Nelly Atieno Oluoch v Damaris A. Nyawalo, Milton Obote Kwach & Kenya Bankers Co-operative Savings & Credit Ltd

from the 3rd Defendant under the Kogony Project. The parcels of land the 3rd Defendant sold under this project varied in size. The Plaintiff, the 1st Defendant, Christopher O. Daudi, and Thomas O. Okeyo were allocated and purchased from the 3 rd Defendant parcels of land which were registered as Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 respectively. On allocation and purchase, the parcels of land that became Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 measured 0.05 hectares, 0.05 hectares, 0.03 hectares and 0.02 hectares, respectively. However, Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 were registered as measuring 0.05 hectares, 0.05 hectares, 0.05 hectares and 0.02 hectares respectively. The Plaintiff retained her parcel of land, Title No. Kisumu/Korando/2955, which was registered in her name on 5 th February 1998, while the 1st Defendant and the other original allottees and owners of land Title Nos. Kisumu/Kogony/2956, 2957 and 2958 sold the said parcels of land. The 2nd Defendant was registered as the owner of Title Nos. Kisumu/Kogony/2956 and 2958 on 12th August 2011 and 10th February 2011 respectively, while Carolyne Awuor Okwach became the registered owner of Title No. Kisumu/Kogony/2957 on 26 th November 2009. ELC CASE NO. 609 OF 2025 JUDGMENT Page 2

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The Dispute before the Court: The Plaintiff brought this suit initially against the 1 st and 2nd Defendants only through a plaint dated 15 th June 2011. The Plaintiff amended the plaint on 25th October 2019 to add the 3rd Defendant to the suit. The Plaintiff averred that the 1 st Defendant was the registered owner of Title No. Kisumu/Kogony/2956 while the 2 nd Defendant was her employee and agent; that Title No. Kisumu/Kogony/2956 (Plot No. 2956) was adjacent and shared a common boundary with the Plaintiff’s parcel of land, Title No. Kisumu/Kogony/2955 (the suit property); that the 1 st and 2nd Defendants were engaged in the construction of a building on Plot No. 2956; that 1st Defendant and the Plaintiff acquired their respective parcels of land from the 3rd Defendant; that the suit property and Plot No. 2956 had fixed boundaries; that the 1 st and 2nd Defendants fenced the suit property and Plot No. 2956 as one parcel of land; that the 1 st and 2nd Defendants’ entry and occupation of the suit property was without the authority or consent of the Plaintiff and as such unlawful; and that the 3rd Defendant negligently failed to discharge its duty owed to the Plaintiff as the vendor of the suit property. ELC CASE NO. 609 OF 2025 JUDGMENT Page 3

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The Plaintiff sought judgment against the Defendants jointly and severally for: Possession of the suit property, a permanent injunction restraining the Defendants from entering upon, taking possession, carrying out any construction or excavation or any other activity on the suit property or any part thereof or alienating or interfering by any means howsoever with the suit property or any part thereof; an order compelling the 1st and 2nd Defendants to immediately demolish and remove at their cost, all the structures, buildings, the stone wall and all the things constructed or brought and left on the suit property failing which the demolition and removal of the same be effected by the Plaintiff with the assistance of the Court Bailiff and law enforcement agencies at the expense of the Defendants; an order compelling the 3rd Defendant to properly identify the suit property as per the agreement of sale between the plaintiff and the 3 rd Defendant and handover possession of the same to the Plaintiff; general damages for trespass and any other relief the court deems fit to grant. The 1st and 2nd Defendants filed separate defences, both dated 25 th August 2011, in which they denied the Plaintiff’s claim in its entirety. The 1st Defendant denied that she was the registered owner of Plot ELC CASE NO. 609 OF 2025 JUDGMENT Page 4

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No. 2956 and that the 2nd Defendant was her agent or employee. The 1st Defendant averred that she had sold and transferred Plot No. 2956 to the 2nd Defendant and that she had no interest in the property. The 2nd Defendant denied being an employee or agent of the 1 st Defendant. The 1st and 2nd Defendants denied trespassing on the suit property. The 3rd Defendant filed a defence on 10th December 2019. The 3rd Defendant admitted that the Plaintiff was the registered owner of the suit property; that the suit property shared a boundary with Plot No. 2956 owned by the 1st Defendant; and that the Plaintiff and the 1st Defendant acquired the two properties through the 3 rd Defendant. The 3rd Defendant denied that it had failed to perform its duties owed to the Plaintiff as the vendor of the suit property and that the Plaintiff was entitled to any of the reliefs sought against it. The evidence: At the trial, the Plaintiff adopted her witness statement dated 15 th June 2011 as part of her evidence in chief. In the statement, the Plaintiff reiterated the contents of the plaint, as highlighted above. The Plaintiff produced the documents attached to her list of documents and supplementary list of documents dated 15 th June 2011 and 10th March 2024 as exhibits. The Plaintiff also relied on the survey ELC CASE NO. 609 OF 2025 JUDGMENT Page 5

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report by the District Surveyor filed in court on 28 th May 2012, following a court order made on 6 th October 2011, and another survey report filed in court on 16th May 2018. She told the court that she had assembled building materials on the suit property in December 2010 to start construction thereon and thereafter found the suit property fenced. She stated that she could not access the property. The 1st Defendant told the court that she purchased Plot No. 2956 from the 3rd Defendant and that the same was transferred to her on 5th February 1998; that after owning the property for over 10 years she sold it to the 2nd Defendant on 10th August 2010; that she had no dispute with the Plaintiff when she owned the property; and that she had no further interest in the property and was not involved in the activities being undertaken on the property which were the subject of the Plaintiff’s complaint. The 1st Defendant produced the agreement of sale between her and the 2nd Defendant as an exhibit. The 2nd Defendant testified that he purchased Plot No. 2956 from the 1st Defendant; that after he completed payment of the purchase price, the suit property was registered in his name and he was issued with a title deed which he produced as an exhibit; that he had other parcels of land he was developing adjacent to Plot No. 2956; that ELC CASE NO. 609 OF 2025 JUDGMENT Page 6

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before purchasing Plot No. 2956, he visited the same with the 1 st Defendant and found the property fenced but had no gate; that he did a search and confirmed that the property was owned by the 1 st Defendant; that he thereafter developed the plot without receiving any complaint; that a survey report dated 25 th May 2012 by Francis Owara prepared pursuant to a court order concluded that the suit property did not exist on the ground; that he developed Plot No. 2956 and not the suit property; and that he did not encroach on the suit property as claimed by the Plaintiff. The 3rd Defendant’s witness, Edward Matoke Okibo (DW1), adopted his witness statement dated 9 th December 2019 as part of his evidence in chief and produced the documents attached to the 3 rd Defendant’s list of documents dated 9 th December 2019 as exhibits. DW1 testified that the 3rd Defendant had not committed any wrong doing in relation to the sale of the suit property and Plot No. 2956 to the Plaintiff and the 1st Defendant; that during the allocation of the plots, each allottee was shown his or her parcel of land and the boundaries thereof; that each was also issued with a title deed; that the 1st Defendant sold to the 2 nd Defendant her parcel of land together with that of the Plaintiff; that when the matter was brought ELC CASE NO. 609 OF 2025 JUDGMENT Page 7

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to the 3rd Defendant’s attention, the 3rd Defendant’s representatives went to the site and informed the 2 nd Defendant that he was undertaking construction on the Plaintiff’s land; that the 2 nd Defendant continued with the construction and there was nothing the 1st Defendant could do because she had sold the land; and that the court should give directions on the matter. After the close of evidence, the court ordered, on 10 th December 2014, at the request of the Plaintiff, that a further survey be conducted to identify the boundaries of the suit property and Plot No. 2956. A joint survey was conducted, but each party filed a separate report. The Plaintiff filed a survey report dated 10 th February 2025 prepared by Reboa Geo Limited, the 1st and 2nd Defendants filed a survey report dated 24th February 2025 prepared by Mbok Geoffrey, Senior Land Surveyor, Kisumu County and the 3 rd Defendant filed a survey report dated 7th February 2025 prepared by Isiah Omware Abwajo of Earthscope Survey Services. On 2 nd April 2025, the court ordered, by consent of the parties, that all the survey reports shall be admitted in evidence. The submissions: ELC CASE NO. 609 OF 2025 JUDGMENT Page 8

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The parties made written closing submissions. The Plaintiff filed submissions dated 2nd June 2025. The Plaintiff submitted that there was no dispute about the boundaries of Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 at the time the same were handed over to the owners by the 3rd Defendant; that no such dispute also existed when the 1st Defendant owned Plot No. 2956; that the dispute arose with the entry of the 2 nd Defendant in the picture as the new owner of Plot No. 2956 adjacent to the suit property; that the report filed by the 3 rd Defendant’s surveyor following the order made on 10th December 2024 shed light on the issues underlying the dispute and put the matter to rest; that the survey report revealed that when the parcels of land which became Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 were sold to the original purchasers by the 3 rd Defendant, they measured 0.05 hectares, 0.05 hectares, 0.03 hectares and 0.02 hectares respectively; that the registered sizes of the said parcels of land, however, indicated 0.05 hectares, 0.05 hectares, 0.05 hectares and 0.02 hectares respectively; that all the survey reports filed following the court order of 10th December 2024 concur that the Plaintiff’s land parcel, Title No.Kisumu/Kogony/2955 (suit property) measured 0.2 hectares on the ground; that the source of the boundary dispute was ELC CASE NO. 609 OF 2025 JUDGMENT Page 9

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actually Title No. Kisumu/Korando/2957(Plot No. 2957) which should measure 0.02 hectares according to “Government Record” in 2015 but on the ground was measuring 0.05 hectares; that the increase in the size of Plot No. 2957 is 0.03 hectares which is the exact size of the land missing in the suit property; that the surveyors were unable to ascertain the mysterious increase in the size of Plot No. 2957 because the Mutation form used during the subdivision that gave rise to Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 could not be traced at the land office; and that the beneficiary of the anomaly in the sizes of Plot No. 2956 and the suit property was the 2 nd Defendant. The Plaintiff further submitted that the 2 nd Defendant had trespassed on the suit property by appropriating a portion thereof measuring 0.03 hectares; that the 2 nd Defendant, who admitted at the trial that he owned Title Nos. 2956, 2957 and 2958, had altered the size of Plot No. 2957 in the land records to unlawfully appropriate the suit property while maintaining the illusion that all the boundaries were in the right places. The Plaintiff submitted that the 1 st Defendant was rightly sued as she was the registered owner of Plot No. 2956 when the suit was filed. The Plaintiff further submitted that she was entitled to the reliefs sought in her plaint and urged the court to grant the same. ELC CASE NO. 609 OF 2025 JUDGMENT Page 10

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The 1st and 2nd Defendants filed submissions dated 17th July 2025. The 1st and 2nd Defendants submitted that the survey reports filed in court by the parties’ various surveyors following the order of the court made on 10th December 2024 served to confirm that the Plaintiff’s claim against the 1st and 2nd Defendants had no merit; that the 2nd Defendant had built a wall around Title Nos. 2956, 2957 and 2958 and that the Plaintiff’s own surveyor confirmed that the aggregate size of the three parcels of land tallied with their registered sizes while the size of the suit property owned by the Plaintiff on the ground differed from its registered size; that none of the survey reports established that Plot No. 2956 had encroached on the suit property; that the fact that the suit property was smaller in size than it should be did not mean that it had been encroached by the 2 nd and 3rd Defendants; and that there were other apparent factors that could have contributed to the reduction in the size of the suit property. The 1st and 2nd Defendants further submitted that the Plaintiff chose the wrong parties to blame; and that the Plaintiff should have asked the 3rd Defendant to explain the reduction in the size of the suit property from 0.05 hectares to 0.02 hectares. The 1 st and 2nd Defendants further submitted that the Plaintiff’s suit had nothing to ELC CASE NO. 609 OF 2025 JUDGMENT Page 11

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do with Plot No. 2957; that the dispute was whether the owner of Plot No. 2956 had encroached on the suit property; that in any event, the evidence presented to the court showed that Plot No. 2957 was owned by Carolyn Awuor Okwach, who was not a party to the suit and against whom orders could not be made. The 1 st and 2nd Defendants submitted that the Plaintiff’s prayer in her submissions that the 3 rd Defendant identifies the location of the suit property was a confirmation that she had no case against the 1 st and 2nd Defendants. The 1st and 2nd Defendants urged the court to dismiss the Plaintiff’s suit with costs. The 3rd Defendant filed submissions dated 23rd October 2025. The 3rd Defendant submitted that the dispute between the Plaintiff and the 1 st and 2nd Defendants concerned the boundary between the suit property owned by the Plaintiff and Plot No. 2956 owned by the 2 nd Defendant; that the plaint disclosed no cause of action against the 3 rd Defendant and it should not have been joined to the suit. The 3 rd Defendant submitted that it should have been called by the parties as a witness rather than being joined in the suit as a party; and that the 3rd Defendant had no role to play in the dispute before the court and did not want to be seen to be taking sides in a dispute pitting two of ELC CASE NO. 609 OF 2025 JUDGMENT Page 12

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its members against each other. The 3 rd Defendant urged the court to give directions on the dispute. Analysis and Determination: I have considered the pleadings, the evidence on record and the submissions by the parties. I am of the view that the following are the issues arising for determination in this suit: (a) Whether the 1st and 2nd Defendants trespassed on the land parcel, Title No. Kisumu/Korando/2955(suit property) owned by the Plaintiff; and (b) Whether the Plaintiff is entitled to the reliefs sought in her amended plaint. I will consider these issues together. There is no dispute that the Plaintiff is the registered owner of the suit property and that the suit property, as purchased, transferred and registered in the name of the Plaintiff, measured 0.05 hectares. The survey reports filed in court by the parties, following the order made on 10 th December 2024, show that the suit property measures 0.02 hectares on the ground. According to the Plaintiff, a portion of the suit property measuring 0.03 hectares was fenced by the 2 nd Defendant to form part of the 2 nd Defendant’s land title No. Kisumu/Korando/2956(Plot No. 2956), a ELC CASE NO. 609 OF 2025 JUDGMENT Page 13

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claim which the 2nd Defendant denied. What the court has been called upon to determine is the cause of the disappearance of the portion of the suit property measuring 0.03 hectares and which of the three Defendants is to blame for the same. I am of the view that the survey reports prepared by Reboa Geo Limited, on behalf of the Plaintiff, Mbok Geoffrey, Senior Land Surveyor, Kisumu County, on behalf of the 1st and 2nd Defendants and Isiah Omware Abwajo of Earthscope Survey Services on behalf of the 3 rd Defendant, made an attempt but did not provide an answer to the issue under consideration. From the evidence on record gathered from the said survey reports, when the 3rd Defendant sold the parcels of land, which upon registration became Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 to the original purchasers, including the Plaintiff and the 1 st Defendant, they measured 0.05 hectares, 0.05 hectares, 0.03 hectares and 0.02 hectares, respectively. This is clear from the allocation plan for Kogony Project Phase 1, the letters from the original purchasers forwarding payments for the plots to the 3 rd Defendant, and the letters from the 3 rd Defendant to the purchasers acknowledging payment. The evidence also shows that Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 were registered as ELC CASE NO. 609 OF 2025 JUDGMENT Page 14

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measuring 0.05 hectares, 0.05 hectares, 0.05 hectares and 0.02 hectares, respectively. This is clear from the Registry Index Map (RIM) for Kisumu-Kogony Sheet No. 6, and the certificates of official search produced in court. The size of Plot No. 2957, as allocated and sold to the original registered owner, differs from its registered size. The 3 rd Defendant allocated and sold Plot No. 2957 to Christopher O. Daudi as measuring 0.03 hectares, while its registered size is 0.05 hectares. This parcel of land has increased in size by 0.02 hectares. Land Title Nos. Kisumu/Kogony/2956, 2957 and 2958, as allocated and sold by the 3rd Defendant to the original owners, were supposed to measure a total of 0.10 hectares. Their registered sizes cumulatively came to 0.12 hectares due to the unexplained increase in the size of Plot No. 2957 by 0.2 hectares. It was common ground that the 2 nd Defendant had fenced Land Title Nos. Kisumu/Kogony/2956, 2957 and 2958 together with a perimeter wall. According to the survey report by the Plaintiff’s surveyor, Land Title Nos. Kisumu/Kogony/2956, 2957 and 2958 were fenced together as one, with no distinct boundaries between them, and the ground measurement of the three parcels together brought a cumulative area of approximately 0.11 hectares, which, according to the surveyor, tallied with the registered sizes of 0.10 hectares. Meanwhile, the allocated, purchased, and registered ELC CASE NO. 609 OF 2025 JUDGMENT Page 15

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size of the suit property was 0.05 hectares, while its measurement on the ground was 0.2 hectares. This means that the Plaintiff lost a portion of her land measuring 0.03 hectares. From the foregoing, it has been established that Plot No. 2957 measures 0.05 hectares in the Registry Index Map and the register. This exceeds its measurement at the time of sale to its original owner, Christopher O. Daudi. There is no doubt that changes were made to the allocation map/plan prepared by the 3 rd Defendant during the survey, in the course of which the size of the suit property was reduced to 0.02 hectares and that of Plot No. 2957 was increased from 0.03 hectares to 0.05 hectares. I cannot say with certainty, but it is more probable that the 0.02 hectares added to Plot No. 2957 is part of the land lost by the Plaintiff. The survey and subdivision of the hitherto larger parcel of land sold by the 3 rd Defendant to its members was the responsibility of the 3rd Defendant. The manner in which the survey was conducted, the land subdivided, and the titles issued were within the knowledge of the 3 rd Defendant. As correctly submitted by the 1st and 2nd Defendants, it was for the 3 rd Defendant to explain to the court what happened to the portion of the Plaintiff’s land measuring 0.03 hectares and under what circumstances Plot No. ELC CASE NO. 609 OF 2025 JUDGMENT Page 16

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2957, which, according to the allocation plan, measured 0.03 hectares, increased in size to 0.05 hectares. The 3 rd Defendant did not give this explanation. I do not think it was sufficient for it merely to claim that the mutation form through which it subdivided the original parcel of land which gave rise to Land Title Nos. Kisumu/Kogony/2955, 2956, 2957 and 2958 could not be traced at the land registry. It is worth observing that although the 2 nd Defendant claimed that he owned Land Title Nos. Kisumu/Kogony/2956, 2957 and 2958, the evidence before the court shows that Plot No. 2957 was registered in the name of Carolyne Awuor Okwach, who may be related to the 2 nd Defendant but is not the 2nd Defendant. Since Carolyne Awuor Okwach is not a party to the suit, the court cannot make any prejudicial inference against her as to the circumstances under which she acquired Plot No. 2957, whose size increased from the initial 0.03 hectares to 0.05 hectares. The Plaintiff’s case against the Defendants is based on trespass. Trespass has been defined as any intrusion by a person on the land in the possession of another without any justifiable cause. See, Clerk & Lindsell on Torts, 18th Edition, page 923, paragraph 18-01. The burden ELC CASE NO. 609 OF 2025 JUDGMENT Page 17

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was on the Plaintiff to prove her claim. In Kurshed Begum Mirza v. Jackson Kaibunga [2017] eKLR, the court stated as follows: “[16]… according to section 107 of the Evidence Act, the burden of proof in any case lies with the party who desires any court to give judgment as to any legal right or liability. It is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden. The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus: “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.” From my analysis of the evidence above, I am not satisfied that the Plaintiff has proved her trespass claim against the 1 st and 2nd ELC CASE NO. 609 OF 2025 JUDGMENT Page 18

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Defendants. The Plaintiff has not established that the 1 st and 2nd Defendants have encroached on the suit property. In my view, the 3 rd Defendant is to blame for the loss of or failure to account for the 0.03 hectares of land that it sold to the Plaintiff. It is therefore liable to compensate the Plaintiff for the loss of a portion of her land measuring 0.03 hectares. Conclusion In conclusion, I hereby make the following orders in the matter: 1. The Plaintiff’s suit against the 1 st and 2nd Defendants is dismissed. 2. The 3rd Defendant shall compensate the Plaintiff for the land measuring 0.03 hectares at the market rate prevailing as at 2010, when the Plaintiff discovered the reduction in the size of the land purchased from the 3 rd Defendant as part of Title No. Kisumu/Kogony/2955. 3. The compensation is assessed at Kshs. 150,000/- based on the price of Kshs. 250,000/- the 2nd Defendant paid to the 1st Defendant for Title No. Kisumu/Kogony/2956 which measured 0.05 hectares, under their agreement of sale dated 10 th August 2010. ELC CASE NO. 609 OF 2025 JUDGMENT Page 19

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4. The said sum of Kshs. 150,000/- shall attract interest at the court rate from the date of filing suit until payment in full. 5. Each party shall bear its costs of the suit. 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 Platform in the presence of: N/A for the Plaintiff N/A for the 1 st and 2nd Defendants N/A for the 3 rd Defendant Joanne Omondi -Court Assistant ELC CASE NO. 609 OF 2025 JUDGMENT Page 20

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