Paul Kiplagat & Susan Kimeli Sugut v Dennis Nyangiri & Bernard Otupe; Andrew Kerongo Arisa & Peter Osiemo Arisa (Interested Parties)

(a) Permanent injunction for trespass on parcel of land No. Njoro/Ngata Block 2/3922. (b) The resurvey, marking of new boundaries on plaintiffs’ parcel of Land No. 3922 done on 15th February, 2018. (c) General damages (d) Costs. 2. Upon being served with copies of plaint and summons to enter appearance, the 1st Defendant entered appearance and filed a statement of defence dated 20 th June, 2018. The Amended statement of defence is dated 21st March, 2022. 3. In his counterclaim, he claims that the 1st Plaintiff altered the boundaries after the sale and issuance of title deeds resulting into a reduction in the size of the 1 st Defendant’s parcel. He prays that a resurvey be undertaken to ensure the acreage on the title deeds tallies with what is on the actual ground. 4. The 2nd Defendant entered appearance and filed a statement of defence dated 13th April, 2018 and Amended on the 16th March, 2021. It’s his case that on the 6 th February, 2018, with the consent of the Plaintiffs he placed new beacons to reflect the position that the 1st Defendant and the Interested Parties get one acre each which they bought from the Plaintiffs. He ELC 109 OF 2018 2

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did this in the presence of the area chief, the assistant chief and all the parties’ were represented. 5. The 1st and 2nd Interested Parties filed a statement dated 17 th March, 2022 denying each and every allegation in the Amended Plaint. 6. It is the Plaintiff’s case that the Defendants and the Interested Parties trespassed onto the 1 st Plaintiff’s parcel of land and proceeded to resurvey and redirect the boundary between Njoro/Ngata Block 2/3922 and that of the 1 st Defendant Njoro/Ngata Block 2/3923. 7. The particulars of fraud against the 1 st and 2nd Defendants are given in paragraph 12 of the Amended Plaint as: (a) Waiting for 5 years for Plaintiff to develop their parcel of land. (b) Moving boundaries of titles Nos.3923 and 3924 (Njoro/Ngata Block 2/3923 and 2/3924 and purporting to recover land from Plaintiffs’. (c) Plaintiffs have title deed and 2 nd Defendant has created bad blood between neighbours. (d) Claiming/alleging that he made an error of/in survey five years down the line. (e) Being fraudulent all along. ELC 109 OF 2018 3

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EVIDENCE OF THE PLAINTIFFS 8. PW1, Paul Kibet Kiplagat, the 1 st Plaintiff testified on the 17 th January, 2023. He adopted his witness statement undated and filed on the 8th March, 2018 as his evidence in chief. He told the court that he sold one acre to Dennis Ashton Nyangiri (the 1st Defendant) vide the sale agreement dated 13th May, 2013. He was paid the full purchase price and the 1st Defendant was issued with a title deed. He produced the documents in the bundle dated 20 th January, 2018 as exhibit P1 to P6 respectively. 9. It is his testimony that the court ordered the resurvey to be undertaken because the 1st Defendant complained that he got less land. He stated that the resurvey was done without his permission hence it amounted to trespass. He prays for the relief sought in the Amended plaint. 10. When cross examined by Mr. Ochang for the 1st Defendant he maintained that his land was moved by 6.2 metres. He also stated that he did not know the acreage on the ground. ELC 109 OF 2018 4

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11. When cross-examined Mr. Mboga for the 2nd Defendant, he stated that he initially gave the 2 nd Defendant instructions to sub-divide the original parcel Njoro/Ngata Block 2/3246 (Kirobon). He intended to sell two (2) acres. He also stated that the boundary was shifted by the owner of Njoro/Ngata/Block2/3924. 12. On re-examination he stated that the land was surveyed by the 2nd Defendant. That he sold to the 1 st Defendant 1 acre. This marked the close of the Plaintiff’s case. EVIDENCE OF THE DEFENDANTS 13. DW1, Dennis Ashton Nyangiri, the 1st Defendant adopted his witness statement dated 24 th April, 2018 as his evidence in chief, he also produced the documents in the bundle dated 24/4/2018 as exhibits D1 to D4 respectively. 14. It is his testimony that he bought one acre vide the sale agreement dated 13th May, 2025. He has a title deed. Later he realised he was occupying ¾ acre hence the resurvey of 6th February, 2018. He told the court that the Plaintiffs were present and consented to the exercise. He maintained that he claims one acre from the plaintiffs. He prays that the Plaintiffs’ suit be dismissed. ELC 109 OF 2018 5

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15. When cross-examined by counsel for the 2 nd Defendant, he stated that the boundary changed after fencing. He said a resurvey was done in 2018 but when the beacons were relocated the Plaintiffs became violent. He further stated that the 1st Plaintiff demolished the fence and he made a Report at Baraka Police Post. 16. When cross-examined by Ms. Kerubo for the Interested Parties he admitted that the Interested Parties also bought one acre but the 1st Plaintiff is not cooperative. 17. When cross-examined by counsel for the Plaintiffs, he stated that the boundaries were changed after purchase. He further stated that the area on the ground is less than one acre. 18. On re-examination he maintained that he ought to be given one acre which he bought. 19. DW2, Augustine Rotich the Chief Ngata Location testified on the 9th February, 2026. He got information that there was a boundary dispute in his area. The Plaintiffs had sold one acre of land to the 1 st Defendant. He visited the land on the 30th January, 2018 in the presence of the Assistant Chief and the village elder. parties were present. ELC 109 OF 2018 The Plaintiffs and all the The 1 st Defendant claimed that the 6

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Plaintiffs had encroached onto his land so that he now occupies less than one acre. It was agreed that a surveyor would visit the land on 6th February, 2018. 20. On the 16th February, 2018, the 2nd Defendant visited the land and confirmed that 1st Plaintiff had moved his boundary so that the 1st Defendant’s portion is less than one acre. With the consent of the Plaintiffs the surveyor rectified the boundaries and everyone was satisfied. The 1 st Defendant then hired people to fence the one acre but the 1st Plaintiff demolished it the following day. 21. When cross-examined by Mr. Mboga for the 2nd Defendant, he stated that the surveyor confirmed the 1 st Defendant’s land was less than one acre. He confirmed the Plaintiffs were present and consented to the exercise but removed the fence the following day. He stated that the 1 st Defendant is entitled to the one acre. 22. When cross-examined by Ms. Kerubo for the Interested Parties, he stated that the two buyers were to get one acre each. When cross-examined by the Plaintiff’s counsel, he stated that the 1st Defendant bought one acre from the Plaintiffs. ELC 109 OF 2018 7

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Further that it was agreed that the surveyor do come to the land. 23. On re-examination he reiterated the surveyor was to confirm the two buyers got one acre each and the boundaries be fixed accordingly. 24. DW3, Killian Gichia, a surveyor from the Regional Survey Office produced the Report which was prepared by Charles Ouma who has since been transferred to Siaya. He produced the Report dated 27th September, 2018 which was prepared following a court order. He confirmed that there was interference with the boundary and the one acre on the title deed should match the area on the ground. The surveyor confirmed that there was a problem with the measurements contained in the mutation and the parties ought to agree so that the mutation can be redrawned . The Report was produced as an exhibit in the case. 25. When cross-examined by the 2nd Defendant’s counsel, he stated that the Plaintiffs ought to ensure that Njoro/Ngata Block 2/3923 and 3924 are one acre each. ELC 109 OF 2018 8

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When cross-examined by counsel for the Interested Parties, he maintained that 3923 and 3924 ought to measure one acre each. 26. When cross-examined by the Plaintiff’s counsel, he maintained that each buyer should get one acre each. This marked the close of the 1st Defendant’s case. 27. DW4, Bernard Simiyu Otupe Wanyonyi, the 2 nd Defendant testified on the 9th February, 2026. He adopted his witness statement dated 28th February, 2018 as his evidence in chief. He also produced the documents in the bundle dated 10th March, 2021 as exhibit D1 to D5 respectively. He confirmed that the 1st Plaintiff was his client. He had earlier instructed him to sub-divide Njoro/Ngata Block 2/3426 (Kirobon) into three parcels; 3922, 3923 and 3924 respectively. He completed the sub-division in the year 2013. He was later required to do a resurvey because the 1st Plaintiff had moved the boundaries making 3923 and 3924 less than one acre. He further stated that on resurvey he established the beacons which had been shifted from the original position he had surveyed earlier. ELC 109 OF 2018 9

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28. He stated that he fixed the boundaries but did not rectify on the map. He later learnt that the 1 st Plaintiff had destroyed the fence yet he had not objected to the resurvey. He stated that for the 1 st Defendant to get his one acre, there must be an extension into 3922 which belonged to the 1st Plaintiff. 29. When cross-examined by the counsel for the 1 st Defendant, he stated that the area chief called him to do a resurvey. He did so in the presence of the Plaintiffs and other villagers. He confirmed that each buyer ought to get one acre on the ground which would affect the size of 3922 (the Plaintiffs’). He also stated that it was responsibility of the seller to give to the buyer the correct acreage. 30. When cross-examined by counsel for the Interested parties, he maintained that each buyer ought to get one acre on the ground. 31. When cross-examined by counsel for the Plaintiff, he told the court that he did a resurvey upon receiving a letter from the area chief. That there was no suit pending at the time. ELC 109 OF 2018 10

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32. On re-examination he stated that he did a resurvey on the 16th February, 2018 before the suit was filed. This marked the close of the 2nd Defendant’s case. 33. Peter Osiemo Arisa the 1st Interested Party testified on the 27th April, 2026. He adopted his witness statement dated 2nd March, 2021 as his evidence in chief. He also produced the documents in the Bundle dated 17th March, 2022 as exhibits IP1 to IP6 respectively. He told the court that they bought one acre and therefore entitled to the same. 34. When cross-examined by counsel for the Plaintiff, he stated that they bought the one acre jointly with his brother. He stated that the 1st Defendant realised that his portion was less than one acre hence the resurvey by the 2 nd Defendant. 35. When cross-examined by counsel for the 1 st Defendant, he stated the 1st Defendant bought the adjacent land. He admitted that the 1st Defendant is entitled to one acre. He also admitted that the Plaintiffs have the responsibility of ensuring the 1st Defendant got one acre. He also stated that they were represented when the resurvey was done. ELC 109 OF 2018 11

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36. When cross-examined by counsel for the 2 nd Defendant, he confirmed they bought the one acre from the plaintiffs which parcel is Njoro/Ngata Block 2/3924 (Kirobon). He also admitted that the boundaries were shifted thereafter to ensure that the land was one acre. He further stated that the boundaries were shifted by the 1 st Plaintiff towards the 1st Defendant’s portion. He maintained that they are entitled to one acre. This marked the close of the Interested Parties’ case. 37. At the close of the oral testimonies’ parties tendered their written submissions. THE PLAINTIFFS’ SUBMISSIONS 38. They are dated 4th May, 2026. They raise three issues for determination:(a) Whether the defendants had locus standi to reopen the concluded survey and title deed issuance of 2013? (b) Whether entitled to the an plaintiffs/applicants order of injunction in are the circumstances? (c) Whether the court’s order was required to authorise actions by the defendants? (d) ELC 109 OF 2018 Who should bear costs of the suit? 12

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39. Counsel submitted that the Defendants entered the Plaintiff’s land to undertake resurvey without the Plaintiff’s consent. That the Plaintiffs are entitled to the orders of injunction as sought. That the resurvey was done without a court order hence illegal. 40. It is submitted that the 1st Defendant has had the title deed since 2015 yet he had never questioned the size of the land. Further that the resurvey was done in the absence of the plaintiffs hence the trespass. 41. It is also submitted that the title deeds have not been challenged. That the fraud against the Defendants has been proved. They pray that the reliefs in the Amended Plaint be granted. THE 1ST DEFENDANT’S SUBMISSIONS. 42. By the time of writing this judgment, the 1 st Defendant had not filed his written submissions. THE 2ND DEFENDANT’S SUBMISSIONS. 43. They are dated 9th June, 2026. Counsel submitted that the 2nd Defendant carried out his survey work diligently and ELC 109 OF 2018 13

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professionally without causing any confusion or tension. That he placed beacons in the presence of the area chief, pursuant to a written agreement of the parties. 44. It is submitted that the 2nd Defendant cannot be held liable for acts done without his instructions and knowledge. The 1st Plaintiff having taken the front part of parcel No.3924, sold the remainder to the 2 nd Interested Party on the understanding that he would push the boundary into the 1st Defendant’s land hence the 1st Defendant’s parcel became less by ¼ acre. 45. This arrangement was made by the Plaintiff without involving the 2nd Defendant’s hence the boundaries on the ground were shifted without amendments to the area map. It is further submitted that the 2nd Defendant did his survey work diligently. The Plaintiff with full knowledge that parcel No.3924 was ¾ of an acre sold it as an acre and embarked on shifting the boundaries. He also participated and consented to the placement of new beacons and he is estopped from rescinding from the agreement. The 2 nd Defendant’s prays that the Plaintiffs’ suit be dismissed. THE 1ST AND 2ND INTERESTED PARTIES’ SUBMISSIONS ELC 109 OF 2018 14

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46. They are dated 5th May, 2026. They raise eight issues for determination: i. Whether the plaintiff has proved their suit on a balance of probability. ii. Whether the plaintiff is entitled to the relief sought. iii. Whether the counter claim by the 1 st defendant and the interested parties is merited. iv. Whether the interested parties occupy excess land. v. Whether any boundary dispute is attributable to the interested parties. vi. Whether the interested parties ought to be excused from these proceedings. vii. Whether the interested partes are entitled to directions on costs. viii. Who should bear the costs of the case and or counter claim. 47. Counsel submitted that the 1st Defendant and the Interested parties bought one acre each. That the Plaintiffs have taken advantage of the mistake made during subdivision to deny the aggrieved parties their rightful entitlement. 48. It is submitted that the Plaintiffs are not entitled to the reliefs sought. ELC 109 OF 2018 Further that the Interested Parties hold a 15

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title deed for land parcel No. Njoro/Ngata Bock 2/3924 which reflect the exact portion purchased from the Plaintiffs. Reliance is placed on Section 26 of the Land Registration Act, 2012 and the case of Henry Muthee Kathurima vs Commissioner of Lands & Another (2015) eKLR. Their ownership ought to be upheld. 49. It is submitted that the Plaintiffs have not produced afresh survey report, or independent expert opinion, or any other credible evidence to demonstrate that the Interested Parties occupy land beyond their registered entitlement. 50. It is submitted that the boundary dispute is between the 1 st Defendant and the Plaintiffs and the Interested Parties are not party to any act of boundary interference and have at all times occupied the part demarcated and beaconed as theirs. Reliance is placed on the case of Joseph Mwangi Kibe vs Benson Kamau Mbugua (2018) eKLR. 51. It is submitted that the Interested Parties ought to be excused from these proceedings and that they be paid costs. ANALYSIS AND DETERMINATION. ELC 109 OF 2018 16

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52. I have considered the pleadings, the evidence on record, the written submissions, and the authorities cited. The issues for determination are: (i) Whether the Plaintiffs have proved their case as against the Defendants and Interested Parties? (ii) Are they entitled to the reliefs sought in the Amended Plaint? (iii)Is the 1st Defendant entitled to the reliefs sought in the counter claim? (iv) What orders should issue? (v) Who should bear costs of the suit? 53. It is the Plaintiffs’ case that the 1 st and 2nd Defendants entered the Parcel known as Njoro/Ngata Block 2/3922, undertook a resurvey and fixed new beacons. That this amounts to trespass. They also pray that the resurvey be declared null and void. 54. It is not in dispute that the Plaintiffs sold the 1 st Defendant and the Interested Parties one acre each. The two sale agreements were produced as exhibits in this case. The Plaintiffs do not deny any of them. It is also not in dispute that each has taken possession of their respective parcels. 55. DW4, Bernard Simiyu Otupe, a land surveyor confirmed that he had been instructed by the 1 st Plaintiff to undertake ELC 109 OF 2018 17

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sub-division of Njoro/Ngata Block 2/3426 (Kirobon) as he desired to sell two acres. He told the court that the sub- division gave rise to 3922, 3923 and 3924 respectively. The land parcel No. Njoro/Ngata Block 2/3426 (Kirobon) measures 3.083 hectares. From the mutation form 3922 measures 1.5088 hectares, 3923; 0.404 hectares, 3924; 0.404 hectares. It is clear that 3922 appears to be bigger than 3923 and 3924. The title deed for the Interested Parties was issued on 13 th June, 2014 while the 1st Defendant’s was issued on the 16 th January, 2014. The 1st Plaintiff’s was issued on 9 th June, 2015. 56. The 1st Defendant later discovered that his portion was less than one acre. This prompted the events of 16 th February, 2018 whereby the 2nd Defendant with the consent of all the parties undertook a resurvey in order to ensure that the 1 st Defendant got the one acre. 57. It appears after the purchase the Plaintiffs took advantage of the mistake on the mutation form and got a title deed which shows that the 1st Plaintiff got more land than was on the ground. ELC 109 OF 2018 18

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58. It is his responsibility to ensure that the 1 st Defendant and the Interested Parties, get the one acre they bought on the ground. He cannot run away from it. 59. It is my view that the resurvey was undertaken in their presence and with their consent. This cannot amount to trespass. The particulars of fraud raised against the 1 st and 2nd Defendants have not been proved at all. No iota of evidence has been adduced to prove the fraud. 60. I find that the Plaintiffs have failed to prove their case against the Defendants or at all. It therefore means they are not entitled to the reliefs sought in their Amended Plaint. The Plaintiffs’ suit is dismissed. 61. It is on record that the 1st Plaintiff demolished the fence put up by the 1st Defendant after the resurvey. The 2 nd Defendant did his survey work diligently before and cannot be faulted. 62. It appears the 1st Plaintiff shifted the boundaries when he realized the land sold to the Interested Parties was less than one acre which affected the 1st Defendant’s portion. 63. A resurvey ought to be undertaken to ensure that the 1 st Defendant and Interested Parties get their respective one acre. ELC 109 OF 2018 This means that the 1 st Plaintiff’s portion will be 19

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affected. He will not be prejudiced because he is the seller to both buyers. 64. It is my view that a resurvey ought to be undertaken by the Regional Surveyor Office and thereafter the area map be amended to show the changes. This exercise ought to be undertaken expeditiously. All the parties have a stake in the peace that will prevail thereafter. The costs of the exercise shall be shared by all the Plaintiffs, the 1 st Defendant and the interested parties. 65. In conclusion I find that the counterclaim is merited. 66. Accordingly, I make the final disposal orders as follows: (a) The Plaintiffs’ suit is dismissed. (b) A resurvey be undertaken by the Regional Surveyor to ensure that the one acre, in the 1 st Defendant and the Interested Parties’ titles match the area on the ground. (c) The Mutation be redrawn and the area map be amended accordingly to reflect the changes. (d) These should be done within ninety (90) days from the date of this judgment. (e) ELC 109 OF 2018 The Plaintiffs shall bear costs of the suit. 20

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Judgment Dated, signed and Delivered virtually at Nakuru this 24TH of September 2026 L. KOMINGOI JUDGE IN PRESENCE OF:Mr. Kipsang for the Plaintiffs Mr. Ochang for the 1st Defendant Mr. Mboga for the 2nd Defendant No appearance for the Interested parties Court Assistant: Irene/Derrick ELC 109 OF 2018 21

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