Hezron Nyandere Nyagol v Peter Omollo Osano, Evalyn Ngeta Japheth (Sued as the administrator of Japheth Omariba Nyakundi), County Surveyor, Kisumu County, District Land Registrar, Kisumu & Attorney General

property on 6th November 2023 and was issued with a title deed on the same date. The Plaintiff acquired the suit property as a beneficiary of the deceased's estate. The Plaintiff has erected temporary and permanent residential houses on the suit property. The suit property was situated adjacent to land parcel Kisumu/Kasule/462 (Plot No. 462) owned by Pamela Anyango Odhiambo and Elvis Ochieng Odhiambo, and land parcel, Kisumu/Kasule/465 (Plot No. 465) owned by Japheth Omariba Nyakundi, deceased. Plot No. 462 measured 0.23 hectares, while Plot No. 465 measured 0.28 hectares. The owners of Plot No. 462 and Plot No. 465 sold the same to the 1 st Defendant on 24th July 2023 and 28th November 2022, respectively. Upon acquiring Plot No. 462 and Plot No. 465, the 1st Defendant consolidated the same on or about 7 th August 2023 to create the land parcel Kisumu/Kasule/10135 (Plot No. 10135). The 1st Defendant thereafter subdivided Plot No. 10135 on 9 th October 2023 into 16 subplots of various sizes, namely, Kisumu/Kasule/10192-10207 (the subdivisions). The Plaintiff brought this suit against the Defendants on 3 rd February 2024, claiming that the 1st Defendant had laid a claim to a portion of the suit property (disputed land) which was adjacent to Plot No. 465 ELCL NO. E001 OF 2024 JUDGMENT Page 2

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before its consolidation with Plot No. 462, which the Plaintiff had developed with residential buildings. The Plaintiff averred that he conducted a survey which revealed that the disputed land was outside the suit property and was within the 1 st Defendant’s land parcel, Kisumu/Kasule/10197, a subdivision of Plot No. 10135, which resulted from the consolidation of Plot No. 462 and Plot No. 465. The Plaintiff averred that the disputed land had at no time been part of Plot No. 465, and that the same was made part of Plot No. 465 and subsequently Plot No. 10135 through fraudulent and illegal alteration of the boundaries of the suit property and Plot No. 465 in the Registry Index Maps for Kisumu Kasule Registration Section by the 1 st and 2nd Defendants in collusion with the 3rd and 4th Defendants. The Plaintiff averred that following the said alteration of boundaries, the size of the suit property, which was all along 0.2 hectares, was reduced to 0.15 hectares, with a portion thereof measuring 0.05 hectares, moved to form part of Plot No. 465(now Plot No. 10197). The Plaintiff averred that the 1st Defendant had entered the disputed land and threatened to use goons to demolish the Plaintiff’s houses on it, which amounted to trespass. In his amended plaint dated 26 th April 2024, the Plaintiff sought judgment against the Defendants for: ELCL NO. E001 OF 2024 JUDGMENT Page 3

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a) A declaration that a portion of the suit property had been fraudulently annexed to the land parcel, Kisumu/Kasule/465 (now subdivided into Kisumu/Kasule/10192-10207); b) An order directed at the 3rd and 4th Defendants to amend the Registry Index Map for Kisumu Kasule Registration Section to reflect the boundaries established during the adjudication in 1979; c) An order of a permanent injunction restraining the 1 st Defendant from using, constructing on, entering, trespassing on or having any other dealings with the suit property; d) General damages for trespass, fraud and illegalities; e) Costs of the suit and interest. The 1st Defendant filed a statement of defence dated 22 nd July 2024 in which he denied the Plaintiff’s claim in its entirety. The 1 st Defendant averred that the Plaintiff had constructed houses on a portion of the land that was sold to the 1 st Defendant by the family of Japheth Omariba Nyakundi, deceased. The 1 st Defendant denied that the Plaintiff had at any time made an application to the Land Registrar to determine the boundaries of the suit property and the neighbouring plots, and that the 1st Defendant refused to cooperate in the exercise. ELCL NO. E001 OF 2024 JUDGMENT Page 4

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The 1st Defendant denied the alleged interference with the Registry Index Map for Kisumu Kasule Registration Section to annex a portion of the suit property. The 1 st Defendant averred that Plot No. 462 and Plot No. 465 were consolidated and subdivided to give rise to Kisumu/Kasule/10192-10207 lawfully and procedurally. The 1 st Defendant denied trespassing on the suit property. The 1 st Defendant averred that the dispute between the parties was a boundary dispute which should have been determined by the Land Registrar in the first instance. The 3rd, 4th and 5th Defendants filed a joint statement of defence through the office of the Attorney General in which they denied the Plaintiff’s claim in its entirety and put the Plaintiff to strict proof. At the trial, the Plaintiff gave evidence and called three witnesses. The Plaintiff adopted his witness statement, filed together with the plaint, as part of his evidence in chief, and produced the documents attached to his list of documents filed on 3 rd February 2024 and the further list of documents filed on 12th July 2024 as exhibits. The list of documents filed on 12th July 2024 had no attachments. The 1 st Defendant gave evidence and did not call a witness. He adopted his witness statement dated 17th March 2025 as part of his evidence in ELCL NO. E001 OF 2024 JUDGMENT Page 5

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chief and produced the documents in his list of documents as exhibits 1, 2, 3 and 4(a) to 4(p). The 2 nd to 5th Defendants did not give evidence at the trial. After the close of evidence, the parties made written closing submissions. The Plaintiff filed its submissions dated 9 th August 2025, in which he submitted that he had established that he was the legitimate owner of the suit property; that the 1 st Defendant had annexed a portion of the suit property measuring 0.05 hectares; that the annexation of the said portion of the suit property to Plot No. 465 was carried out fraudulently and through the negligence of the 3 rd and 4th Defendants; and that the 1st Defendant had trespassed on the suit property. The 1st Defendant filed submissions dated 7 th October 2025. The 1st Defendant submitted that the dispute between the parties concerned the boundary between the suit property and the parcels of land owned by the 1st Defendant and, as such, should not have been entertained by the court in the first instance; and that the Plaintiff had failed to prove that the 1 st Defendant had encroached on the suit property and that the Registry Index Map for Kisumu Kasule ELCL NO. E001 OF 2024 JUDGMENT Page 6

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Registration Section was tampered with. The 2 nd to 5th Defendants did not file submissions. I have considered the pleadings, the evidence tendered by the parties and their witnesses, and counsel's submissions. I am of the view that the issues arising for determination in this suit are the following: Whether the 1st and 2nd Defendants, with the collusion of the 3 rd i. and 4th Defendants, encroached on and fraudulently and illegally annexed a portion of the suit property measuring 0.05 hectares and made it part of the 1st Defendant’s land parcel, Plot No. 465. ii. Whether the Plaintiff is entitled to the reliefs sought in the plaint. I will consider these issues together. The suit property and Plot No. 465 were registered under the Registered Land Act, Chapter 300 of the Laws of Kenya (repealed). The Registered Land Act was repealed by the Land Registration Act, 2012. Sections 27 and 28 of the Registered Land Act provide as follows: “27. 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 and privileges belonging or appurtenant thereto; ELCL NO. E001 OF 2024 JUDGMENT Page 7

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(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 and expressed agreements, liabilities and incidents of the lease. 28. The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an 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 any, shown in the register; and (b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register: Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.” The two sections have been reproduced in Sections 24 and 25 of the Land Registration Act 2012 as follows: ELCL NO. E001 OF 2024 JUDGMENT Page 8

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24. 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 and privileges belonging or 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 agreements, liabilities or incidents of the lease. 25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an 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 any, shown in the register; 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. ELCL NO. E001 OF 2024 JUDGMENT Page 9

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(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. Section 26 of the Land Registration Act, 2012 provides as follows: 26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. I am satisfied from the evidence on record that the Plaintiff was the registered proprietor of the suit property and that the 1 st Defendant was the registered owner of Plot No. 465 before it was consolidated with Plot No. 462 to form Plot No. 10135. From the evidence on record, the suit property, Plot No. 462 and Plot No. 465 were created during land adjudication, and the suit property was registered in the name of the Plaintiff’s father, Nichodemus Nyagol as the first ELCL NO. E001 OF 2024 JUDGMENT Page 10

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registered owner, Plot No. 462 in the name of Migeni Otieno as the first registered owner and Plot No. 465 in the name of Peter Aguko as the first registered owner. Peter Aguko Seda subsequently sold Plot No. 465 to the 2nd Defendant. Plot No. 465 was immediately adjacent to the suit property and shared a common boundary with it, while Plot No. 462, which was consolidated with Plot No. 465, was next to Plot No. 465 and did not share a boundary with the suit property. The Plaintiff claimed that during land adjudication which gave rise to the suit property, the suit property measured 0.2 hectares and that through fraudulent manipulation of survey and land records by the 1 st and 2nd Defendant in collusion with the 3rd and 4th Defendant, a portion of the suit measuring 0.05 hectares was excised and added to Plot No. 465, thereby reducing the size of the suit property to 0.15 hectares. The burden was on the Plaintiff to prove that the suit property measured 0.2 hectares during the land adjudication and that its size was subsequently reduced to 0.15 hectares through interference with, or tampering with, the survey maps or records by the Defendants. In Halsbury’s Laws of England, 4th Edition, Volume 17, at paras. 13 and 14, the authors have stated as follows: ELCL NO. E001 OF 2024 JUDGMENT Page 11

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“13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. 14. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” The Plaintiff purported to produce in evidence the Adjudication Records for the suit property, Plot Nos. 462 and 465, through his further list of documents filed on 12 th July 2024. These documents were not attached to the Plaintiff’s further list of documents filed on that date and no party referred to them in their submissions. The Adjudication Records would have provided the court with the primary data on the sizes of the three parcels of land at the time of adjudication. In the absence of the Adjudication Record, the court can only rely on the sizes of the said parcels of land given upon first ELCL NO. E001 OF 2024 JUDGMENT Page 12

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registration, which is supposed to mirror the information on the Adjudication Record. From the evidence on record, the suit property was registered on 13 th March 1988 as measuring 0.15 hectares; Plot No. 462 was registered as measuring 0.23 hectares; and Plot No. 465 was registered as measuring 0.28 hectares. Plot No. 462 and Plot No. 465 measured a total of 0.51 hectares upon consolidation into Plot No. 10135. The subdivisions of Plot No. 10135, namely, Plot Nos. 10192-10207 measured a total of 0.51 hectares, which is equivalent to the measurement of Plot No. 462 and Plot No. 465. This means that the sizes of Plot No. 462 and Plot No. 465 remained unchanged after consolidation and subdivision. The sizes never increased or decreased. PW4, Eliud Okungu Ogembo, a licensed surveyor engaged by the Plaintiff to investigate the alleged disappearance of a portion of the suit property measuring 0.05 hectares, produced a report in evidence which was marked as Plaintiff’s Exhibit 3. According to PW4, the suit property measured 0.15 hectares according to the Registry Index Map (RIM), also known as the Preliminary Index Diagram (PID), which was also its registered measurement. PW4 stated in the report that when ELCL NO. E001 OF 2024 JUDGMENT Page 13

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he went to the site of the suit property, the Plaintiff showed him an area measuring 0.20 hectares as constituting the suit property, bringing a difference of 0.05 hectares between the size of the property as registered and appearing on the Registry Index Map (RIM), and as it is on the ground. According to PW4, the actual boundaries of the suit property on the ground were not accurately captured during the land adjudication, resulting in the property's size being understated as 0.15 hectares rather than 0.2 hectares. PW4 concluded in his report that he could not determine what caused the old boundaries of the suit property not to be correctly captured during registration, resulting in a variance between the registered and ground sizes. DW4 recommended that further investigation be carried out in the matter by the Land Registrar, and a thorough survey be undertaken on the suit property and the neighbouring plots to establish their boundaries as they existed before the land adjudication. What I gather from PW4's report and testimony is that the suit property was registered as measuring 0.15 hectares following the land adjudication exercise; that this was the same size captured in the Registry Index Map for Kisumu Kasule Registration Section; and ELCL NO. E001 OF 2024 JUDGMENT Page 14

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that the alleged size of 0.20 hectares was arrived at on the basis of what the Plaintiff termed as the old boundaries of the suit property “which apparently were not captured during the registration process”. It is settled that Registry Index Maps are not authority of boundaries, and that the boundaries as they appear in the said maps are general boundaries which give only the approximate location of the parcels concerned. Sections 18 and 19 of the Land Registration Act 2012 provide as follows: “Boundaries. 18.(1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel. (2)The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section. (3)Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are defined under ELCL NO. E001 OF 2024 JUDGMENT Page 15

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section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, Cap. 299. Fixed boundaries. 19.(1) If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries. (2)The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel. (3) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section”. ELCL NO. E001 OF 2024 JUDGMENT Page 16

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It is possible, as claimed by the Plaintiff, that the actual boundaries of the suit property were not captured in the Registry Index Map for Kisumu Kasule Registration, resulting in the reduction of its registered size. There is, however, no evidence before me that that is the case; and as provided in sections 18 and 19 of the Land Registration Act 2012, and correctly submitted by the 1st Defendant, the jurisdiction to determine boundary disputes rests in the first instance with the Land Registrar. The Plaintiff contended that it had lodged an application with the Land Registrar for determination of the boundaries between the suit property and Plot Nos. 462 and 465, but the exercise was not carried out due to the refusal by the 1 st Defendant to cooperate. The 1st Defendant denied these allegations. My take is that the Land Registrar's jurisdiction to determine boundary disputes under the Land Registration Act 2012 cannot be frustrated by one party's noncooperation. Once the Land Registrar receives an application to determine a boundary dispute, he should be guided only by the law, not by how the parties conduct themselves. Regulations 40 and 41 of The Land Registration (General) Regulations No. 278 of 2017, which deal with re-establishing and ascertainment of the disputed boundaries, provide as follows: ELCL NO. E001 OF 2024 JUDGMENT Page 17

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“40. Application for re-establishing a missing boundary or ascertainment of a boundary in dispute (1) An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section 18(3) of the Act in Form LRA 23 set out in the Sixth Schedule. (2) The Registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for resolution of the dispute if a person has complied with paragraph (1). (3) The Registrar shall notify the office responsible for survey of land of the intended hearing of a boundary dispute and require their attendance if a person has complied with paragraph (1). (4) In determining a boundary dispute lodged in accordance with paragraph (1), the Registrar shall be guided by the recommendation of the office responsible for survey of land. (5) The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs (1) and (2) an opportunity to be heard, make a determination of the dispute and inform the parties accordingly. ELCL NO. E001 OF 2024 JUDGMENT Page 18

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(6) Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notification, appeal the decision to the Court.” Once the Land Registrar received the Plaintiff’s application for the ascertainment of the boundary between the suit property and Plot No. 462 and Plot No. 465 which were disputed, what the Land Registrar was to do according to the foregoing regulations was to notify the 1 st Defendant, who owned Plot No. 462 and Plot No. 465 and others who could be affected by the determination of the said boundary of the application and of his intention to ascertain the boundary and the date of the hearing and to hear “all persons appearing” at the venue of the hearing. If, for any reason, the 1st Defendant failed to appear for the hearing of the dispute, the Land Registrar was supposed to proceed with the ascertainment of the boundary notwithstanding his absence. There is no evidence on record that the 1 st Defendant was notified of the Plaintiff’s application for ascertainment of the boundaries of the suit property and Plot Nos. 462 and 465. I have seen on record a copy of “Boundary Dispute Summons” issued by the County Land Registrar to Nicodemo Nyagol Seda and Japheph Omariba Nyakundi to attend the hearing of the dispute over the boundaries of the suit property and Plot No. 465 on 8 th February 2023 ELCL NO. E001 OF 2024 JUDGMENT Page 19

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at the site of the disputed boundaries. As at this date, both Nicodemo Nyagol Seda and Japheph Omariba Nyakundi were deceased, and the estate of Japheph Omariba Nyakundi had already sold Plot No. 465 to the 1st Defendant. It is clear from the foregoing that neither the 1 st Defendant nor the 2nd Defendant were notified of the Plaintiff’s application for the ascertainment of the boundaries of the suit property and Plot No. 465. It is not true, therefore, that the 1 st Defendant refused to cooperate with the Plaintiff and the Land Registrar to have the boundary dispute between him and the Plaintiff determined. As alluded to earlier, the 1 st Defendant’s non-cooperation in the exercise was inconsequential in law. The upshot is that the boundaries between the suit property and Plot No. 462 and 465 have never been determined and fixed. The boundaries remain general, and this court has no jurisdiction to determine the same. It is my finding, therefore, that the Plaintiff has failed to prove that the 1st Defendant has encroached on the suit property. The suit property was registered as measuring 0.15 hectares, while Plot Nos. 462 and 465 were registered as measuring 0.51 hectares in total. The Plaintiff has not proved that the size of Plot Nos. 462 and 465 has increased from the said registered size due to the alleged annexation ELCL NO. E001 OF 2024 JUDGMENT Page 20

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of a portion of the suit property measuring 0.05 hectares. There is also no evidence that the measurement of the size of the suit property was not correctly captured during the land adjudication exercise. Such a determination could only be made by the Land Registrar upon hearing the parties. There is also no evidence that any of the Defendants interfered with the Registry Index Map. In conclusion, I find that the Plaintiff has failed to prove his case against the Defendants to the required standard. The suit is accordingly dismissed with costs to the 1 st Defendant. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this day of September 2026 28 th E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: MR. Awonda h/b for Mr.Mwamu S.C for the Plaintiff N/A for the 1 st Defendant N/A for 2 nd Defendant ELCL NO. E001 OF 2024 JUDGMENT Page 21

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N/A for the 3 rd , 4th and 5th Defendants Joanne Omondi -Court Assistant ELCL NO. E001 OF 2024 JUDGMENT Page 22

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