Esther J. Rotich (Suing as the Legal administrator of the Estate of Fredrick Rotich) v County Government of Baringo, Trustees Full Gospel Churches of Kenya & 12 Others

PLAINTIFF’S CASE 3. PW1, Esther Rotich, adopted her witness statement dated 10 th May, 2017, as her evidence in chief and produced her list of documents dated 10 th May, 2017, as PEx No. 1 to 5. 4. PW1 testified that the Church, the 2nd Defendant is in occupation of the parcel of land and the rest of the defendants are currently not in occupation. She stated that she sued the rest of the defendants as they came with the County Surveyor to excise a portion of land from her parcel of land. 5. Upon cross-examination by the counsel for the 1st Defendant, PW1 stated that the County government of Baringo is not in possession of the suit land and her claim is in respect of the attempt by the County Surveyor from Baringo County who came in 2017 to subdivide her parcel of land. 6. Upon cross-examination by the counsel for 2nd to 9th Defendants, PW1 testified that the 3rd Defendant passed on in 2023, and the 4 th, 5th, 6th and 7th Defendant do not occupy the land which measures 7acres. It was PW1’s testimony that the court ordered that a survey be carried out on the suit land, which was done but she was not sure whether a report was filed. She further stated that she did not give the church permission to put up a structure, but they ended up building a church. 7. Upon re-examination by counsel, PW1 stated that the church had asked for a shade where they could pray around 1997-1998, but she did not allow them to build a structure. She also stated that she sued the county NAKURU ELC NO. 196 OF 2017 – JUDGMENT 2

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government because the Surveyor came to survey her land to give other people plots. 8. PW2 Gibson Wahome Werugia, a licensed Surveyor testified he prepared a report dated 2nd June 2023 which he produced a Pex No. 6. He stated that he relied on the existing RIM for Lembus/Kiptoim/182, which is on sheet 3 and 4 as the plot is on two sheets He further testified that he also got the RIM for Kiplombe sheet No.3, which maps do not indicate that t there are existing routes on plot No.182. 9. PW2 also testified that stock routes were there during colonial days, which were used to transport cattle in vast acres, and the acreage of the suit plot is 29.84 Hectares while the title indicated it as 28hectares. It was his evidence that after looking through the records he found that Lembus Kiptoim was surveyed in 1960s’ but they were not accurate. The idea was to settle people, and that the difference of 1.84 Hectares was not unusual for surveys that were done in the settlement areas in the 1960s. 10. Upon cross-examination by the counsel for the 1st Defendant, PW2 stated that the current survey is being updated to reflect what is on the ground, and there is no indication that Baringo County government is in occupation. PW2 testified that the stock route was extinguished when the land was subdivided. 11. On cross-examination by counsel for the 2nd to 9th Defendants, PW1 testified that he was to determine the acreage and the situation on the ground. He stated that the boundaries were intact for parcel No.182, and there is a church within Plot No.182, which borders Plot No.226 on NAKURU ELC NO. 196 OF 2017 – JUDGMENT 3

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Kiplombe Settlement Scheme, and that there is a road within Plot No. 226 Kiplombe Settlement Scheme. DEFENCE CASE 12. DW1, Reuben Kipsumbai Rono, adopted his statement dated 17 th July, 2017, as his evidence in chief and testified that the Plaintiff is a neighbor three kilometers away. DW1 stated that there is a stock route near the road and he has not encroached on the Plaintiff’s land. 13. DW1 testified that the Plaintiff wanted to encroach the land and stated that they had requested the County to allocate them the land of which they were not allocated. He prayed that the Plaintiffs suit be dismissed with costs. 14. On cross-examination, DW1 testified that they elected a committee that would go to the Council to seek allocation of land along the stock route. It was his testimony that he was one of the people who wanted to be allocated plots on the stock routes, but stated that he was neither aware whether the stock route is on the map nor the acreage of the stock route. 15. DW1 further testified that they went to Eldama Ravine to see the Council officials, but did not write a letter. He also stated that the Plaintiff has 70 acres and there is a stock route road reserve and a road. He also confirmed that he does not have land on the stock route. 16. DW2, Joseph Kiprono Korir Chepkonga adopted his statement dated 25th, July 2017, as his evidence in chief and produced list of documents dated the same date and testified that the stock route has been in existence since NAKURU ELC NO. 196 OF 2017 – JUDGMENT 4

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the colonial time. It was his evidence that he neither has land on the stock route nor stays near the Plaintiff’s land, as he comes from another sub-location. 17. On cross-examination, DW2 testified that he is a chief of Lembus Kiptoim Location, and stated that the Plaintiff’s parcel is next to a road and the stock route. Further, the stock route is between the old road and the Plaintiff’s parcel of land. 18. DW3 Kipkogei Lagat, a Land Surveyor with the Ministry of Lands, testified that the court directed the District Surveyor to go to the suit land on 2nd December, 2021, and measure the suit land and file a report to ascertain whether the Defendants are on the suit land or not. He stated that they went to the ground on 11th January, 2022, and compared the measurements on the map sheets 3 and 4. 19. DW3 further testified that the suit land measures 28.45 hectares on the ground but the title indicates 28.04 hectares which is not a big difference. Further that there was a church on the land. It was DW3’s evidence that the stock route was 2.27hectares, equivalent to 5.6 acres. He produced the report dated 13th January, 2022 as Dex No.1, and stated that the settlers had left a stock route for livestock so that the animals do not go to the road.DW3 stated that the stock route is public land which belongs to the government. 20. DW3 was referred to a letter dated 7th November, 2001, addressed to PS Agriculture relinquishing of the stock route which is trust land under the NAKURU ELC NO. 196 OF 2017 – JUDGMENT 5

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County government, which he produced as Dex No.2, and confirmed that there was encroachment on the suit land. 21. On cross-examination by counsel, he stated that he prepared the Report and the defendants are not on the suit land, he also never saw the defendants on the stock route and that the stock route is not captured on the map as it is not part of Plot No. 182. It was DW3’s testimony that Plot No. 182 borders a road between 180 and 182 as a tarmac road, which is not captured in the RIM. He stated that there was an old road and when the new road was constructed, it shifted to Lembus Kiplombe Sheet. 22. On Surveyor Werugia’s Report (PW2), DW3 stated that he disagrees with the acreage on the report, as the map does not indicate that there is a stock route, and the existence of a fence on the plot. The stock routes, fall under road reserves, which are handled, by county government and the national government. 23. On re-examination by counsel, he testified that Mr. Werugia’s report talks about a stock route, the map does not capture the tarmac road, and that the title for Plot No. 182 and the ground do not tally. PLAINTIFF’S SUBMISSIONS 24. Counsel for the Plaintiff filed submissions dated 12 th March, 2026, and identified the following issues for determination: a) Whether there exists any lawful or identifiable stock route affecting the Plaintiff’s land known as Title No. Lembus/Kiptuim/182. NAKURU ELC NO. 196 OF 2017 – JUDGMENT 6

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b) Whether the Defendants’ action amounts to trespass upon the Plaintiff’s land and whether the Plaintiff is entitled to injunctive relief? 25. On the issue as to whether there exists any lawful or identifiable stock route affecting the Plaintiff’s land known as Title No. Lembus/Kiptuim/182,counsel submitted that although the Defendants base their defense on the claim that a historical stock route exists on the property, they have provided no documentary, cadastral, or statutory evidence to support this assertion. Surveys conducted on 13th January,2022, by the District Surveyor for Koibatek/Mogotio and on 2 nd June, 2023, by licensed surveyor Wahome Werugia, PW2, both confirmed that the parcel's boundaries align with the Registry Index Map. 26. Counsel further submitted that Mr. Werugia PW2, clarified that the maps show no stock route in the registration section, and during crossexamination, the District Surveyor could not locate the alleged stock route on the map or produce any gazette notice verifying its establishment. Additionally, the Defendants presented neither any gazette notices, survey plans, or Part Development Plans showing a lawful excision or allocation of public utility land, nor any registered title or instrument granting them rights to the property. 27. Regarding the second issue as to whether the Defendants’ action amounts to trespass upon the Plaintiff’s land and whether the Plaintiff is NAKURU ELC NO. 196 OF 2017 – JUDGMENT 7

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entitled to injunctive relief, counsel submitted that while the 2 nd Defendant Trustees of the Full Gospel Churches of Kenya claim to have been allocated a portion of the alleged stock route by the 1 st Defendant County Government of Baringo to construct a church, the Plaintiff asserted that a county government lacks the legal authority to allocate road reserves or public utilities. Such power belongs strictly to the National Land Commission, rendering any such purported allocation unlawful and void ab initio. 28. It was counsel’s submission that the 2nd Defendant has no lawful right or interest over any portion of Lembus/Kiptuim/182 and its continued occupation and construction thereon amount to trespass. Consequently, counsel submitted that the Plaintiff is entitled to the orders sought for demolition, eviction, a permanent injunction against further interference, and costs, having proved her case on a balance of probabilities. 2ND -14TH DEFENDANT’S SUBMISSIONS 29. Counsel for the Defendants filed submissions dated 17 th July 2026, and identified the following issues for determination: a) Whether the 2nd -14 defendants trespassed upon the plaintiff's parcel Title Lembus / Kiptuim /182. b) Whether the area occupied by the 2 nd -14th lies within the stock route. NAKURU ELC NO. 196 OF 2017 – JUDGMENT 8

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c) Whether the stock route is indefinable from the plaintiff's parcel Title Lembus / Kiptuim/ 182. 30. On the issue as to whether the 2 nd to 14th defendants trespassed upon the plaintiff's parcel Title Lembus / Kiptuim /182, counsel submitted that the Defendant have not encroached and or trespassed on to the plaintiff's suit land. Further that they neither have a claim to the plaintiff's title nor any portion thereof. 31. It was the 2nd to 14th Defendant’s case that the area they occupy was allocated to them by the County Government of Baringo (1st defendant), which falls outside the plaintiff's parcel of land. Further that the stock route area measures 2.27 Ha, which stretches beyond Title No. Lembus / Kiptuim /182. Measuring 28.0Hectares. The Defendants claimed that the excess of 1.89 Ha fenced by the plaintiff forms part of the 2.27 Ha of the stock route area allocated by the 1st Defendant to the 2nd, 10th, 11th, 12th, 13th & 14th defendants. 32. Counsel relied on the provisions of Section 3 (1) of the Trespass Act Cap 294, and submitted that the defendants have not intruded into parcel Lembus/Kiptuim/182, measuring 28.0 Ha, but occupy an adjacent area belonging to the 1st defendant formerly designated as a stock route. NAKURU ELC NO. 196 OF 2017 – JUDGMENT 9

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33. On the second issue as to whether the area occupied by the 2 nd to _14th Defendants lies within the stock route, counsel submitted that both survey reports (by PW2 & DW1) acknowledge the existence of the obsolete stock route in the area though not reflected in the area map. The allocation to the 2nd Defendant was temporary hence no allotment letter was issued, and the area remained the property of the 1st Defendant. ANALYSIS AND DETERMINATION 34. The issues for determination are as follows: a) Whether there is a stock route on the suit Land, Lembus/Kiptum/182. b) Whether the Defendants trespassed on the suit land, and if so, is the Plaintiff entitled to the reliefs sought. 35. On whether there is a stock route on the suit land, the Defendants claimed that there was a stock route, which has been in existence during the colonial times which runs through or near the suit property Lembus/Kiptum/182 and was used by the settlers for the movement of livestock. 36. It should be noted that there were two survey reports and RIMs that were produced but neither the survey report nor the RIMs depict a stock route within the suit land.DW3 during cross examination stated that a stock route does not appear on the map and is not part of the suit land. DW3 a government surveyor did not produce any evidence to show the existence NAKURU ELC NO. 196 OF 2017 – JUDGMENT 10

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of a stock route despite claiming knowledge that such routes exist elsewhere. 37. PW2, a licensed Surveyor produced a report dated 2nd June, 2023, which found that the maps do not indicate any existing stock route on the suit land and that while stock routes existed during colonial days for transporting cattle, none is shown on the registration sheets for the suit parcel. 38. DW3, the District Surveyor, produced a report dated 13th January, 2022, pursuant to a court order, and during cross examination, he stated that he had not produced evidence of the existence of any other stock route. Both surveys found minor variances between the registered acreage and the acreage on the ground. 39. The only documentary evidence touching point is a letter dated 17 th November, 2001 addressed to the Permanent Secretary, Agriculture, concerning relinquishment of a stock route said to be trust land. The letter does not establish a subsisting right; it indicates that any interest that may once have existed was surrendered years before this suit was filed in 2018. 40. There was no gazette notice, survey plan, or Part Development Plan reserving a stock route produced by either party, and no Defendant produced any instrument of title or allocation over any part of the suit land. The evidence of DW1 and DW2 as to historical use of the land for NAKURU ELC NO. 196 OF 2017 – JUDGMENT 11

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moving livestock, without any supporting instrument, establishes at most a historical practice, not a subsisting legal encumbrance capable of derogating from registered title. There is no lawful, identifiable stock route on Lembus/Kiptum/182 41. On the second issue as to whether any defendants trespassed on the suit land, and if so, whether the Plaintiff is entitled to the reliefs sought, it is on record that the 2nd Defendant, is the only one in physical occupation of the suit land, having constructed a permanent church structure on it.PW1’s evidence is that around 1997-1998 she permitted the Church to put a shade for prayer purposes, and never consented to a permanent structure. 42. It is important to understand what constitutes trespass in law. Section3(1) of the Trespass Act Chapter 294 of the Laws of Kenya provides that: -Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence. 43. Thus, trespass is an intrusion by a person into the land of another who is in possession and ownership - see Clerk & Lindsell on Tort (21st Edn) page 1345. Therefore, there must be entry into another’s land; such entry must be without permission of the owner of the land and or without reasonable excuse. No license, lease or allotment letter was produced and NAKURU ELC NO. 196 OF 2017 – JUDGMENT 12

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lawful allocation from the 1st Defendant. Occupation and construction amounted to trespass. 44. The 1st Defendant is not in occupation but the County Surveyor entered the suit land in 2017 together with some of the Defendants to attempt to excise and allocate a portion of it, without the Plaintiff’s consent and without completing any lawful allocation. A county government has no legal capacity to allocate road reserve or public land, that power resides with the National Land Commission; any purported allocation would be void. This entry was an unauthorized interference warranting restraining order. 45. The 3rd to 14th Defendants organized themselves by approaching the county to request allocation of land along the claimed stock route which request DW1 confirmed, was never granted. This did not amount to trespass since no entry, occupation or construction by the defendants is shown. 46. Black’s Law Dictionary defines encroachment as: “an unauthorized intrusion or invasion of another’s property; a physical intrusion such as a wall, fence, or structure that unlawfully extends onto or diminishes the area of another’s land; in the law of easements, an alteration of the dominant tenement that imposes an additional burden on the servient tenement is also described as an encroachment.” NAKURU ELC NO. 196 OF 2017 – JUDGMENT 13

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47. Encroachment in Kenyan law is an unauthorized physical intrusion or occupation of another’s land (a form of trespass); a registered proprietor is protected by the Land Registration Act and may seek removal, demolition, mesne profits and damages, while criminal and summary remedies exist under the Trespass Act. 48. It follows that the 2nd Defendant having put up permanent structures without the Plaintiff’s permission committed an act of trespass. The Plaintiff did not prove trespass against the 1st 3 rd to 14th Defendants as they were not in occupation, but their proven conduct in attempting or pursuing an unlawful allocation warrants permanent injunction to restrain future interference. 49. In the case of Duncan Ndegwa – Versus -Kenya Pipeline HCC No. 2577 of 1990 (Nairobi) where the court held: “The general principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land. The overriding principle is to put the claimant in the position he was prior to the infliction of the harm.” 50. Further in the case of Phillip Aluchio – Versus - Crispinus Ngayo [2014] eKLR, the court held that: “…The Plaintiff is entitled to general damages for trespass. The issue, which arises, is as to what is the measure of such damage. It NAKURU ELC NO. 196 OF 2017 – JUDGMENT 14

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has been held that the measure of damages for trespass is the difference in the value of Plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less…………” 51. Trespass is actionable per se and I find that an award of Kshs 500,000/ is reasonable compensation as general damages. 52. Consequently, I find that the Plaintiff has partially proved her case against the Defendants and therefore grant the following specific orders. a) A permanent injunction is hereby issued restraining the Defendants from entering upon, trespassing onto, encroaching, allocating, laying claim to or in any other manner interfering with or dealing with the Parcel of land known as Lembus/Kiptum/182 as or any portion thereof in any manner whatsoever. b) The 2nd Defendant to vacate the suit land known as Lembus/Kiptum/18, within 90 days failure an eviction order to issue. c) The 2nd Defendant to pay Kshs. 500,000/ as general damages for trespass to the Plaintiff. d) Costs of the suit to the Plaintiff. DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF SEPTEMBER 2026. M. A. ODENY NAKURU ELC NO. 196 OF 2017 – JUDGMENT 15

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JUDGE NAKURU ELC NO. 196 OF 2017 – JUDGMENT 16

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