Sailoji & another v Keriasek & 11 others

MAITEI KERIASEK….…………………………………10TH DEFENDANT PERESHA OLE SOPIA………………………………..11TH DEFENDANT PAPIYO OLE SOPIA…………..……………………….12TH DEFENDANT JUDGMENT 1. Vide a Plaint dated 30th September 2024, the Plaintiffs herein Kipankara Ole Sailoji and Michael Leyioma Sailoji on behalf of the estate of their deceased father Kashu Ole Sailoji sued the Defendants herein John Lasiamon Keriasek, Pololet Keriasek, Ntekerei Keriasek, Nkoompa Keriasek, Lemaiduk Keriasek, Kilelu Keriasek, Njue Keriasek, Musanka Keriasek, Otiyioi Keriasek, Maitei Keriasek, Peresha Ole Sopia and Papiyo Ole Sopia for various orders. 2. In their claim, the Plaintiffs averred that that they are the sons of the late Kashu Ole Sailoji who died in Narok on 18th January 2012. That their late father was, and is still the registered absolute proprietor of Land Parcel No. CISMARA/OLCHORO/38 ELC CASE NO. E25 OF 2024 (hereinafter the suit property) Page 2 of 47

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measuring approximately 125 hectares having been registered and issued with a land certificate on 17th December 1980. 3. The Plaintiffs further averred that prior to the demise of their father, he enjoyed peaceful quiet, exclusive possession and occupation of the said parcel of land until the time of his death. Further, that even after the demise of their late father, his family members continued to occupy this parcel of land in peaceful, quiet and exclusive possession. 4. The Plaintiffs contended that on or about 25th September 2024, the Defendants encroached and trespassed unto a portion of land forming part of their deceased father’s property, uprooted/destroyed the fence that was erected thereon, fell some trees and forcefully ploughed the said section without the Plaintiffs’ consent. 5. The Plaintiffs particularized the Defendant’s illegalities as follows: ELC CASE NO. E25 OF 2024 Page 3 of 47

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a. Encroaching into the suit property without any consent from the estate of the late Kashu Ole Sailoji b. Destroying and uprooting a fence erected on the suit property. c. Felling trees without consent of the Estate of the Late Kashu Ole Sailoji. d. Ploughing part of the suit property without the consent and permission of the Estate of the late Kashu Ole Sailoji. 6. The Plaintiff’s prayed for Judgment against the Defendants jointly and severally for the following reliefs: a. A permanent Defendants injunction from restraining trespassing, the encroaching, occupying, ploughing, cultivating and/or dealing in any manner with the land parcel CISMARA/OLCHORO/38. b. Eviction of the Defendants from the land parcel CISMARA/OLCHORO/38. c. General damages d. Exemplary damages e. Costs of the suit 7. The suit is resisted by the Defendants, who in response to the Plaint, filed their Amended Statement of Defence and ELC CASE NO. E25 OF 2024 Page 4 of 47

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Counterclaim dated 20th February, 2025, and denied every allegation in the Plaint and specifically that they encroached Unto land parcel No. CISMARA/OLCHORO/38, and/or any portion thereof. 8. The Defendants contended their own parcel of land that they are in occupation of CISMARA/OLCHORO/1819, measuring approximately 23.10 ha or thereabouts, which land they have been carrying on farming activities. 9. The Defendants also averred that their parcel of land No. CISMARA/OLCHORO/1819, does not share a common boundary with CISMARA/OLCHORO/38, and that the two parcels of Land are separated by a public road, and there is no way they could have encroached unto the Plaintiffs’ portion of the land as alleged without interfering with the public road, which has been a common boundary over the years, and the said public road separates the two parcels of land. ELC CASE NO. E25 OF 2024 Page 5 of 47

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10. The Defendants also averred that there has been a boundary dispute between the Plaintiff’s and the Defendants dating way back before the year 2018 where the Plaintiffs basically claimed misplaced access road, which they have now mutated into an encroachment into their portion of land. 11. Consequently, the Defendants urged the Court to dismiss all the prayers and reliefs sought by the Plaintiffs in their claim, and that the said suit be dismissed in its entirety with costs. 12. The court referred the matter to Alternative Justice System ( AJS) but the plaintiffs were not satisfied with the outcome, and consequently the matter proceeded for interparties hearing, after the close of pleadings and pre-trial conference. Plaintiff’s case 13. PW1, Kipankara Ole Sailoji, the 1st Plaintiff herein adopted his witness statement dated 17/3/2025, as part of ELC CASE NO. E25 OF 2024 Page 6 of 47

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his evidence in chief, and also documents even dated produced his list of as PEXHIBIT 1-16. It was his further testimony that he has seen the official search to land parcel No. CISMARA/OLCHORO/12. However, he that land his dispute concerns stated parcel No. CISMRA/OLCHORO/38, with the neighboring land parcel. 14. Further, Pw1 testified that land parcel No. CISMARA/OLCHORO/1819, is a result of the subdivision of land parcel no. CISMARA/OLCHORO/12, and their parcel of land boarders land parcel No. CISMARA/OLCHORO/12, from the search. It was his further testimony that there is a road on the ground of 6:7 meters that passes through land parcel No. CISMARA/OLCHORO/12, and that this road passes through some section and not all of them. Further, that the disputed parcel of land is about 7 acres, which is illegally occupied by the Defendants since 2024. 15. Upon cross examination by Ms Lepore for the Defendants, PW1 reiterated that the suit land is the estate of his deceased father- Kashu Ole Sailoji. He admitted that he ELC CASE NO. E25 OF 2024 Page 7 of 47

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was not present during demarcation of land parcels Nos. CISMARA/OLCHORO/12 and CISMARA/OLCHORO/38. 16. He also testified that he was in school at the time of the said demarcation, but his father showed him the beacons, and that the Defendants have encroached on the parcel of land owned by his late father. Further, that land parcel No. CISMARA/OLCHORO/38, is separated from land parcel No. CISMARA/OLCHORO/12, by the road. He reiterated that the Defendants have trespassed on their side of the land. 17. it is Further, that there is another road which passes where not supposed to pass, and that there is a common boundary dispute. Pw1 further testified that there is no other case at the lower court, and that the matter at the lower court was not concluded because the 1 st Defendant herein sued a Defendant who was a deceased person. 18. PW1 claimed that he closed a new road because he wanted people to use the reserved road, and that there was ELC CASE NO. E25 OF 2024 Page 8 of 47

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no dispute before closing the road. It was his further testimony that the road was reopened through efforts of the area Chief and the District Officer, and that it has remained open since it was re-opened by the above administrators. 19. Further, that he has seen the photographs produced as exhibits, which show the correct position on the ground, and he stated that it was his son who took the photographs, though he could not tell the exact date. 20. PW1, also testified that the photographs showed land parcel CISMARA/OLCHORO/38, and that it was taken the same date that his trees were cut down. He alleged that the fence in the photographs is the one that was cut and destroyed by the Defendants. 21. On re-examination, PW1 stated that he was in school at the time of demarcation, and that the beacons have been identified and land the road that passes through his parcel of is not the reserve road. That he was in the process of ELC CASE NO. E25 OF 2024 Page 9 of 47

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closing the trespass road and the reserve road was marked in 2016. 22. It was his further evidence that when the reserve road was to be opened, the Defendants moved to court to stop opening of the new road ,but the case was dismissed. He insisted that the dispute between himself and the Defendants is a road dispute, nor a boundary dispute. He reiterated that he has the minutes of 20/9/2024, wherein the area chief misadvised the Defendants, prompting them to encroach on the PW1’s side of the parcel. 23. PW2, Donald Leishan Sailoji, adopted his witness statement dated 17th March 2025, and further testified that the Defendants encroached on their land parcel on 25/9/2024, while armed. It was his further testimony that he took photographs with his techno phone and run way. 24. Further, that he was on the ground on that day, and claimed he had a certificate of electronic evidence. ELC CASE NO. E25 OF 2024 Page 10 of 47

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25. On cross examination by Ms Lepore, he insisted that he was on the ground on 25/9/2024, and he reported the encroachment by the Defendants to the chief, but not the police. Further, that the Defendants encroached on 6 acres of their side, and that the photographs were taken at around noon when the Defendants left and the fence that appears is on the side of the road. 26. PW3 Stanley Koonyo, adopted his witness statement, dated 17th May, 2025 as his evidence in chief and also testified that he is the former chief of Siyapei location, a position he served since 1996 to 2020. He further testified that he knows the family of Kashu Ole Sailoji, as they come from his location. 27. Further, that there was a dispute over an access road in the year 2015, and not a boundary dispute. He insisted that the dispute in court is about an access road and not encroachment. ELC CASE NO. E25 OF 2024 Page 11 of 47

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28. On cross examination, he reiterated that he served as the area chief from 1996 to 2020, and that he knew land parcels Nos. CISMARA/OLCHORO/38 CISMARA/OLCHORO/1819, but did not and know their acreages. Further, that when the road was allegedly closed, he reported to the District Officer who went to the scene. It was his contention that the road was a public road, and there is no alternative road. 29. That they requested the family of Sailoji to allow access till the dispute is resolved and that when they went back to the ground with the respective families, the same was opened. Further, an access road was marked but has not been opened because of the case in court. 30. He testified that the surveyor has marked the land and that the road separates the two blocks of land, the affected parties are many and that the access road was the point of reference. Defendants Case ELC CASE NO. E25 OF 2024 Page 12 of 47

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31. DW1 John Lesiamon Keriasek, testified that he comes from Sonkoro location within the great Olchorro Adjudication Section. It was his testimony that land parcel No. CISMARA/OLCHORO/1819, belonged to his late father, and that he has taken out Grant of letters of administration. 32. Dw1 adopted his witness statement dated 10th April 2025, as his evidence in chief, and further testified that there is a road that separates the Plaintiffs’ and the Defendants’ parcels of land. 33. Further, that he had a boundary dispute with the family of Sailoji that had to be resolved. That he went to court seeking for orders to compel the Plaintiffs to move out of their land which had been demarcated. That the community elders met and decided that the parcel of land that the Plaintiffs had encroached on is for the Defendants, but the Plaintiffs moved to court and sued them. He identified the court order which they were served with in 2019. ELC CASE NO. E25 OF 2024 Page 13 of 47

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34. It was his further testimony that the surveyor placed the beacons in the proper location, but the Plaintiffs refused to follow this recommendation. 35. Upon cross exam by Ms Cheruto, DW1 testified that land parcel No.CISMARA/OLCHORO/1819, belonged to his late father, and that he had commenced the succession process. 36. He also testified that he did not know where land parcel No CISMARA/OLCHORO/38, came from, but it was not a subdivision of land parcel No. CISMARA/OLCHORO/12. Further, that his father’s parcel of land came from land parcel No. CISMARA/OLCHORO/12, but he was not present during sub division. 37. That land parcel No. CISMARA/OLCHORO/12, has an easement road of about 6.67 meters as per the search produced by the Plaintiff. He also testified that there has always been a boundary dispute between his family and that of the Plaintiffs. Further, that a meeting was held on ELC CASE NO. E25 OF 2024 Page 14 of 47

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10/2/2018, and he had minutes of the said meeting, but the family of the Plaintiffs did not attend. 38. That the agenda of the meeting was to allocate a road between land parcel Nos. CISMARA/OLCHORO/12 and NAROK/OLCHORO/18. Dw1 also testified that Sailoji had placed an illegal beacon encroaching on the Defendants’ land parcel before he died. Further, that this extended to the Defendant’s portion and that it was done without a surveyor and there was no fence. 39. Further, that the disputed land is 6 acres and that he has seen the minutes of 30/1/2019, which was held between the family of the Plaintiffs and the Defendants. He added that he was present and the meeting was commenced by the demarcation committee. That Pw1 was advised to leave their land alone before the elders: the surveyor was not present, but he went later and made a report dated 11/09/2024. ELC CASE NO. E25 OF 2024 Page 15 of 47

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40. Dw1 confirmed having seen the minutes of 25/9/2024, which was called by the Assistant chief ,and which he attended, and the same was directed to be held by the District Commissioner. That the conclusion of the meeting was that the Defendants were to use and cultivate the encroached land. 41. That the area chief went to solve the issue of closing the access road, but he Pw1 could not remember whether his father was still alive, and that the access road is the boundary of the two parcels of land. 42. On re-examination by Ms Lepore, Dw1 testified that his father’s parcel was sub divided when he died, and that he had seen the search by the Plaintiffs, but the 2019 search is not an updated one. 43. He admitted that he had sued Pw1 but the case was dismissed because Pw1 had not taken out letters of administration over his late father’s estate. Later on Pw1 took out the letters of administration, and he filed this ELC CASE NO. E25 OF 2024 Page 16 of 47

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case. Accordingly, the Land Registrar and Surveyor visited the disputed parcels of land 44. DW2, Salaton Ole Sopia adopted his witness statement dated 10th April 2025 as his evidence in chief. He further testified that he was in the adjudication committee of the great Olchoro Adjudication section, and that the committee allocated the disputed parcel of land to the Defendants. 45. Further, that the Plaintiffs’ and the Defendants’ fathers were allocated their respective portions of land during adjudication, and that this was done while respecting the existing access road. Further, that the road acted as a boundary and passed through all the parcels of land, and not PW1 side alone as alleged. 46. It was his testimony that they received a complain about the dispute between the Plaintiffs and the Defendants, and the same was resolved, but PW1 was not satisfied. ELC CASE NO. E25 OF 2024 Page 17 of 47

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47. On cross examination by Ms Cheruto, he reiterated that the boundary was between the parcels of land in dispute, but the Surveyor in the presence of the elders fixed the boundary. He did not participate in the fixing of the boundary, and neither could he identify where the beacons were fixed because the Surveyors visited the ground later. 48. He insisted that the access road is the boundary, and that he was present in the meeting of 2019, but there was no surveyor. However, they resolved the dispute between the two families as elders. 49. Dw2 testified that there was another meeting on 10/2/2018, which was between CISMARA/OLCHORO/12, and land parcel Nos. CISMARA/OLCHORO/38, which was aimed at determining where the access road was to pass. That there was an alteration of a beacon fixed by Pw1’s father on Dw1’s land, and that it is this dispute that has extended to the children. Further, that Pw1’s family fixed the beacons on Dw1’s parcels of land. ELC CASE NO. E25 OF 2024 Page 18 of 47

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50. On re-examination by Ms Lepore, he testified that the beacons were placed on Dw1’s land by Pw1’s family. Further, that all the parcels of land ended at the road, and that the access road was the boundary. He confirmed that land parcel No. CISMARA/OLCHORO/38, was allocated to Pw1’s father but he did not know the acreage. 51. DW3, Tonkei Ole Sopia adopted his witness statement dated 28th April 2025. It was his further testimony that he was present when the Plaintiffs’ and the Defendants’ parcels of land were allocated, and that he participated in the allocation of the said parcel of land. Further, that the access road separated the parcels of land and Pw1’s land does not cross to the other side of the road, and that Pw1’s family invaded Dw1’s land. 52. On cross examination, Dw3 testified that he is sure of his testimony because he was the Chairperson of Olchoro Adjudication section, and that Pw1’s father was a chief. That Pw1 invaded Dw1’s land and the elders were aware of the dispute, and they solved it to the effect that Dw1 keeps ELC CASE NO. E25 OF 2024 Page 19 of 47

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the portion of land in dispute, but Surveyors were not around. 53. On re-examination, Dw3 testified that he does not know anything about beacons, and that the access road was the beacon 54. After the close of viva voce evidence, the court directed the parties to file and exchange their respective written submissions, which directives, were complied with. 55. The Plaintiffs filed their written submissions dated 21st May 2026 through the Law Firm of Cheruto & Co Advocates ,wherein the following issues were raised for determination: a. Whether the court has jurisdiction to handle the matter b. Whether the Plaintiffs have proved ownership, occupation and possession of the suit property since 1980 c. Whether the Defendants unlawfully encroached and trespassed on to the suit land ELC CASE NO. E25 OF 2024 Page 20 of 47

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d. Whether the 1st to 10th Defendants’ claims on the suit property are sustainable e. Whether the Plaintiff is entitled to the reliefs sought 56. On jurisdiction, the Plaintiffs submitted that the issue at hand is not a boundary dispute, but instead one of opening a reserve access road as provided for by the Olchorro Adjudication map. Further, that the District Land Registrar Narok, visited the land occupied by the Defendants pursuant the Court Order in Narok CMELC No. 38 of 2019, as shown in their exhibit 5 in the report dated 9th November 2021, wherein the subject in issue is opening an access road, and not a boundary dispute. The Plaintiffs further submitted that the road forms a boundary mark for so many parcels of land, except for the disputed parcels because it passes through land parcel No. 12. 57. Therefore, the Plaintiffs submitted that this Court has the jurisdiction to determine the issue at hand because it is not a boundary dispute. ELC CASE NO. E25 OF 2024 Page 21 of 47

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58. On the issue of ownership, occupation and possession since 1980 the Plaintiffs submitted that land parcel No. CISMARA/OLCHORO/38, measuring approximately 125.0 hectares belongs to their late father Kashu Ole Sailoji ,who was registered on 17th December 1980, and was issued with a certificate of title. 59. The Plaintiffs relied on the case of DOSHI VS CHEMUTUT & 7 OTHERS (Civil Appeal E020 of 2023) KECA 776 (KLR) ,where the court held that a certificate of title is prima facie evidence of ownership under Section 23 of the Registration of Titles Act and Section 26 of the Land Registration Act in absence of proof of fraud or misrepresentation. 60. On the issue of trespass, the Plaintiffs relied on Sections 24 and 25 of the Land Registration Act, 2012, which grant exclusive proprietary rights of land to the registered owner at the exclusion of all others. ELC CASE NO. E25 OF 2024 Page 22 of 47

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61. The Plaintiffs submitted that the Defendants encroached unto their parcel of land on 25th September 2024, destroyed and uprooted the fence that was erected thereon, ploughed the said section and cut some trees. They relied on the photographs produced as exhibit 13. 62. On whether the 1st to 20th Defendants claim on a portion of the suit property is sustainable, the Plaintiffs submitted that in various meetings held to determine where the access road should be positioned, there was no Surveyor or Land Registrar to confirm the positions taken. 63. The Plaintiffs also challenged the Surveyor’s report dated 11th September 2024, on the basis that they were never summoned, and thus did not participate in the verification process. Further that the said verification process was done around 15 days after the suit filed by the 1st Defendant being Narok CMELC 38 OF 2019, had been struck out and that the allegations that the visit was pursuant to a court order are thus false. ELC CASE NO. E25 OF 2024 Page 23 of 47

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64. The Plaintiffs also relied on the minutes of 20th September 2024, wherein the Area Chief and Ass. Chief gave the Defendants a go ahead to utilize the encroached area. It was the Plaintiffs’ adjudication was done in further submissions that the 1970s, and that the Defendants never filed any objection and cannot thus claim the encroached portion now. 65. Reliance was sought ANOTHER (Suing for in the case of MAITHA & and on Behalf of the WAMUNYUNDO CLAN) VS KARSAN RAMJI & SONS LIMITED & 6 OTHERS (Environment and Land Case 230 of 2018) [2025] KEELC 18442(KLR)(17 2025) (Judgment), wherein December the court noted that after completion of adjudication process, the party dissatisfied had 60 days to file an objection if any, and in the case where such a party failed to file such an objection, then the process is found to have been held in accordance with the law. ELC CASE NO. E25 OF 2024 Page 24 of 47

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66. Regarding whether the Plaintiffs are entitled to the reliefs sought, the Plaintiffs submitted that they have proven on a balance of probabilities that the whole land parcel Narok/Olchoro/38, measuring approximately 125.0 hectares belongs to the late Kashu Ole Sailoji, and now Estate of Kashu Ole Sailoji ,and should thus be awarded all the prayers sought in the plaint. 67. On their part, the 1st to 10th Defendants filed their written submissions dated 15th June 2026 through the Law Firm of Lepore & Co Advocates, wherein the issues for determination were summarized as follows: a. Whether the plaintiffs have proved exclusive occupation of parcel CISMARA/OLCHORO/38 beyond its lawful boundary b. Whether the Defendants unlawfully encroached and trespassed onto parcel CISMARA/OLCHORO/38 c. Whether the dispute is one of trespass or boundary ELC CASE NO. E25 OF 2024 Page 25 of 47

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d. Whether the access road exists and has always been the lawful boundary e. Who should bear the costs of the suit 68. On exclusive occupation No.CISMARA/OLCHORO/38, the of land parcel Defendants submitted that the Plaintiffs’ occupation has always been confined to their parcel of land, and the Defendants were confined to their own. It was their submission that the public access road stands as an eternal boundary between land parcels Nos.38 and 1819, and that it is the lawful boundary recognized by elders, confined by the Land Registrar and respected by the community. 69. The Defendants relied on the case of DOSHI V CHEMUTAI 7 OTHERS [2025] KECA 776(KLR) where the court held that: “title is not a magic wand to extend boundaries. It is evidence of ownership of the parcel described, not of neighboring land separated by a public road. ELC CASE NO. E25 OF 2024 Page 26 of 47

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70. The Defendants further submitted that the Plaintiffs title to land parcel No. 38, is valid but it cannot swallow land parcel No 1819. The Defendants also relied on the maxim of “equity follows the law” and that the law recognizes the road as the boundary. 71. The Defendants relied on the minutes of 30th January 2019, where the elders and adjudication officials resolved that the road is the boundary, and that the disputed portion belongs submitted to the that Defendants. the Plaintiffs The Defendants cannot go further against this adjudication made through the collective wisdom of the very people who live through the adjudication process. 72. In response to the Plaintiffs’ claim for trespass, the Defendants submitted that it is impossible to trespass upon a land that they do not touch, and especially when there is a road separating them. Further, that the Plaintiffs’ reliance on adjudication beacons is equally misplaced. ELC CASE NO. E25 OF 2024 Page 27 of 47

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73. The Defendants submitted that Section 16 of the Land Adjudication Act, Cap 284 provides for survey officers to prepare demarcation maps and prepare beacons. Section 60 provides a 60 day window for objections, and that neither the Defendants nor their father objected because the road was clear and cannot do so now. 74. On the issue of whether the Defendants unlawfully encroached and trespassed onto land parcel No. CISMARA/OLCHORO/38, the Defendants denied all the allegations raised by the Plaintiffs that on 20th September 2024, the Defendants uprooted fences, cut trees, and ploughed Land parcel CISMARA/OLCHORO/38. 75. The Defendants maintained that their occupation has always been limited to land parcel no. CISMARA/OLCHORO/1819, separated by a public access road since adjudication. It was their further submissions that encroachment cannot occur without the Defendants crossing to the other side of the road. ELC CASE NO. E25 OF 2024 Page 28 of 47

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76. The Defendants relied on Section 3(1) of the Trespass Act, Cap 294, which criminalizes unauthorized entry upon private land. The Defendants relied on the case of WAMBUGU VS NJUGUNA[1983] KLR 172, where the court emphasized that possession must be exclusive, continuous and hostile to the true owner for claims of adverse occupation or trespass to stand. 77. The Defendants submitted that in the present circumstances, the Plaintiffs’ possession has never extended beyond their lawful boundary, and that the road has always marked the limit. That the Defendants’ occupation on Land parcel No. CISMARA/OLCHORO/1819, cannot by any stretch be construed as trespass on land parcel CISMARA/OLCHORO/38. 78. The Defendants also relied on the case of MBUI MUKANGU VS GERALD MUTWIRI ABURI [2004] eklr, where the Court of Appeal stressed that occupation must be actual and probable, not speculative and that the ELC CASE NO. E25 OF 2024 Page 29 of 47

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Plaintiffs’ allegations of ploughing and destroying the fence are unsupported by credible evidence and are contradicted. 79. On whether the present dispute is one of trespass or boundary dispute, the Defendants submitted that the present dispute is a boundary dispute, that has long been settled by adjudication, community resolutions and official reports. 80. The Defendants relied on the case of KARIUKI V KARIUKI [1983] KLR 225, where the court held that disputes arising from adjudication must be addressed within the statutory framework provided and that once boundaries are fixed, they cannot be casually reopened. 81. VS The Defendants also relied on the case of MUTHUITA MUTHUITA [1982] KLR 42, where the court emphasized that boundary disputes must be resolved by the Land Registrar; not by transforming them into trespass claims. It was the Defendants’ submissions that the Plaintiffs’ ELC CASE NO. E25 OF 2024 Page 30 of 47

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claim is meant to erase the road and annex their neighbor’s land. 82. On whether the access road exists and has always been the lawful boundary, the Defendants relied on the minutes held on 30th January 2019, and submitted that the Elders, Adjudication officials, Police and the Land Registrar resolved that the road was the boundary, and the disputed portion belonged to the Defendants’ family. It was the Defendants’ further submissions that the District Land Registrars report dated 9th November 2021, confirms this position. Lastly, the Defendants submitted that the Plaintiff’s case should be dismissed with costs. 83. Having carefully considered the pleadings, the oral and documentary evidence tendered by the parties, the rival written submissions and the applicable law, the Court is of the view that the following issues arise for determination: i. Whether the Plaintiffs have proven their case to the legally required standard ii. Who bears the costs of these proceedings? ELC CASE NO. E25 OF 2024 Page 31 of 47

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Analysis and Determination 84. The Plaintiffs’ claim is that the Defendants have trespassed onto their deceased father’s parcel of land No CISMARA/OLCHORO/38, from their own land parcel No. CISMARA/OLCHORO/1819. Further, that the existing access road is not the proper road, and that another road ought to be opened at another location. 85. The Defendants however denied these allegations and insisted that the existing road has existed for decades, has always been the recognized permanent boundary, and that the present dispute is predominantly a boundary dispute disguised as a trespass and road access dispute, and which should be handled by the Land Registrar under Sections 18 of the Land Registration Act. 86. The court has considered the summons dated 10th January 2018 and 26th February, 2019, and it is clear that it is aimed at summoning all the concerned parties for purposes of opening an access road in respect to land parcels ELC CASE NO. E25 OF 2024 No. CISMARA/OLCHORO/38 Vs Page 32 of 47

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1819,1820,1821,1822. The court has also seen the photographs produced by the Plaintiffs and it can clearly see a road next to the logs. The minutes dated 20/9/2024, are also considered, and the contents therein noted. 87. Having gone through the minutes of 30.1.2019 ,in the Defendants list of documents titled “minutes of boundary dispute between Sailoji’s and Keriasek’s Family meeting held 30.1.2019 at the boundary in Mpirrishi village in Sonkoro Sub-location at 11:00 AM, the court notes in the said minutes, the Resolutions are clear that the disputed portion of land belongs to the Defendant’s family, and has been so for the past 40 years. Further, the road is the boundary and that Sailoji’s argument could not match the surveyor’s measurement. 88. Sections 107 and 109 of the Evidence Act place the legal burden upon the party who asserts the existence of a fact to prove the said facts alleged. In this regard, the burden of proving the allegations set forth in the Plaint ELC CASE NO. E25 OF 2024 Page 33 of 47

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rested squarely upon the Plaintiffs. The above provisions of land states: “ Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof as to any particular fact lies on the person who wishes the court to believe in it existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 89. Whereas the Plaintiffs successfully demonstrated that their late father was the registered proprietor of Land Parcel No. CISMARA/OLCHORO/38, ownership of the said parcel of land alone was not sufficient to establish the tort of trespass. The Plaintiffs were under a legal obligation to prove, on a balance of probabilities, that the Defendants physically entered and occupied a specific identifiable ELC CASE NO. E25 OF 2024 Page 34 of 47

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portion of land Parcel No. CISMARA/OLCHORO/38 ,without lawful justification. 90. Section 3(1) of the Trespass Act states that: “Any person who without reasonable excuse enters, is structure or on, remains or upon, cultivates or or erects any 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.” 91. The Plaintiffs had the onerous task and obligation to prove these ingredients as set out in Section 3(1) of the Trespass Act. However, there is a glaring disconnect between the Plaintiffs' pleadings and the evidence adduced during trial. While the Plaintiffs in their Plaint dated 30th September 2024 pleaded a claim founded purely on trespass and encroachment, a substantial portion of their oral evidence revolved around an alleged dispute concerning the location of an access road. ELC CASE NO. E25 OF 2024 Page 35 of 47

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92. At the hearing, PW1 repeatedly testified that the present dispute concerns the proper location of a reserve road, and that another road ought to be opened. PW1, also testified that there have been previous disputes concerning the proper location of the access road. 93. Further, in re-examination, PW1 expressly stated that the dispute between himself and the Defendants concerned a road dispute, and not a boundary dispute. This position was reinforced by PW3, a former Chief, who unequivocally testified that the dispute between the parties was about an access road and not encroachment. 94. This Court is therefore left with considerable uncertainty as to the true nature of the Plaintiffs' claim. On one hand, the Plaintiffs sought remedies for trespass and eviction. On the other hand, their own witnesses consistently characterized the dispute as one concerning an access road. 95. Parties are bound by their pleadings, and the court cannot grant the Plaintiffs reliefs on the basis of a case that ELC CASE NO. E25 OF 2024 Page 36 of 47

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they neither pleaded nor properly prosecuted. The Plaintiffs were obligated to present a coherent and consistent case. 96. In the case of OLOO vs ARIKA & ANOTHER (CIVIL APPEAL E080 OF 2024) [2026] KEHC 2889(KLR) (3 MARCH 2026) JUDGMENT at paragraph 24, the Court affirmed the position in DANIEL OTIENO MIGORE V SOUTH NYANZA SUGAR CO. LTD [2018] EKLR, JUSTICE A C MRIMA stated as both: [Paragraph 24] It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the ELC CASE NO. E25 OF 2024 case of Independent Electoral and Page 37 of 47

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Boundaries Commission & Ano. v Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded ………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation. ELC CASE NO. E25 OF 2024 Page 38 of 47

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97. Accordingly, the Plaintiffs failed to place before Court credible evidence identifying the exact the portion allegedly encroached upon by the Defendants. PW1 admitted that he was not present during the demarcation and adjudication process. His evidence regarding the location of boundaries was therefore largely derived from what he was allegedly told by his late father. 98. The Plaintiffs did not call any Surveyor to the stand to establish the position of the alleged boundary; the Land Registrar, Narok was not called to confirm that the disputed 6 or 7 acres formed part of land Parcel No. CISMARA/OLCHORO/38; the Plaintiffs did not produce any survey map to demonstrate the alleged encroachment; no expert evidence was tendered showing that the Defendants had crossed beyond the recognized boundary and entered into land Parcel No. CISMARA/OLCHORO/38. 99. It is clear that the Court was invited to find existence of trespass solely on the basis of the Plaintiffs' assertions, ELC CASE NO. E25 OF 2024 Page 39 of 47

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without any technical or independent evidence establishing the precise location of the disputed area. 100. Consequently, this court finds and holds that available the evidence is shy of the threshold required where the dispute concerns the location of land boundaries and alleged encroachment over a specific portion of land. 101. The Plaintiffs produced photographs in an attempt to advance their case. Although PW2 testified that he took the photographs, the photographs merely depict logs, cultivated land and portions of fencing. The said photographs do not identify land parcel No. CISMARA/OLCHORO/38, and neither do they establish ownership of the land appearing therein. Therefore, it is the court’s considered view that no matter how clean or clear the plaintiffs photographs are, they do not by themselves establish trespass where the location remains unproven 102. Accordingly, both the Plaintiffs and Defendants adduced evidence to the effect that there has been a long standing ELC CASE NO. E25 OF 2024 Page 40 of 47

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feud about the location of the access road. The summons dated 10th January 2018 and 26th February 2019, produced by the Plaintiffs themselves demonstrate that local administrators and stakeholders had been addressing disputes concerning the opening and use of an access road affecting land parcel Nos. CISMARA/OLCHORO/38, 1819, 1820, 1821 and 1822. 103. The evidence further revealed the existence of various meetings involving elders, adjudication officials, local administrators and survey personnel. The minutes produced by both parties consistently point to a dispute concerning the location of the access road and the extent of the parties' respective parcels of land. Notably, the minutes of 30th January 2019, indicate that the elders and local adjudication structures concluded that the disputed portion of land belonged to the Defendants' family and that the access road constituted the boundary between the parties. 104. These minutes undermine the Plaintiffs’ testimony that the alleged encroachment/trespass is recent. The Plaintiffs ELC CASE NO. E25 OF 2024 Page 41 of 47

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challenged the Land Registrar’s report and Survey, but failed to table any contrary expert report before this Court. 105. Having disputed the findings of experts and the local administration, the Plaintiffs bore the evidential burden of demonstrating why those findings were erroneous. The Plaintiffs did not summon the Land Registrar for cross examination and neither did they call an independent surveyor. At the very least, the Plaintiffs ought to have produced a rival survey report. 106. The Plaintiffs challenge against the expert findings remained unsupported by cogent evidence. It is also noteworthy that the Plaintiffs’ witnesses supported the existence of an access road. PW1 admitted that a road existed. 107. DW1, DW2 and DW3 all testified that the road had historically separated the parcels of land, and that the disputed area fell on the Defendants' side. While the Defendants’ ELC CASE NO. E25 OF 2024 evidence was also based on historical Page 42 of 47

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knowledge and communal resolutions, it was substantially more consistent than that of the Plaintiffs. 108. Section 16(b) of the Land Adjudication Act Cap 284 provides for the duties of a survey officer during demarcation; among which is to prepare or cause to be prepared a demarcation map of the adjudication section, showing every parcel of land identified by a distinguishing number, except that roads, railways, waterways and lakes need not be identified by a number. 109. Section 18 of the same Act, provides for particular powers of a demarcation officer, among them demarcate any right of way which is necessary for providing a parcel completely surrounded by other parcels with access to a public road or to water and make such alignment of parcels adjoining a public road as may be required in the public interest. 110. From the evidence placed before the Court, it is apparent that the demarcation and establishment of the ELC CASE NO. E25 OF 2024 Page 43 of 47

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existing access road was undertaken several decades ago. The road has, throughout that period, served the surrounding community while simultaneously operating as a physical boundary separating the neighboring parcels of land. To interfere with or relocate a road that has been in existence and considerable in use disruption for to decades the would, established occasion pattern of settlement and movement in the area. It would also have the effect of altering the existing boundaries and potentially annexing a portion of the Plaintiffs’ land to the road without sufficient technical evidence demonstrating that such relocation is warranted. 111. In the circumstances, and having regard to the longstanding existence and use of the access road as the dividing line between the respective parcels of land, Court is the not persuaded that the Defendants could have encroached upon or trespassed onto the Plaintiffs’ portion of land without first crossing the said road. ELC CASE NO. E25 OF 2024 Page 44 of 47

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112. The Plaintiffs did not place before the Court sufficient evidence to demonstrate that the Defendants crossed the established road or otherwise entered into the confines of land Parcel No. CISMARA/OLCHORO/38. 113. Lastly, the court finds that the Plaintiffs invited this Court to fill substantial evidentiary gaps through conjecture and inference. The Court is required to determine disputes on evidence, and not suspicion, assumptions or perceived historical grievances. 114. Having carefully considered the available evidence and the rival written submissions, cited authorities and the relevant provisions of law, the court is not satisfied that the Plaintiffs have proved their case on the required standard of balance of probabilities. For these reasons, the Plaintiffs claim cannot stand or succeed. i. Who bears the costs of this suit? 115. It is trite law that costs are granted at the discretion of the court, but ordinarily they follow the event as was illustrated by the Supreme Court of Kenya in the case of ELC CASE NO. E25 OF 2024 Page 45 of 47

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JASBIR SINGH & 3 OTHERS V TARLOCHAN SINGH RAI & 4 OTHERS [2014] EKLR wherein the court held “……… the award of costs would normally be guided by the principle that, “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails……...” 116. Since the Plaintiffs suit is found not merited, and thus the Defendants are the successful litigants, they are entitled to costs of this suit. 117. Ultimately the court finds and holds that the Plaintiffs have failed to prove their case on the required standard of balance of probabilities, and consequently the Court dismisses the Plaintiffs suit as contained in the Plaint dated 30th September 2024 entirely with costs to the Defendants. It is so ordered Dated, Signed and Delivered Virtually, at Narok this 17 th day of September 2026. ELC CASE NO. E25 OF 2024 Page 46 of 47

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L. Gacheru Judge. 17/9/2026 Delivered online in the presence of: Elijah Meyoki..Court Assistant Ms Cheruto for the plaintiffs Lepore for the defendants L. Gacheru Judge 17/9/2026 ELC CASE NO. E25 OF 2024 Page 47 of 47

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