Kerich v Menjo & 6 others (Environment and Land Case 46 of 2018) [2026] KEELC 3605 (KLR)

1. The Plaintiff commenced the present proceedings vide the Plaint dated 8th June, 2018 which Plaint was amended on 14th February, 2024. 2. The Plaintiff avers that he is the son and administrator of the estate of Benjamin Kibiwot Chesulut (Deceased) the registered owner of land parcel No. Kericho/Merigi/429 which land measures 6.4 Ha. 3. The Plaintiff also avers that Benjamin Kibiwot Chesulut (Deceased) inherited the said parcel of land from his deceased father one Kiprotich Kutwet. 4. The Plaintiff further avers that on or about 16 th September, 2015, the unprocedurally Defendants illegally, subdivided fraudulently and land parcel No. parcel No’s Kericho/Merigi/429 into land Kericho/Merigi/1254, 1255 1256, 1257, 1258 and Kericho/Merigi/1417 & 1418. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 2 of 56

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5. It is the Plaintiff’s averment that at no time did Benjamin Kibiwot Chesulut (Deceased) subdivide land parcel No. Kericho/Merigi/429. 6. It is also the Plaintiff’s averment that the Defendants have trespassed, encroached and developed portions of the suit parcel of land thereby interfering with their right to quiet and peaceful possession of the suit parcel of land. 7. The Plaintiff sets out the particulars of trespass and fraud and seeks the following prayers; a. A declaration that the Plaintiff’s deceased father is the rightful owner of the original parcel of land known as LR No. Kericho/Merigi/429. b. An order Registrar, directing Bomet to the Land nullify and cancel the purported unlawful and illegal subdivision and registration and issuance Ker/Merigi of title 1254-1258 numbers and Merigi 1417 and Merigi 1418 and reverting -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 3 of 56

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to the original parcel No. Kericho/Merigi/429. (sic) c. An order of permanent injunction as per paragraph 17. d. An eviction order from property LR No. Kericho/Merigi/429 as per paragraph 16. (sic) e. Profits and general damages for trespass. f. Costs of this suit and the interest as (sic) the Court’s rate. g. Any other relief that this Honourable Court may deem suit (sic) to grant. 8. The 1st Defendant neither entered appearance nor filed a Statement of Defence. 9. The 2nd Defendant filed his Statement of Defence on 26 th July, 2018. He denies the averments in the Plaint and states that he took possession of a portion of the suit parcel of land in the year 1970 after purchasing it from Arap Lesigon. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 4 of 56

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10. The 2nd Defendant also states that there has never been any complaint about his possession and therefore the Plaintiff’s allegations in the Plaint are malicious. 11. The 2nd Defendant further states that the Plaintiff intends to evict him. 12. The 2nd Defendant states that the Plaintiff has never occupied the suit parcel of land since the year 1970 and his claim is statute barred. 13. He therefore seeks that the Plaintiff’s suit be dismissed with costs. 14. The 3rd Defendant filed his Statement of Defence on 19 th July, 2018. He denies the averments in the Plaint and states that he and his siblings have lived on a portion of land parcel No. Kericho/Merigi/429 since the year 1969. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 5 of 56

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15. He also states that their deceased mother, one Chepngeno Taplelei Nyonyour (Deceased) purchased a portion of the suit parcel of land from the Plaintiff’s deceased father vide a land sale agreement dated 28th April, 1969. 16. He further states that the Plaintiff has all along been aware of the said land sale agreement and his contentions in the Plaint are malicious. 17. He states that the Plaintiff intends to evict the rightful owners of the suit parcel of land. 18. He states that the Plaintiff’s suit is statute barred as he has never taken any action since the year 1969 and urges the Court to dismiss the suit with costs. 19. The 4th Defendant filed her Statement of Defence on 19 th July, 2016. 20. The 4th Defendant denies the averments in the Plaint and states that she got married on or about the year 1990. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 6 of 56

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21. The 4th Defendant also states that she established her matrimonial home on a portion of land parcel No. Kericho/Merigi/429. 22. The 4th Defendant further states that their deceased mother, one Chepngeno Taplelei Nyonyour (Deceased) purchased a portion of the suit parcel of land from the Plaintiff’s deceased father. 23. The 4th Defendant states that the Plaintiff’s contentions in the Plaint are malicious as he intends to evict the rightful owners of the said parcel of land. 24. The 4th Defendant also states that the Plaintiff’s suit is statute barred as the cause of action arose in the year 1990 and therefore prays that the suit be dismissed with costs. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 7 of 56

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25. The 5th Defendant filed his Statement of Defence on 19 th July, 2018 wherein he denies the averments in the Plaint and states that he and his siblings have lived on a portion of land parcel No. Kericho/Merigi/429 since the year 1969. 26. He also states that they took possession of the said portion after their (Deceased) mother purchased Chepngeno it from Taplelei Kiprotich Nyonyour A. Kutwet (deceased) vide a land sale agreement dated 28 th April, 1969. 27. He further states that the Plaintiff has all along been aware of the said purchase. 28. The 5th Defendant states that the Plaintiff fraudulently filed a succession cause without following the due process in order to deny them their inheritance. 29. He also states that it is the responsibility of the 6 th Defendant to issue title deeds and denies that he solely applied for the subdivision of the suit parcel of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 8 of 56

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30. He further states that the cause of action arose in the year 1969 and therefore the Plaintiff’s claim is statute barred. 31. The 5th Defendant then urges the Court to dismiss the Plaintiff’s suit with costs. 32. The 6th and 7th Defendants filed their Statement of Defence on 14th November, 2018. 33. They deny the averments in the Plaint and state that land parcel No. Kericho/Merigi/429 was subdivided according to the law and the laid down procedure. 34. The 6th and 7th Defendants also state that the Plaintiff’s suit offends the provisions of Section 3A of the Government Proceedings Act as the Plaintiff did not issue a Notice of Intention to sue. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 9 of 56

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35. The 6th and 7th Defendants therefore pray that the Plaintiff’s suit be dismissed with costs. THE PLAINTIFF’S EVIDENCE. 36. Benjamin Kibiwott Arap Chesulut herein after referred to as PW1 testified in support of the Plaintiff’s claim. 37. He stated that he filed a witness statement and prayed that it be adopted as part of his evidence-in-chief, which prayer the Court acceded to. 38. It was his evidence that the Defendants took possession of land No. Kericho/Merigi/429 which measures 6.4 Ha. The title deed for land parcel No. Kericho/Merigi/429 was marked and produced as Exhibit P1 and a copy of the Certificate of Official Search of the said parcel of land as Exhibit P2. 39. It was also his evidence that of all the Defendants, he personally knew the 2nd Defendant. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 10 of 56

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40. It was further his evidence that the suit parcel of land was initially registered in the name of his deceased father. 41. He testified that his deceased father was registered as the owner of the said parcel of land in the year 1979. He produced a copy of the green card for land parcel No. Kericho/Merigi/429 as Exhibit P3. 42. He also testified that after the death of his father, he filed Succession Cause No. 452 of 1997 in Nakuru Law Courts. 43. He further testified that the Court issued a Certificate of Confirmation of Grant and the land was transferred to his name. He produced a copy of the Certificate of Confirmation of Grant as Exhibit P4. 44. It was his evidence that in the year 2011, the 2 nd Defendant trespassed onto the suit parcel of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 11 of 56

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45. It was also his evidence that he filed Bomet SPM Case No. 19 of 2012 against him and added that the suit was concluded and the 2nd Defendant ordered to vacate the said parcel of land. He produced a copy of the decree issued in Bomet SPM Case No. 19 of 2012 as Exhibit P5. 46. He testified that the Court also issued an order of eviction which order he produced as Exhibit P6. 47. He also testified that the other Defendants entered the suit parcel of land in the year 2018 and he soon after filed the present suit. 48. He further testified that the 2nd Defendant had been evicted from the suit parcel of land but he went back and that is why he sued him in the present proceedings. 49. It was his evidence that he went to the Land Registry to conduct a search and find out what was happening. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 12 of 56

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50. It was also his evidence that he was given several Certificates of Official Search and that is when he realized that the suit parcel of land had been subdivided. 51. It was further his evidence that the suit parcel of land had been subdivided into land parcel No’s Kericho/Merigi/1254 to 1258. He produced copies of Certificates of Official Search for the said parcels of land as Exhibits P7(a), (b), (c), (d) and (e). He also produced a copy of a receipt issued upon payment of Kshs. 2,000/= as Exhibit P8. 52. He testified that the Defendants allege in their Statements of Defence that they purchased portions of the suit parcel of land from his deceased father and added that this is not true. 53. He reiterated that his deceased father did not sell the suit parcel of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 13 of 56

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54. He further testified that when he filed succession proceedings, the Defendants did not file any objection. 55. It was his evidence that he still had the original title deed of the suit parcel of land as he had never transferred it. 56. It was also his evidence that the Defendants did not file any documents to show that they obtained the consent of the Land Control Board before the registration of the land in their names. 57. It was further his evidence that the Defendants did not file any documents issued by the succession Court. 58. PW1 stated that he is seeking the prayers sought in the Plaint and added that the Defendants should be evicted from the suit parcel of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 14 of 56

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59. In his witness statement, PW1 states that the Defendants trespassed onto the suit parcel of land on or about 15 th September, 2015. 60. He also states that the Defendants are in the process of fraudulently transferring the suit parcel of land to innocent third parties. 61. He further states that the Defendants may use the titles of the resultant subdivisions of the suit parcel of land to secure loans which actions will cause him great prejudice. 62. He states that he continues to suffer irreparable loss and damage as a result of the Defendants actions. 63. Upon cross examination by the 4 th Defendant, PW1 denied that the 4th Defendant’s Mother-in-law purchased land from his deceased father. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 15 of 56

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64. He also denied that the 4th Defendant’s Mother-in-law had a land sale agreement of the alleged purchase and that she failed to follow up so that she can be issued with a title deed. 65. He further denied that the 4th Defendant’s Mother-in-law purchased a four-acre portion of the suit parcel of land. 66. PW1 denied that his deceased father sold portions of the suit parcel of land in order to pay for his education. 67. He stated that he was not aware that the 4 th Defendant’s Mother-in-law together with another woman purchased portions of the suit parcel of land and that the other woman got a title deed but her mother-in-law did not get a title deed. 68. PWI further stated that he was not aware that the 1 st Defendant tried to take his deceased father’s land and that his deceased father took his Cows to the 4 th Defendant’s mother-in-law for safe keeping. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 16 of 56

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69. He reiterated that the 4th Defendant acquired the title deed for land parcel No. Kericho/Merigi/1257 illegally. 70. Upon further cross examination by Counsel for the 6 th and 7th Defendants, PW1 stated that he was not related to the 2nd Defendant. 71. He admitted that he does not live on the suit parcel of land and stated that he lives in Nakuru. 72. He also admitted that the Defendants were not on the land when he commenced the succession proceedings. 73. He confirmed that when he heard that there were people in possession of the suit parcel of land, he made inquiries and was informed of the 2nd Defendant. 74. He confirmed that he did not know the other Defendants. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 17 of 56

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75. When he was referred to the green card of the suit parcel of land that was produced as Exhibit P3, he confirmed that he was not aware that there was a dispute over the said land. 76. He stated that he thought that the Defendants entered the land in the year 2018. 77. He confirmed that the 2nd Defendant took possession of the suit parcel of land in the year 2011 and that he was later evicted. 78. He also confirmed that he never subdivided the suit parcel of land. 79. Upon re-examination, he reiterated that his deceased father never sold portions of the suit parcel of land. 80. He stated that none of the Defendants filed land sale agreements to show that they purchased portions of the suit parcel of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 18 of 56

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81. He also stated that he started living in Nakuru in the year 1969 and that his grandchildren look after the suit parcel of land for him. 82. He reiterated that he did not transfer the suit parcel of land to anyone and stated that he did not know how the Defendants got title deeds. 83. The Plaintiff’s case was then closed. 84. The matter came up for Defence hearing on 25 th June, 2025 and despite the 1st to 5th Defendants being served, they did not appear in Court. The 1 st to 5th Defendants case was then closed. The 6th and 7th Defendant’s Evidence 85. Tiberius Ndege testified as DW1. He introduced himself as the Land Registrar Bomet. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 19 of 56

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86. It was his evidence that he had in Court the green card for land parcel No. Kericho/Merigi/429. 87. It was also his evidence that on the proprietorship section, Kiprotich Kutwet was registered as the owner of the said parcel of land on 19th October, 1970. 88. It was further his evidence that on 30 th August, 1971, Kiprotich Kutwet was issued with a Certificate of Title. 89. He testified that on 14th December, 2006, Benjamin Kibiwott A. Chesulut was registered as the owner of the suit parcel of land as per RL No. 7 & 19 resulting from Succession Cause No. 452 of 1999 which was filed in Nakuru and was issued with a title deed on the same day. 90. He further testified that on 13 th November, 2007, the then Land Registrar registered a restriction on the green card which restricted any dealings on the land until a dispute over the land was resolved. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 20 of 56

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91. It was his evidence that the Land Registrar later removed the said restriction. 92. It was also his evidence that on 16 th September, 2015, the green card of the suit parcel of land was closed upon subdivision of land parcel No. Kericho/Merigi/429 into land parcel No’s 1254 to 1258. 93. It was further his evidence that on the encumbrance section, Entry No. 1 is dated 16th October, 1979 when a charge was registered in favour of the Agricultural Finance Corporation to secure a loan of Kshs. 120,000/=. 94. He testified that Entry No. 2 is dated 28th August, 1986 when a further charge to the Agricultural Finance Corporation was registered to secure a loan of Kshs. 24,000/=. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 21 of 56

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95. He also testified that Entry No. 3 is dated 31st October, 2008 which is a discharge of charge of the charge registered at Entry No. 1. 96. He produced a copy of the green card of land parcel No. Kericho/Merigi/429 as Exhibit D1. 97. He testified that subdivision of land is done by the surveyor. 98. Upon cross examination by Counsel for the Plaintiff, he admitted that Entry No. 3 on the Proprietorship section of the green card for land parcel No. Kericho/Merigi/429 showed that Benjamin Kibiwott Chesulut was the owner. 99. He also admitted that it was the Land Registrar who registered a restriction on the green card. 100. He confirmed that land parcel No. Kericho/Merigi/429 was partitioned into five parcels of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 22 of 56

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101. He also confirmed that neither of the resultant partitions of land parcel No. Kericho/Merigi/429 was registered in the name of Benjamin Kibiwott. 102. He stated that at the time of the partition of the suit parcel of land, the land was registered in the name of the deceased. 103. He stated that partitioning is different from subdivision. 104. He stated that partitioning presupposes ownership in common which means that each person takes their own share. 105. He also stated that subdivision means that the registered owner divided the land into several portions of land. 106. He admitted that as per entry No. 3, the registered owner of the suit parcel of land is Benjamin Kibiwott which means that ownership in common does not arise. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 23 of 56

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107. He confirmed that it was correct to say that the persons in whose favour the titles were issued upon the partitioning of the suit parcel of land, acquired them fraudulently for the reason that they were not tenants in Common with Benjamin Kibiwott Chesulut. 108. The 6th and 7th Defendants case was then closed. Issues for Determination. 109. The Plaintiff filed his submissions on 2nd February, 2026 while the 6th and 7th Defendants filed their submissions on 18 th February, 2026. The 1st, 2nd, 3rd, 4th and 5th Defendants did not file submissions. 110. The Plaintiff sets out a summary of the facts of the suit, the prayers sought in the Plaint and submits on the following issues; a. Whether the Plaintiff’s deceased father is the rightful owner of the original -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 24 of 56

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parcel of land known as LR No. Kericho/Merigi/429. b. Whether the Court can order the Land Registrar Bomet to nullify and cancel the purported unlawful and illegal subdivision, registration and issuance of land parcel 1258 and reverting No’s Kericho/Merigi/1254- Merigi 1417 to original the and 1418and parcel No. Kericho/Merigi/429. (sic) c. Whether the Court can grant an order of permanent injunction Defendants and/or restraining their agents the from entering, making further developments and/or doing any acts to jeopardize the Plaintiff’s right to quiet and peaceful enjoyment of the suit parcel of land. d. Whether the Court can grant profits and general damages for trespass. e. Who should bear costs. 111. On the first issue, the Plaintiff relies on Section 3(3) of the Law of Contract Act and submits that all transactions with respect to land have to be in writing. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 25 of 56

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112. The Plaintiff relies on Sections 107(1), 108 and 109 of the Evidence Act, the judicial decisions of Hubert L. Martin & 2 Others vs Margaret J. Kamar & 5 Others [2016]eKLR, Munyu Maina vs Hiram Gathiha Maina Civil Appeal No. 239 of 2009 and submits that the Defendants did not produce any documents in support of their claim of ownership. 113. The Plaintiff also submits that the Defendants did not produce any land sale agreements and/or transfer forms in support of their contention that they purchased portions of the suit parcel of land. 114. The Plaintiff further submits that title deeds cannot be used as conclusive evidence of ownership and therefore the Defendants obtained the title deeds in their possession through unlawful and illegal subdivision of the suit parcel of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 26 of 56

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115. With regard to the second issue, the Plaintiff submits that the Land Registrar is the custodian of records of registered land. 116. It is the Plaintiff’s submissions that before the registration of any land, a survey is undertaken and dimensions of the land delineated under the registration section. 117. It is also the Plaintiff’s submissions that the Land Registrar has the mandate to rectify any mistakes made and that rectification is done after issuance of Court orders. 118. It is further the Plaintiff’s submissions that the Court should order the Land Registrar to nullify the illegal subdivision of the suit parcel of land. 119. On the third issue, the Plaintiff relies on the judicial decision of Kenya Power & Lighting Company Ltd vs Sheriff Molana Habib [2018] eKLR as was cited in Weru & 3 Others vs Mwaura & 3 Others (Environment & Land -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 27 of 56

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Case 221 of 2019) [2025] KEELC 959 (KLR) (27 February 2025) and submits that the Court should issue an order of permanent injunction. 120. On the fourth issue, the Plaintiff relies on Section 3(1) of the Trespass Act and submits that the Defendants trespassed onto the suit parcel of land around the year 2015. 121. The Plaintiff also submits that the Defendants acts of trespass have occasioned loss to the estate of his deceased father and therefore the Court should award him profits and general damages for trespass. 122. The Plaintiff relies on Section 27(1) of the Civil Procedure Act and urges the Court to allow the prayers sought in the Plaint together with costs. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 28 of 56

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123. The 6th and 7th Defendants submit on whether the 6 th Defendant is liable for the fraudulent subdivision of the suit parcel of land. 124. The 6th and 7th Defendants rely on Section 12 of the Land Registration Act, the judicial decision of Teresia Wangari Mbugua vs Jane Njeri Nduati & another [2020]eKLR and submit that the 6th Defendant did not engage in any deceitful practice to deprive the Plaintiff of his proprietary rights. 125. The 6th and 7th Defendants also submit that the 6 th Defendant does not have the capacity to initiate the process of subdivision on its own volition. 126. The 6th and 7th Defendants further submit that the 6 th Defendant’s role is the issuance of new titles after subdivision which is at the tail end. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 29 of 56

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127. The 6th and 7th Defendants rely on Section 22 of the Land Registration Act and submit that if at all the process of subdivision of the suit parcel of land was fraudulent, the 6 th Defendant was not a party to it. 128. It is the 6th and 7th Defendants submissions that the 6 th Defendant is a victim of misrepresentation as it relied on information presented to it by the parties who benefitted from the process and collected the title deeds. 129. The 6th and 7th Defendants rely on Section 14(5) of the Land Registration Act and submit that the said provision of the law absolves it of any liability arising from the actions done in good faith. 130. The 6th and 7th Defendants rely on the judicial decisions of Johnson Nyamoko vs Otiso Ondicho & another (citation not given), Kanda & another vs Kiprotich Environment and Land Appeal E008 of 2023 and submit that the -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 30 of 56

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Plaintiffs have failed to prove that the 6 th Defendant acted in bad faith. 131. The 6th and 7th Defendants in conclusion submit that the Plaintiff has failed to prove the particulars of fraud as set out in the Plaint and has left the Court to infer fraud from the documents produced. ANALYSIS AND DETERMINATION. 132. After considering the pleadings, the evidence adduced and the submissions, it is my view that the following issues arise for determination; a. Whether land Kericho/Merigi/429 parcel was No. fraudulently subdivided. b. Whether the Defendants trespassed onto land parcel No. Kericho/Merigi/429. c. Whether the prayers sought in the Amended Plaint should be granted. d. Who should bear costs of the suit. Summary of Evidence and Documents. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 31 of 56

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133. I shall start by briefly summarizing the evidence of the parties herein and the documents produced either is support of or in opposition to the claim. 134. It is the Plaintiff’s case that Benjamin Kibiwott Arap Chesulut, his deceased father is the registered owner of land parcel No. Kericho/Merigi/429. 135. It is also the Plaintiff’s case that sometime in September, 2015, the Defendants fraudulently subdivided land parcel No. Kericho/Merigi/429 permission of Benjamin without the Kibiwott consent Arap and/or Chesulut (Deceased). 136. It is further the Plaintiff’s case that the Defendants then trespassed and encroached onto the suit parcel of land. 137. The Plaintiff therefore seeks, among other orders, that the Defendants be evicted from the suit parcel of land. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 32 of 56

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138. In support of his case, the Plaintiff produced a copy of the title deed of land parcel No Kericho/Merigi/429 as Exhibit P1. It shows that Benjamin Kibiwott A. Chesulut (Deceased) was registered as its owner on 14 th December, 2006 and was issued with a title deed on the same day. 139. A copy of a Certificate of Official search for land parcel No. Kericho/Merigi/429 dated 28th February, 2018 was produced as Exhibit P2. It shows that Benjamin Kibiwot A. Chesulut (deceased) was registered as the owner of the said parcel of land on 14th December, 2006. The Certificate of Official Search also shows that on 16th September, 2015, land parcel No. Kericho/Merigi/429 was closed upon partition into land parcel No’s 1254 to 1258. 140. A copy of the Green Card for land parcel No. Kericho/Merigi/429 was produced as Exhibit P3. The contents of the said green card were set out in great detail by the Land Registrar who testified as DW1. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 33 of 56

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141. A copy of a Certificate of Confirmation of Grant issued in Nakuru HC Succession Cause No. 452 of 1997 In the matter of the Estate of Kiprotich Kutwet (Deceased) was produced as Exhibit P4. It states that Benjamin Kibiwott A. Chesulut (Deceased) was given a grant of Letters of Administration with respect to the estate of Kiprotich Kutwet (Deceased) on 6th October, 2006. There is a schedule on the face of the Certificate of Confirmation of Grant which shows that Benjamin Kibiwot A. Chesulut (Deceased) was to receive an absolute share in respect of land parcel No. Kericho/Merigi/429. 142. A copy of the Decree issued in Bomet SPM Case No. 19 of 2012 on 23rd July, 2012 was produced as Exhibit P5. The parties in the said suit were Benjamin Kibiwot Arap Chesulut (Deceased) (Plaintiff) and Kiplangat Ngerechi (Defendant). The decree shows that the Court issued the following orders; -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 34 of 56

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a. The Defendant to vacate from the suit land Kericho/Merigi/429 within 30 days after being served personally with the decree of this Court in default an eviction order should issue evicting the Defendant from the suit land. b. Costs to the Plaintiff. 143. A copy of an order issued in Bomet SPM Case No. 19 of 2012 on 6th November, 2012 was produced as Exhibit P6. It shows that the following orders were issued upon the hearing of the application dated 6th November, 2012; a. That this application is certified as urgent. b. That the OCS Bomet Police Station do evict the Defendant/Respondent from LR No. Kericho/Merigi/429 pursuant to the judgement/decree of this Honourable Court dated 23rd July, 2012. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 35 of 56

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144. Copies of various certificates of official search were produced as Exhibit P7(a), (b), (c), (d) and (e). 145. Exhibit P7(a) is a copy of a Certificate of Official Search dated 4th May, 2018 which shows that land parcel No. Kericho/Merigi/1254 was registered in the name of John Menso on 16th September, 2015. It also shows that on 17 th November, 2017, land parcel No. Kericho/Merigi/1254 was subdivided into land parcel No’s 1417 and 1418. 146. Exhibit P7(b) is a copy of a Certificate of Official Search dated 4th May, 2018 which shows that land parcel No. Kericho/Merigi/1255 was registered in the name of Kiplangat Ngerechi on 16th September, 2015 and he was issued with a title deed on the same day. 147. Exhibit P7(c) is a copy of a Certificate of Official Search dated 4th May, 2018 which shows that land parcel No. Kericho/Merigi/1256 was registered in the name of Joseph -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 36 of 56

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C. Maritim on 16th September, 2015 and he was issued with a title deed on 22nd January, 2016. 148. Exhibit P7(d) is a copy of a Certificate of Official Search dated 4th May, 2018 which shows that land parcel No. Kericho/Merigi/1257 was registered in the name of Joyce Chepwogen Tuimising on 16th September, 2015 and she was issued with a title deed on the same day. 149. Exhibit P7(e) is a copy of a Certificate of Official Search dated 4th May, 2018 which shows that land parcel No. Kericho/Merigi/1258 was registered in the name of Taita Arap Rop on 16th July, 2015 and he was issued with a title deed on 21st September, 2015. 150. A copy of a receipt issued by the Department of Lands on 30th April, 2018 to Geofrey Kipngetich upon payment of Kshs. 2,600 was produced as Exhibit P8. 151. The 6th and 7th Defendants case on the other hand is that land parcel No. Kericho/Merigi/429 was registered in the -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 37 of 56

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name of Benjamin Kibiwot Chesulut (Deceased) on 14th December, 2006. 152. It is also the 6th and 7th Defendant’s case that land parcel No. Kericho/Merigi/429 was partitioned on 16th September, 2015 into five parcels of land. 153. It is the 6th and 7th Defendant’s case that partitioning occurs when land is held in common and the partitioning is intended to give the owners in common distinct portions of land. 154. It is further the 6th and 7th Defendants case that the partitioning of land parcel No. Kericho/Merigi/429 was fraudulent as the persons in whose favour the said land was partitioned, were not tenants in common with Benjamin Kibiwott Chesulut (Deceased). 155. The 6th and 7th Defendants produced a copy of the green card for land parcel No. Kericho/Merigi/429 as Exhibit D1 -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 38 of 56

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and Tiberius Ndege who testified as DW1 set out in great detail the contents of the said green card. A. Whether land parcel No. Kericho/Merigi/429 was fraudulently subdivided. 156. It is not disputed that the Plaintiff’s deceased father, one Benjamin Kibiwott Chesulut (Deceased) was registered as the owner of land parcel No. Kericho/Merigi/429 on 14th December, 2026. 157. It is also not disputed that land parcel No. Kericho/Merigi/429 was subdivided on 16th September, 2015. 158. What is in dispute is whether the subdivision of land parcel No. Kericho/Merigi/429 was fraudulent. 159. Fraud has been defined in Black’s Law Dictionary 11 th Edition as; -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 39 of 56

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“A knowing knowing misrepresentation concealment of or material facts made to induce another to act to his or her detriment.” 160. The Court of Appeal in Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000] eKLR held that: “It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then 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.” (Emphasis mine) 161. In the Amended Plaint, the Plaintiff sets out Particulars of Fraud against the Defendants. They are as follows; -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 40 of 56

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a. Unlawfully and illegally causing the subdivision and subsequent transfer of titles to individuals against the backdrop of the legal procedure and without obtaining consent from the Land Control Board. b. Acquisition of titles without following the required process. c. Causing to be transferred and/or transferring the Plaintiff’s property without the consent of the legal owner. d. Being in possession of the titles despite the knowledge that they were invalid. 162. Benjamin Kibiwot Chesulut (deceased) testified as PW1 and it was his evidence that he did not subdivide land parcel No. Kericho/Merigi/429. 163. The evidence of the Land Registrar (who testified as DW1) is important on this issue. It was his evidence that land parcel No. Kericho/Merigi/429 was registered in the name of Benjamin Kibiwot Chesulut (Deceased) on 14th December, 2006. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 41 of 56

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164. It was also the Land Registrar’s evidence that the suit parcel of land was partitioned on 16th September, 2015. 165. The Land Registrar explained that partitioning presupposes ownership in common where each person takes their own share of land while subdivision entails the dividing of a parcel of land by its registered owner. 166. It was the Land Registrar’s evidence that the persons in whose favour the resultant titles were issued, fraudulently partitioned the said parcel of land as they were not tenants in common with Benjamin Kibiwot Chesulut (deceased) who is the registered owner of the suit parcel of land. 167. Essentially, the Land Registrar confirmed in his evidence that land parcel No. Kericho/Merigi/429 was fraudulently partitioned. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 42 of 56

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168. The burden of proof lies on the Plaintiff to prove on a standard higher than a balance of probability but lower than beyond reasonable doubt that indeed the Defendants engaged in acts of fraud. 169. It is my view that the Plaintiff has discharged the said burden and I find that land parcel No. Kericho/Merigi/429 was fraudulently partitioned. B. Whether the Defendants trespassed onto land parcel No. Kericho/Merigi/429. 170. It is the Plaintiff’s case that the 2 nd Defendant trespassed on land parcel No. Kericho/Merigi/429 in the year 2011. 171. It is also the Plaintiff’s case that he filed Bomet SPM Case No. 19 of 2012 against him and the Court issued orders of eviction. He produced copies of the said orders as Exhibit P6. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 43 of 56

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172. It is further the Plaintiff’s case that the 2 nd Defendant was evicted from the suit parcel of land but he later returned. 173. It is the Plaintiff’s case that in the year 2018, the other Defendants also trespassed onto the suit parcel of land. 174. The Plaintiff therefore seeks that they be evicted from the suit parcel of land. 175. The 2nd, 3rd, 4th and 5th Defendants filed Statements of Defence. The 2nd Defendant contended that he has been in possession of land parcel No. Kericho/Merigi/429 since the year 1970 after he purchased it from one Arap Lesigon. 176. The 3rd, 4th and 5th Defendants contended in their Statements of Defence, that their deceased mother one Chepngeno Taplelei Nyonyour purchased a portion of land parcel No. Kericho/Merigi/429 from Benjamin Kibiwot Arap Chesulut’s deceased father. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 44 of 56

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177. It is important to note that neither of the Defendant’s tendered evidence in the present suit. 178. The Court of Appeal in Attorney General v James Alfred Koroso [2018] KECA 129 (KLR) cited with approval the judicial decision of Edward Muriga through Stanley Muriga V Nathaniel D. Schulter Civil Appeal No. 23 of 1997 where it was held as follows; “In this matter; apart from filing its statement defendant did of defence the not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations. Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.” (Emphasis mine) -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 45 of 56

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179. In the above cited judicial decision, the Court held that where a Defendant fails to adduce evidence, his statement of Defence is regarded as containing mere allegations. 180. In the present suit, the 2nd, 3rd, 4th and 5th Defendants did not tender any evidence and therefore the averments in their respective Statements of Defence remain to be mere allegations. 181. The Plaintiff produced a copy of the title deed for land parcel No. Kericho/Merigi/429(Exhibit P1) which shows he was registered as the owner of the suit parcel of land on 14 th December, 2006. 182. Under issue (A) above, I have made the finding that land parcel No. Kericho/Merigi/429 was fraudulently partitioned. 183. Section 24 of the Land Registration Act provides as follows; -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 46 of 56

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“Subject to this Act— (a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights belonging and or privileges appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed liabilities or agreements, incidents of the lease.” 184. Section 25 of the Land Registration Act provides as follows; “(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 47 of 56

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order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if shown register; in the any, and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 48 of 56

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obligation to person subject to as is which the a trustee. 185. Section 3 (1) of the Trespass Act, Cap 294 provides that: “Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.” 186. The Plaintiff’s evidence that the 1st to 5th Defendants trespassed on land parcel No. Kericho/Merigi/429 was not controverted and I, therefore, find that the 1 st, 2nd, 3rd, 4th and 5th Defendants trespassed onto land parcel No. Kericho/Merigi/429. C. Whether the prayers sought in the Amended Plaint should be granted. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 49 of 56

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187. The prayers sought in the Amended Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference; a. A declaration that the Plaintiff’s deceased father is the rightful owner of the original parcel of land known as LR No. Kericho/Merigi/429. b. An order directing the Land Registrar, Bomet to nullify and purported unlawful subdivision and cancel the and illegal registration and issuance of title numbers Ker/Merigi 1254-1258 and Merigi 1417 and Merigi 1418 and reverting to the original parcel No. Kericho/Merigi/429. (sic) c. An order of permanent injunction as per paragraph 17. d. An eviction order from property LR No. Kericho/Merigi/429 as per paragraph 16. (sic) e. Profits and general damages for trespass. f. Costs of this suit and the interest as (sic) the Court’s rate. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 50 of 56

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g. Any other relief that this Honourable Court may deem suit (sic) to grant. 188. Among the prayers sought in the Amended Plaint is a prayer for profits. It is not clear the nature of profits the Plaintiff is seeking or what is meant by it. I shall state nothing further in regard to this claim. 189. The Plaintiff also seeks general damages for trespass. The Court of Appeal in Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited [2017] KECA 358 (KLR) held as follows; “It is trite law and as correctly submitted by counsel for the respondent that trespass to land is an actionable tort per se and proof of damage is not necessary or required. In other words, where trespass is proved as in this case, the affected party such as the respondent need not prove that it suffered any damage or loss as a result so as to be awarded damages. The Court is under the -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 51 of 56

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circumstances bound to award damages, of course depending on the facts of each case. See Simiyu v Sinino [1985] eKLR and Obadiah K. Macharia v Kenya Power and Lighting Company Limited.”[Emphasis mine] 190. In the above cited judicial decision, the Court of Appeal held that once trespass is proved, the Court is bound to award damages. 191. In the judicial decision of Prishar Wambui Kaguura v Peter Waithaka Kaguura & 2 others [2018] eKLR, the Court awarded the Plaintiff therein general damages of trespass of Kshs. 500,000/= after the Defendant trespassed and remained in occupation of the Plaintiff’s parcel of land for a period of about two to three years. 192. Taking into consideration the circumstances of this suit, the Plaintiff dates the 2nd Defendant’s trespass to 2011 after which he filed a suit for his eviction and judgment was -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 52 of 56

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entered against the 2nd Defendant in July 2012. The Plaintiff’s further evidence is that the 2 nd Defendant was evicted but re-entered the suit parcel. 193. The Plaintiff is specifically mentions in his evidence that the 1st, 3rd, 4th and 5th Defendants trespassed onto the suit parcel of land in 2018. 194. I find that a sum of Kshs. 800,000/= (Eight Hundred Thousand) as general damages for trespass is adequate compensation. 195. Given my finding on issue (A) and (B) above, I find that the prayers in the Plaint are merited save for the prayer for profits. D. Who should bear costs of the suit. 196. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 53 of 56

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197. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. DISPOSITION. 198. In the result, I find and order as follows; a. A declaration is hereby issued that Benjamin Kibiwot Chesulut (Deceased) is the owner of land parcel No. Kericho/Merigi/429. b. The Land Registrar Bomet is hereby directed to nullify and/or cancel the title deeds for land parcel No’s Kericho/Merigi/1254, 1255, 1256, 1257, 1258, 1417 & 1418 which titles were issued upon the fraudulent partitioning of land parcel No. Kericho/Merigi/429. c. An order of permanent injunction is hereby issued restraining the 1 st, 2nd, 3rd, 4th and 5th Defendants from entering, developing and/or doing any other act jeopardizing the Plaintiff’s right to quiet and peaceful enjoyment of land parcel No. Kericho/Merigi/429. d. The 1st, 2nd, 3rd, 4th and 5th Defendants are hereby ordered to vacate land parcel No. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 54 of 56

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Kericho/Merigi/429 within 90 days of delivery of this judgement, failure to which eviction orders shall issue. e. The 1st, 2nd, 3rd, 4th and 5th Defendants shall jointly and severally pay the Plaintiff a sum of Kshs. 800,000/= (Eight Hundred Thousand shillings) as general damages for trespass. f. The Plaintiff shall have costs of the suit. 199. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 11TH DAY OF JUNE, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Bitok for the Plaintiff. Mr. Ojwang for Chepkemoi for 6th and 7th Defendants. 1st, 2nd, 3rd,4th and 5th Defendants– Absent (Acting in person) -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 55 of 56

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Court Assistant; Mr. Joseph Makori. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 46 OF 2018 [KERICHO] Page 56 of 56

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