his favour, yet he and his relatives have for many decades been occupying, grazing, and farming on the suit land. DW2 said that the plaintiff and his family were never historically Ugandan citizens before 1970 to be entitled to the suit land, after the boundary was re-adjusted and settled on the Kenyan side. Similarly, DW2 said that the Sub-location had historically JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 18

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witnessed serious tribal conflicts between the Sebei and Pokot tribes, due to constant cattle raids or rustling, which did not allow co-existence until it was formally declared an adjudication section in 1980. 64. DW2 said that in 2016, the plaintiff lodged a spurious claim over a large track of land then mainly occupied by his family members, as pastoralists as well as farmers, and used the clan council elders’ decision on 26/3/2016 to sanitise the claim. DW2 said that with the help of senior police officers and national government administrators, PW1 was able to take possession of the land from them, irregularly. 65. DW2 said that he then fled an objection to the Adjudication Register over Parcel Nos. 618 and 619, vide Case Nos. 169 and 170, whose objections were dismissed by the 2nd defendant on 11/7/2023. 66. DW2 said that the decision by the 2nd defendant did not take into account the facts and the correct ground position on the ground, hence perpetuating injustices his family has suffered in the hands of the police, Pokot Council of Elders, and the provincial administration in awarding the plaintiff his land. 67. DW2 termed the plaintiff a dishonest man who used a dishonest scheme to unlawfully acquire or grab his JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 19

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land in an extremely remote place not inherited by his tribe, to establish a ranch for himself. DW2 said that his request for “muma” to prove land claims was objected to by the plaintiff despite arrangements for the same by the elders. 68. DW2 said that the plaintiff has come to court to sanitize his false claim to the suit land, relying on a crop assessment report, which is suspect, and capture plants belonging to him and a homestead set up on his ancestral land. DW2 did not produce any exhibits. 69. DW2 admitted that he has lived on Parcel No. 802 Kanyerus Adjudication Section for 20 years, though he retains a residence in Parcel No. 618. DW2 confirmed attending the meeting held on 26/3/2016 that resulted in subdividing the suit land into four portions. DW2 confirmed not having OB reports or complaint documents over the alleged harassment by senior police officers and the national government administration officials regarding the suit land. 70. DW2 confirmed that he did not file a minister’s appeal against the 2nd defendant’s decision made on 11/7/2023, for he was not given such an opportunity. DW2 blamed the 2nd defendant for JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 20

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abusing his office to deny him the suit land in favour of the plaintiff during the adjudication process, and for failing to capture all the available historical data on his ancestry in relation to the suit land. 71. Michael Chemasuet testified as DW3. He relied on a witness statement dated 2/3/2026 as his evidencein-chief. DW3 told the court that he is one of the beneficiaries of the late Charles Chemasuet and that the defendant is a family friend as well as a neighbour in Kanyerus Sublocation, whose land lies along the Kenya-Uganda border, entirely occupied by the Sebei community to which the defendant belongs, and has lived on since 1970. 72. DW3 said that the plaintiff, who is a Pokot of the Cheporok clan, used his influence to unlawfully and irregularly acquire the land to create a ranch thereon, with the assistance of both senior police officers, who would constantly intimidate and or harass the defendant as well as his relatives, alleging acts of trespass and encroachment to the suit land as well as influencing the 2nd defendant to get a favourable decisions against the defendant. 73. DW3 said that the above acts have deprived the defendant of his ancestral land, which initially was JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 21

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part of Uganda territory occupied by the Sebei community. DW3 said that out of tribal clashes, the Pokot and Sebei communities couldn't co-exist, and for the plaintiff to lay any claim on the suit land for many centuries occupied by the Sebei community before the adjudication process. 74. Further, DW3 said that the 2nd defendant did not consider all those factors while dismissing the defendant’s objections Nos. 169 and 170 regarding Parcel Nos. 618 and 619, hence the counterclaim should be defendant allowed. has been DW3 confirmed subjected to that the intimidation, harassment, and injustice by the named officers with a view to helping the plaintiff unlawfully acquire his ancestral land. DW3 said that from his visits to the land adjudication offices, as well as his late father, he was able to gather the facts in this suit and the history of the land parcels. 75. DW3 said that his father had also filed an adjudication register objection against the plaintiff over Parcels Nos. 619, 1092, and 826 as Objection Nos. 128 and 126, regarding a boundary which was heard on 8/10/2024, leading to a ruling on 9/10/2024. DW3 confirmed that no complaints were JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 22

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lodged against either the plaintiff or the 2 nd defendant with either the Ethics and Anti-Corruption Commission (EACC), the Criminal Investigation Department, or the Lands Minister over misconduct. 76. The plaintiff relied on written submissions dated 8/4/2026, isolating three issues for the court’s determination. It is submitted that the plaintiff has proved that he owns Parcel No. 618 Kanyerus Adjudication Section in West Pokot, through documentary and independent witnesses such as PW2 and PW3, whose existing rights have remained unchallenged after the adjudication register objection was heard and determined without an existing minister’s appeal. Reliance is placed on Section 26(1) of the Land Adjudication Act, and in Njagi -vsThaara Civil Appeal No. E126 of 2022 [2025] KECA 367 [KLR]. 77. The plaintiff submitted that, in the circumstances, he is lawfully entitled to an order of eviction for being the absolute owner of the suit land as provided under Sections 24 and 25 of the Land Registration Act. Reliance is placed on Maina -vs- Waweru & Others [2025] KEELC 791 [KLR], Mwangi -vs- Njaria [2022] KEELC 13564 [KLR], Mbogo -vs- Kubai JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 23

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[2026] KEELC [KLR], and Loyelei -vs- Ekeno & Others [2025] KEELC 4923 [KLR]. 78. The plaintiff submitted that he has discharged his burden under Sections 107(1) and 109 of the Evidence Act to be entitled to the reliefs sought. Reliance is placed on James Muigai Thungu -vsCounty Government of Trans Nzoia & Others [2022] eKLR, and in Ngumbao -vs- Kenga & Another [2023] KEELC 20975 [KLR]. 79. The 2nd defendant relied on written submissions dated 21/4/2026, isolating three issues for determination. It is submitted that the defendant’s counterclaim seeks to invalidate or challenge a decision by the 2nd defendant outside the framework set out in the Land Adjudication Act. 80. The 2nd defendant submitted that the evidence by DW1 was clear that the decision made on 11/7/2023 was not challenged through a minister’s appeal. Therefore, the 2nd defendant submits that this court lacks the jurisdiction to entertain and set aside that decision in the manner sought by the defendant. reliance is placed on Owners of the Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd [1989] KLR 1, Amarnath (Suing on behalf of the estate of the JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 24

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late Amarnath Gupta) -vs- Kazungu & Others, Civil Appeal No. E033 of 2021 [2023] KECA 128 [KLR], citing with approval Julia Kaburia -vsKabeere & Others [2007] eKLR. 81. The 2nd defendant submitted that the counterclaim was also filed without the requisite consent under Section 30(1) of the Land Adjudication Act. Reliance is placed on Nthuku -vs- Munjuri & 3 others [2023] KEELC 15964 (KLR). 82. The 2nd defendant submitted that the court’s role is limited under the Land Adjudication Act as held in Tobias Ochola Osidi & Others -vs- Cyprian Otieno Ogola & Others [2013] eKLR.Further, the 2nd defendant submitted that the suit offends the doctrine of exhaustion of remedies. Reliance is placed on Speaker of the National Assembly -vsKarume [1992] KLR 21, Geoffrey Muthiga Kabiru & Others -vs- Samuel Munga Henry & 1756 Others [2015] eKLR, Moses Barkutwo & 3 others -vs- District Land Adjudication & Settlement Officer [2021] KEELC 4161 [KLR], and James Kimisoi & 2 others -vs- Director Land Adjucation & 5 others [2021] KEELC 4158 (KLR) JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 25

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and Saha -vs- Chigulu [2024] KEELC 6004 (KLR). 83. The 2nd defendant submitted that the defendant has failed to discharge his burden under Sections 107 and 109 of the Evidence Act regarding the allegations made against the Land Adjudication Officer, since a complaint was not lodged with the offices of the Director of Land Adjudication, EACC, Public Service Commission, or any other relevant statutory bodies. 84. The 2nd defendant urged the court to find the counterclaim unmerited under the circumstances. The court has carefully looked at the pleadings, evidence tendered and the written submissions. 85. The issues calling for my determination are: (1) Whether the plaintiff has proved trespass to the suit land by the defendant. (2) Whether the defendant is justified in remaining on the suit land, on a claim that it is community land, or that it is held in trust for his family and himself. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 26

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(3) Whether the defendant holds any existing rights to the suit land, in the absence of a Minister's appeal. (4) Whether the defendant has established any fraud, collusion, or irregularity in the manner in which the plaintiff became the registered owner of the suit land. (5) Whether the plaintiff is entitled to the reliefs sought in the plaint. (6) Whether the defendant is entitled to the reliefs sought in the counterclaim. (7) What is the order as to costs? 86. The plaintiff claims that he is the recorded owner of the suit land, whose existing rights have been confirmed under the Land Adjudication Act. The suit land is now threatened with encroachment, wanton destruction, and illegal developments thereon by the defendant, their agents, servants, or employees, without a bona fide stake, interest, or right to the suit land. 87. Trespass refers to the violation of the right to use, occupy, and or develop private land without the consent, authority, or justification from the owner. In Mohamed -vs- Board of Management Pentrose Community School & another (Civil Appeal E136 of 2023) [2026] KECA 501 (KLR) (13 March 2026) (Judgment), the court held that the tort of trespass as provided under Section 3(1) of JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 27

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the Trespass Act occurs where any person without justifiable excuse enters or remains or erects any structures on or cultivates, tills or grazes stock or permits stock to be on private land without the consent of the occupier. The court cited Section 2 of the Trespass Act, which further defines private land as land owned or occupied by any person by virtue of a freehold title, a certificate of ownership, or a lease. The court also cited Clerk and Lindsell on Torts, 21st Edition, page 1345, that trespass occurs when there is an entry onto another person's land, without their consent or lawful justification. 88. Therefore, the court held that trespass is established by showing evidence of physical entry onto the land without the owner's permission or without reasonable or lawful excuse. Further, the court held that to found a claim of trespass, the person alleging the trespass must demonstrate a valid proprietary interest in the land in question, as held in Church Commissioners for Kenya of the Anglican Church of Kenya -vsWayuga (Civil Appeal 111 of 2018) [2024]. KECA 1048 (KLR). 89. Parties are bound by their pleadings, and issues for the court’s determination flow from those pleadings . JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 28

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Both the plaintiff and the defendant are laying claim to the same parcel of land falling within an adjudication section. It is trite that where there are competing claims on one piece of land, each party is under an obligation to establish the root of its title by showing that the acquisition was legal, formal, regular, and free of any encumbrances, including those not listed on the register. See Munyu Maina vs- Hiram Gathiha Maina [2013] eKLR. 90. The root of the title must have a clear origin of ownership, be clear, and should not cast any doubt as to the process through which it was obtained, as held in Presbyterian Foundation -vs- Kibera Siranga Self Help Group Nursery School (Civil Appeal 64 of 2014) [2023] KECA 371 (KLR) (31 March 2023). 91. In this suit, the defendant is casting doubts as to the origin, basis, procedure, and legality of the manner in which the plaintiff became the recorded owner of the suit land. The plaintiff has produced documents showing how he became the recorded owner of the suit land. He also called the recording authority, the land adjudication officer, who dwelt JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 with the 29

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adjudication register objection that the defendant had filed. 92. The land adjudication officer, in both the statement of defence and in evidence before this court, has denied the alleged irregularities, illegalities, collusion, or misrepresentation of facts by the plaintiff in procuring the record of existing rights. 93. Fraud and illegality must be specifically pleaded and proved on a balance higher than in ordinary suits. Fraud, collusion, or illegality cannot be inferred from the pleadings. Mere allegations without credible evidence to show or to lay a basis that the acquisition of the title was irregular, unprocedural, out of misrepresentation, fraudulent, or through a corrupt scheme is not enough, as held MFI Office Solutions -vs- Landlords Limited & 3 others [2025] KECA 1200 (KLR) and Arthi Highway Developers Limited -vs- West End Butchery Limited & 6 others [2015] eKLR. 94. The plaintiff’s case is that the documents ascertaining his existing rights on the suit land are not subject to any appeal under the Land Adjudication Act. Therefore, the defendant has no justification to encroach, trespass, or commit acts of JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 30

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destruction on the suit land. The plaintiff urges the court to issue eviction orders as per the consent to sue granted to him by the land adjudication officer before this court. The plaintiff terms the counterclaim by the defendant as incompetently filed before a court lacking jurisdiction to hear and determine disputes on land subject to the Land Adjudication Act. 95. Jurisdiction is everything. Without it, a court has to lay down its tools. Ascertainment of existing land rights for unregistered land is governed by the Land Adjudication and Consolidation Acts. Without consent, courts cannot entertain suits in a declared adjudication section. The main purpose of land adjudication is to ascertain and record existing rights. During the land adjudication process, persons with rights or interests are subjected to the process, which has an elaborate inbuilt dispute resolution mechanism, such as the arbitration board, committee objections culminating in the Minister’s appeal and to the court, as set out in Sections 19(2), (3), 21(3), 26, and 29 of the Land Adjudication Act. 96. During the adjudication process, the court plays or exercises limited power to intervene, as held in Tobias Achola Osindi & 13 JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 others -vs- 31

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Cyprianus Otieno Ogalo & 6 others [2013] eKLR. In Bhaijee & another -vs- Nondi & another (Civil Appeal 139 of 2019) [2022] KECA 119 (KLR) (18 February 2022)(Judgment), the court observed that the jurisdiction of the court to hear and determine disputes on land falling under the Land Adjudication Act and the Land Consolidation Act is restricted until all the dispute mechanisms therein are exhausted. The plaintiff herein commenced the suit pursuant to a land adjudication officer's consent to file the same. 97. Pursuant to that consent, the plaintiff has told the court, and which the defendant in the main suit has not disputed, that after the adjudication register objection ruling, the 1st defendant did not file and serve a Minister’s appeal within 60 days as provided under Section 29(3) of the Land Adjudication Act. The plaintiff and the 1st defendant in the counterclaim have urged the court to decline the jurisdiction to entertain the primary defendant’s counterclaim as an invitation to reopen the adjudication proceeding through the back door. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 32

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98. In Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) -vs- Kazungu (supra), the court held that the Act is clear that any aggrieved party by a decision made under Section 26 of the Land Adjudication Act must follow the procedure under Section 29 and appeal to the Minister. Therefore, in the absence of that, the appellant could not reopen the case and challenge it or attempt to undo the process he participated in using a process not provided or allowed by the law. 99. The defendant in the main suit has also attempted to file a counterclaim without the consent to sue. In Julia Kaburia -vs- Manene Kabeere & 6 Others [2007] eKLR, the court held that Section 30 of the Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights in an adjudication section. 100. The court also held that under Section 30(1) & (2) thereof, the court's jurisdiction is ousted once the adjudication process begins until the adjudication register is made final. The court held that the consent envisaged in Section 30 thereof, to institute or continue, is not a consent to file a suit challenging the decision of the land adjudication officer on the JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 33

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merits of his decision, but rather to file a suit or continue with a suit against a person with a competing claim on land under adjudication. 101. In Njagi -vs- Thaara [2025] KECA 367 (KLR), the court cited with approval Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) -vs- Kazungu (supra), and held that the power to ascertain and demarcate trust land under the Land Adjudication Act and Land Consolidation Act was donated to the land adjudication officer and the land adjudication committee, leaving the court with only supervisory powers, which do not include excising or reversing adjudicated portions. 102. This court, guided by the forgoing binding decisions finds that the primary defendant’s statement of defence and counterclaim not only lack merits and but is also incompetent by purportedly seeking that the court determines and holds that the primary defendant has or holds a superior existing rights to the suit land, which the plaintiff and the 1 st defendant colluded to defeat and fraudulently caused the suit land to be recorded in the name of the plaintiff, oblivious of the alleged glaring existing or historical interests. Since the court lacks jurisdiction JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 34

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to hear and determine or declare ownership over land falling within an adjudication section, it goes without saying that the defendant has shown no justification or reason to deny the primary plaintiff full use, possession, and occupation of the suit land. 103. This court proceeds to find the reliefs sought in line with Order 40 Rule 1 of the Civil Procedure Rules, Article 40 of the Constitution, and Section 63(e) of the Civil Procedure Act merited. The plaintiff is at liberty to issue a notice of eviction against all persons in occupation of the suit land, to vacate within 90 days from the date of service of the notice; in default, they shall be forcibly evicted at their costs and expenses, by a licensed auctioneer. 104. Costs of both the primary suit and the counterclaim to the plaintiff. 105. Orders accordingly. Judgment dated, signed, via JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 Microsoft 35

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Teams/Open Court at Kitale on this 3rd day of June 2026. HON. C.K. NZILI JUDGE, ELC KITALE. Judgment delivered via Microsoft Teams/Open Court at Kitale on this 3rd day of June 2026. In the presence of: Court Assistant - Matui Mr. Nyamu for the plaintiff Mr. Kraido for the 1st defendant No appearance for the Attorney General. HON. G.M. GITONGA JUDGE, ELC KITALE. JUDGMENT: KITALE ELC NO. E013 OF 2023 – D.O.D. – 03/06/2026 36

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