DAVID MAINA NGUGI AND ISAAC TOWETT VS NICHOLAS OMARI OMASA & 4 OTHERS)

Introduction
The Plaintiffs filed a Plaint dated 25th June, 2020 which was amended on 12th June, 2025 and sought the following orders:
a.    A declaration that the 1st Defendant has encroached on title No. Njoro/ Ngata/Block 1/6350 (Kiamunyi) the property of the 1st Plaintiff herein and the Defendant be evicted from the suit land.
b.    An order cancelling the title Nos. Njoro/Ngata Block 1/7943 and Njoro/Ngata Block 1/7944 (Kiamunyi).
c.    An order directing the 4th and 5th Defendants to amend and or rectify the records with respect to the initial tile no Njoro/Ngata Block 1/6353 (Kiamunyi) to reflect the true acreage.
d.    A permanent injunction to issue restraining the 1st Defendant from remaining and or further carrying on construction work, disposing, charging and or dealing with title No. Njoro/Ngata Block 1/6350 (Kiamunyi) in any manner whatsoever.
e.    Cost of this suit.

The 1st Defendant filed a counterclaim dated 11th March, 2021 and prayed for judgment against the 3rd Defendant for:
a.    The 3rd Defendant be condemned to pay the 1st Defendant a sum of Kshs 15,100,000/= being compensation of the market value of the parcel, developments and improvements on Title Numbers NJORO/NGATA BLOCK 1/7943 (KIAMUNYI) & NJORO/NGATA BLOCK 1/7944 (KIAMUNYI).
b.    An Order directing the 4th and 5th Defendants to rectify the Register to the Original Title No. NJORO/NGATA BLOCK 1/6353 to reflect the acreage as per the Green Card and confirm that the sizes depicted on Title Numbers NJORO/NGATA BLOCK 1/7943 (KIAMUNYI) & NJORO/NGATA BLOCK 1/7944 (KIAMUNYI) are correct and accurate.
c.    Costs of the Counterclaim.
Plaintiffs’ Case
David Maina Ngugi, the 1st plaintiff, (now deceased) a resident of Nakuru County stated that he was the registered owner of all that parcel of land known as Njoro / Ngata Block 1/273. He knew the 2nd Plaintiff because he sold the latter a piece of the said land. He also knew the 2nd Defendant because he sold to her husband the late John Mathai Baru a piece of the said land. (Kiamunyi). He was issued with a title deed for the said parcel of land measuring approximately, 2.223 hectares on 24th April, 2013. He intended to sub-divide his land and applied for a consent to sub-divide the land and the same was issued on 1Ith April, 2013. In May, 2013, he caused Njoro/Ngata Block 1/273 (Kiamunyi) to be subdivided into 21 small parcels of land including Njoro/Ngata Block 1/6350 and 6353.

The properties in dispute are Njoro / Ngata Block 1/6350 and 6353 (Kiamunyi), He states that title No. Njoro / Ngata Block 1/6350 (Kiamunyi) measures approximately 0.4844 hectares and 6353 measures approximately 0.12 hectares.
On 17th February, 2015 and 29th June, 2015, he sold two parcels of land known as Njoro / Ngata Block 1 / 6352 and 6353 (Kiamunyi) to one John Mathai Baru, who has since passed away, for a sum of Kshs. 1,400,000 and Kshs. 1,200,000 respectively. That upon the death of John Mathai Baru, his widow Jane Wanjiku Mathai, the 2nd Defendant herein offered for sale Njoro / Ngata Block 1 / 6353 (Kiamunyi) to the 2nd Plaintiff herein but she later rescinded the contract. The plot known as Njoro / Ngata Block 1 / 6353 (Kiamunyi) that he sold to John Mathai Baru measured 0.12 hectares and a title deed was issued showing the  correct acreage.
On 16th January, 2017, he sold 1/4 acre of Njoro / Ngata Block 1/6350 to the 2nd Plaintiff herein who paid in full and the 1st plaintiff has been in the process of completing subdivision and issuance of title deed to him and the title deed is still in his name. The 1st plaintiff states that he is not aware the circumstances under which the 1st Defendant acquired title No. Njoro  / Ngata Block 1/6353 (Kiamunyi) but from the green card, it appears that the 2nd Defendant transferred the parcel of land known Njoro/Ngata block 1/6353 (Kiamunyi) to the 3rd Defendant who thereafter transferred the same to the 1st Defendant. The 1st Defendant herein without notice to the 2nd Plaintiff and or himself as the registered owner of Njoro / Ngata Block 1/6350 which borders title No. Njoro / Ngata Block 1/6353 took a surveyor on the said property on 6th November, 2019 and illegally purported to subdivide Njoro / Ngata Block 1 / 6353 (Kiamunyi) into two plots.
The 1st Defendant later on caused two title deeds to issue to himself. The two titles issued to the 1st Defendant herein encroach on the 1st plaintiff’s property known as Njoro / Ngata Block 1 / 6350 (Kiamunyi) as the total acreage on the two titles are 0.1973 ha instead of O. 12 ha as per the original title deed.
The property known as Njoro/Ngata Block 6353 (Kiamunyi) measured 0.12 hectares and not 0.1973 hectares as alleged by the Defendants and the Defendants herein fraudulently and using corrupt means caused the title to the said property to be tampered with so as to encroach on the 2nd Plaintiff's parcel of land thus interfering with his proprietary rights.
He does not know under what circumstances the 4th and 5th Defendants amended and or altered their records to reflect that the parcel of land known as Njoro/Ngata block 1/6353 (Kiamunyi)  measured 0.1973 hectares instead of 0.12 hectares as he  had earlier subdivided. The 1st Defendant has now commenced illegal development on the two parcels of land which construction has encroached on his property. He is  aware that the 2nd Plaintiff herein in 2018 found his portion of Njoro / Ngata Block 1/6350 (Kiamunyi) had been fenced by unknown person and upon enquiries, discovered that it was the 3rd Defendant who had fenced and the parties discussed the issue and agreed to have surveyors establish the boundaries for the two parcels of land. He is also aware the storage structure that had been constructed by the 2nd Plaintiff upon purchasing the Suit land was destroyed by the agents constructing the building. The 2nd Plaintiff has been trying to engage the 3rd Defendant over the boundary dispute but the said efforts have not been successful and when the constructions were commenced, the 3rd Defendant knew there was a dispute. On 22nd May, 2020, he wrote a letter to the 1st Defendant through his advocates and informed him of his encroachment. The 1st Defendant denied the claim by a letter dated 29th May, 2020 but despite the said denial, it is true that the 1st Defendant has encroached on Njoro / Ngata Block 1/6350 and he should not be allowed to develop it illegally. The Defendants have not demonstrated how the property that initially measured 0.12 ha   increased to 0.1973 ha almost double size on the ground.

Upon cross-examination by Mr. Omoiti learned counsel for the 1st defendant, PW1 reiterated that he was the owner of Njoro/Ngata/Block 273 and he had been issued with a title. That he later subdivided the land into twenty-one portions. He contracted a surveyor who helped him subdivide the land. The surveyor did the mutation form that shows fourteen parcels\ which he signed. John Mathai Baru signed the transfer forms but he does not have them.  That if the transfer form had an error, it could not have been approved and registered. He was transferring parcel 6353 and there was no communication of an error. There is no entry of subdivision before 8th July, 2013 and the land was later transferred to Jane Wanjiku Mathai. The second subdivision happened in 2019 and this was six years after issuance of the first title. He stated that there was no subdivision between 2013 and 2019.
The green card was opened on 21st June, 2013 and on the same date, the mutation was registered. The mutation shows land parcel 6353 measured 0.12 Ha. Nicholas Omari Omasa was not the person who took the document to the land office. The card shows 0.1973 Ha. Nicholas Omari Omasa got his title on 18th December, 2018 and the custodian of documents is the Ministry of Lands. PW1 stated that it is the lands office that confirms the acreage and that if an illegal document is used by the ministry, one blames the ministry. He blames the person who sold the land to the 1st defendant.
Upon cross-examination by Mr. Onchuru learned counsel for the 2nd and 3rd defendants, PW1 stated that parcel number Njoro/Ngata/ block 1/273 does not exist and that he subdivided it into portions and out of the twenty-one portions only one is in his name. PW1 stated that he has disposed of twenty parcels.  The surveyor who did the subdivision of land parcel number Njoro/Ngata Block 1/273 was a private surveyor. He further states the total acreage in the subdivided portion tallies with the original title. The mutation was approved on 15th July, 2013 and the mutation for land parcel 6353 was presented on 15th July, 2015 and he does not know the survey procedures but relied on the government documents. He sold land parcel number Njoro/Ngata Block 1/6353 to John Mathai Baru and he passed the title deed to the latter. Mathai went to the land office and confirmed that the entry was correct. He sold to Mathai land parcels Njoro/Ngata Block 1/6353 and 6352. Land parcel Njoro/Ngata Block 1/ 6350 is developed with a big water tank. According to PW1, there was a perimeter fence between the two parcels of land. The perimeter wall was constructed in 2020 and the wall was built when the house was being put up. PW1 stated that he sold Isaac Towett the portion neighboring land parcel 6350.

Upon cross-examination by Mrs. Wanjeri  learned state counsel, PW1 stated that twenty-one parcels came out of land parcel number 273 and that he did not involve the government surveyor and the way he wanted to subdivided is not how it was subdivided. Land parcel 6353 was 0.12 Ha according to the green card. He saw it in the lands office and he sold to Mathai 0.12 Ha.
Upon re-examination by Mr. Waiganjo learned counsel for the plaintiff, PW1 testified that he has sued Nicholas Omari Omasa for encroachment on land parcel 6350. PW1 states that the building has been put up by Nicholas Omari and the building sits on land parcels 6353 and 6350. That the green card for land parcel 6353 does not show the actual size he transferred to Mathai and it refers to 0.1973 and yet he transferred 0.12 Ha. He sold a quarter of an acre to Mr. Isaac Towett whose land is next to his. The wall on parcel 6350 encroaches his land.
Isaac Kipkemboi Towett, the 2nd plaintiff, testified as PW2. He is a resident of Nakuru County. He knows the 1st plaintiff because he bought land from him and also knows the 2nd defendant because she has sold him land but she later rescinded the contract and refunded the monies he had paid her. The 1st Plaintiff was the registered owner of all that parcel of land known as Njoro / Ngata Block 1/273 (Kiamunyi). The land was measuring approximately, 2.223 hectares. He is aware that the 1st Plaintiff later on subdivided the said parcel of land into various  portions measuring different size. The properties in dispute are Njoro / Ngata Block 1/6350 and 6353 (Kiamunyi) and he is  the owner of a 1/4 acre of Njoro / Ngata Block 1/6350. He is aware that title No. Njoro /  Ngata Block 1/6350 (Kiamunyi) measures approximately 0.4844 hectares and 6353  measures approximately 0.12 hectares.
He is aware that the 1st Plaintiff sold two parcels of land known as Njoro / Ngata Block  1 / 6352 and 6353 (Kiamunyi) to one John Mathai Baru who has since passed away. After his death, his widow, the 2nd Defendant offered the parcel no. Njoro / Ngata Block 1/6353 for sale to the 2nd plaintiff for a consideration of Kshs. 800,000 but she later on rescinded the contract and refunded the monies he had paid her. At the time of purchasing the said property, parcel no. Njoro / Ngata Block 1/6353 was measuring 0.12 hectares. On 16th January, 2017, the 1st plaintiff sold to him a 1/4 acre of Njoro / Ngata Block 1/6350 and was paid in full and he has been in the process of completing subdivision and issuance of title deed to the 2nd plaintiff as the main title deed is still in his name.
He is not aware the circumstances under which the 1st Defendant acquired title No. Njoro / Ngata Block 1/6353 (Kiamunyi) but from the green card, it appears that the 2nd Defendant transferred the parcel of land Njoro/Ngata block 1/6353 (Kiamunyi) to the 3 rd Defendant who thereafter transferred the same to the 1st Defendant.
The 1st Defendant herein without notice to the plaintiffs as owners of different portions of Njoro /   Ngata Block 1/6350 which borders title No. Njoro / Ngata Block 1/6353 took a surveyor on the said property on 6th November, 2019 and illegally purported to subdivide Njoro / Ngata Block 1 / 6353 (Kiamunyi) into two plots and  caused two title deeds to issue to himself. The two titles issued to the 1st Defendant herein encroach on the plaintiffs  property known as Njoro / Ngata Block 1 / 6350 (Kiamunyi) as the total acreage on the two titles are 0.1973 ha instead of O. 12 ha as per the original title deed. The 1st Defendant has now commenced illegal development on the two parcels of land which construction has encroached on his property. He does not know under what circumstances the 4th and 5th Defendants amended and or altered their records to reflect that the parcel of land known as Njoro/Ngata block 1/6353 (Kiamunyi measures 0.1973 hectares instead of 0, 12 hectares as reflected in the green card.
The property known as Njoro/Ngata Block 6353 (Kiamunyi) measured 0.12 hectares and not the alleged 0.1973 hectares as alleged by the Defendants and the Defendants herein fraudulently and using corrupt means caused the title to the said property to be tampered with so as to encroach on his portion of land in Njoro / Ngata Block 1 / 6350 (Kiamunyi) thus interfering with his proprietary rights. The 2nd plaintiff states that sometimes in February, 2018 he went to the land and found that the 3rd defendant had fenced the adjacent land, Njoro / Ngata Block 1 / 6353 (Kiamunyi) and the fence had encroached on Njoro / Ngata Block 1 / 6350 (Kiamunyi).
He confronted the 3rd Defendant and informed him that he had fenced on part of his land and they agreed to engage surveyors to verify the beacons and the boundaries but that never happened. After the developments were commenced, he got in touch with the 3rdDefendant and raised his concerns over the boundary but the same were ignored and to some point the 3rd Defendant became very confrontational over the issue necessitating this suit. He informed the 1st Plaintiff of the Defendants disinterests in resolving the issue and on 22nd May, 2020, a letter was written to the 1st Defendant through their advocates and informed him of his encroachment, the 1st Defendant denied the claim by a letter dated 29th May, 2020 but despite the said denial, it is true that the 1st Defendant has encroached on Njoro / Ngata Block 1/6350 and he should not be allowed to develop it illegally.  According to the 2nd plaintiff, the Defendants have not demonstrated how the property that initially measured O. 12 ha increased to 0.1973 ha almost' double size on the ground and he believes the said acts of fraud were committed to take away his land without justifiable means.
Upon cross-examination by Mr. Omoiti, PW2 stated that he has an agreement which he can take to the bank and get money and that the bank can give money on a sale agreement. PW2 stated that a sale agreement is as good as a title and the land belongs to him. PW2 stated that he bought the land at Kshs700,000/= from the 1st plaintiff. Nicholas (the 1st defendant) did not sell the land to him. He does not know that David did not sell the land to Nicholas.  He went with a surveyor to land parcel 6350 and measured the quarter. PW2 stated that there is a wall made stone and wood constructed on his land between land parcels 6350 and 6353 that he demolished.

Upon cross-examination by Mr. Onchuru, PW2 stated that he does not have a claim against the 3rd defendants and there are no allegations of fraud against the 2nd and 3rd defendant and that when buying land parcel number 6350, he went to the site. The fence was made of both stone and wood and that the fence separated the two parcels. The water tank is on land parcel 6350. He demolished the wall in 2015 and 2016. They took the surveyor to the suit parcel and he paid the full purchase price. He took possession and fenced.
Upon cross-examination by Ms. Wanjeri, PW2 stated that he has purchased some parcels of land from Land Parcel 273. That he bought more than five parcels and he has title deeds for the five and that it is only land parcel 6350 that is in dispute and he went there with a surveyor. He did not engage a government surveyor but the private surveyor came with a registered map. They ascertained the boundary. He bought part of land parcel 6350 and the land office processed the documents. He does not have a map and he did not do a search because he knew the history of the land.  They tried to do search but it was not successful. PW2 stated that he bought a quarter a quarter of land parcel 6350 at Ksh 700,000/= and he got. PW2 stated that they are in court to get justice.
Upon re-examination by Mr Ongeri learned counsel for the 2nd defendant, PW2 testified that he sued the registrar and surveyor because they are custodians of documents that were tampered with and that act made the Defendants take the whole of his quarter.  PW2 testified that the beneficiary is Nicholas Omari Omosa and he has been unable to get the title for one quarter. PW2 testified that their surveyor delayed and the parcel has been interfered with. PW2 stated that the 1st Defendant is in occupation and he has sued Jane Wanjiku Mathai because the green card in issue is for Land parcel 6353 and it reads her name.
1st Defendant’s Case
The 1st defendant Nicholas Omari Omosa states that he visited Kenya on or about August 2018 to September, 2018 where he met the 3rd Defendant and his wife who advised him to buy a parcel of land and do some development.
He considered that as a noble cause and asked the 3rd Defendant to find him a piece of land for purchase. He   got several proposals from the 3rd Defendant of people willing to sell their parcels of land and he settled for the land in question which belonged to John Mathai Baru (Deceased).
The said John Mathai Baru was deceased but his widow, the 2nd Defendant herein was the administrator and registered owner of the piece of land known as NJORO/NGATA BLOCK 116353 (KIAMUNYI) which he agreed to purchase. The 3rd Defendant and his wife indicated that they worked at the Lands Office in Nakuru and did a search to ensure the legitimate owner of the suit premises was John Mathai Baru (Deceased).

On or about 16th September, 2018, he  sent the 3rd Defendant a copy of his passport, Kenyan National Identification Card and Kenya Revenue Authority PIN through text messaging so as to facilitate him to get a lawyer who would draft the sale agreement for the purchase of the land. He was informed by the 3rd Defendant to make a deposit at Nyareru and Associates Advocates so that they would draft the agreement of Sale which he did in two installments to Nyareru and Associates Advocates Advocated DTB Bank Account Number 0176924001. The Sale Agreement was then sent to him via Email by a Lawyer named David Nyareru. He is the owner of land parcels Number NJORO/NGATA BLOCK 117943 (KIAMUNYI) & NJORO/NGATA BLOCK 117944 (KIAMUNYI). The 1st Plaintiff/Applicant alleges that he has encroached on his parcels of land known as NJORO/NGATA BLOCK 117943 (KIAMUNYI) & NJORO/NGATA BLOCK 117944 (KIAMUNYI).  He states that upon the purchase of the suit premises previously known as NJORO/NGATA BLOCK 116353 (KIAMUNYI) he decided to subdivide the same to form NJORO/NGATA BLOCK 117943 (KIAMUNYI) & NJORO/NGATA BLOCK 1/7944(KIAMUNYI).
On the 20th May, 2020, the 1st Plaintiff visited the suit premises and ordered his workers to stop the ongoing construction alleging encroachment to his property. That through his counsel M/S Mbati, Rirui & Co. Advocates, he  caused a demand letter alleging the encroachment against the 15t Plaintiff's/Applicant's property and threatened an action in the event that the  developments and construction is not stopped. Due to persistent threats of eviction from the 1st Plaintiff, he instituted Nakuru CMC ELC SUIT NO, 09 Of 2020 through which he obtained an injunctive order against restraining the 1st Plaintiff from interfering with or otherwise dealing with the parcels of land in question and the developments of his properties on Njoro/Ngata Block 1/7943 (Kiamunyi) &   Njoro/Ngata Block 1/7944(Kiamunyi).
The completion of the ongoing development on his NJORO/NGATA BLOCK 1/7943 (KIAMUNYI) and NJORO/NGATA BLOCK 1/7944 (KIAMUNYI) have been stopped and delayed due to threats and actions of encroachment by the 1st Plaintiff and this suit causing him damages and loss. The said delay has been occasioned by the 3rd Defendant who is the author of the problems that he has been involved in through the pending court cases.  On or about, August 2018u September 2018, the 3rd Defendant recommended to him that the parcel namely Njoro/Ngata Block 1/6353 was available for sale based on which information he undertook to purchase it. The 3rd Defendant never disclosed that he was in any way the proprietor of the parcel namely Njoro/Ncata Block 1/6353 which was later subdivided to yield Njoro/Ngata Block 1/7943 (Kiamunyi) And Njoro/Ngata/ Block 1/7944 (Kiamunyi),
That at all material times relevant to this suit, the vendor known to him in respect of the parcel namely Njoro/Ngata Block 1/6353 was the 2nd Defendant as proprietor of the premises and who the widow of the late John Mathai Mbaru was. The 2nd and 3rd Defendants had knowledge of the boundary disputes on the suit premises but never disclosed the same to him prior to the signing of the sale agreement. The 1st defendant has erected a double storey residential building with complete sections, domestic servant quarter and ablution block both completed alongside other structural, aesthetic and drainage improvements whose destruction stand to cause substantial financial loss by the 1st Defendant. The Open Market Value of the developments and improvements on the two plots: NJORO/NGATA BLOCK 117943 (KIAMUNYI) and NJORO/NGATA BLOCK 117944 (KIAMUNYI) is valued at Rshs.9,000,000/= while the sale value of the plots is respectively, Ksh4,300,000/= and Ksh1,800,000/= which gives a total open Market Value of Ksh,15,100,000/=. He prays that this honorable court ought to order for the rectification of the register to cure the differential acreage on the copy of the Green Card and the Title deed in which case the original value on the Green Card ought to be applied as the correct acreage. The 3rd Defendant recklessly and/or negligently and knowingly failed to disclose information necessary to ascertain ownership status of the suit premises which information was in his knowledge prior to the transaction herein.
As a consequence of non-disclosure and negligence on the part of the 3rd Defendant, if the suit premises are demolished as a result of the orders sought by the Plaintiffs, he shall thereby suffer substantial loss and damage.
The cost of the two subdivided parcels of land herein is Njoro/Ngata Block 1/7943 (Kiamunyi) & Njoro/Ngata Block 1/7944(Kiamunyi) and the improvements including developments done on them is Kshs15,100,000/= which I claim against the 3rd Defendant. The 3rd Defendant is the author of the matters herein above pleaded and therefore the 1st defendant instituted this Counterclaim as security and protection of his interest that is subject to threat by the Plaintiffs.
Upon cross-examination by Mr. Waiganjo learned counsel for the 1st plaintiff, DW1 stated that he resides in the United States of America and he used George Morara , the 3rd defendant to look for land and purchase it.  DW1 stated that he looked for N/G/Block 1/6353 Kiamunyi and he did a search. DW1 stated that he does not have a copy of the search for Land Parcel 6353.  DW1 stated that he had a map for the area Registered Index Map (RIM) and he stated that he has produced the RIM. DW1 stated that he does not have the document and he does not have a copy of title in the names of George Morara who was his first cousin and he trusted him. DW1 further stated that there is no sale agreement between him and Morara and that he has no transfer between him and Morara and this was agricultural land.  He stated that he does not recall a consent of the Land Control Board (L.C.B) and George Morara is in court. He is claiming Ksh 25,000,000 from George Morara and he is not blaming him. He was in Kenya between November and December 2018 and also in November 2019.
He testified on cross examination that in 2019 he had the two titles and that he occasioned the mutation for the property and came to know later that he was the owner of the land.  He stated that George Morara did not disclose to him that he was not the owner of the land.  The sale agreement was presented to court and he came to know about Jane later.  They did not do a sale agreement and that they agreed orally. DW1 stated that he was informed that the property belonged to John Mathai Baru.    DW1 stated that he did see a transfer from Jane to George and he does not know how George Morara obtained title from Jane. DW1 stated that he does not have any document showing that the land was 0.1973 before 2018. 
Upon cross-examination by Mr. Onchuru learned counsel for the 3rd defendant, DW1 stated that he does not work at the Lands Registry.  He stated that he bought Land Parcel Number 6353 from George in 2018 and he did not see a title deed in the name of George.  He stated that the title he saw was in the name of Mathai.  The Land Registrar did the transfer in his name and he got a title deed. He was buying the parcel from George and did not have any transaction with Jane Wanjiku Mathai. 
Upon cross-examination by Ms. Wanjeri, DW1 stated that he purchased the suit property in 2018 and he does not remember the date or month. DW1 stated that they started negotiations in September and he paid the first instalment on 26th October, 2018. He stated that Mr. Morara did the due diligence and that when he did the search, Jane Wanjiku Mathai was the registered proprietor. He was informed that the land measured half an acre, 0.1973ha.
Upon re-examination, DW1 testified that he does not know when the plaintiff sold the land to Mr. John Mathai Baru and that he knew that the land belonged to the 2nd Defendant but at the time of paying the land was transferred then to the 3rd defendant.  That George had disclosed to him that the land belonged to John Mathai and he knew Mathai as the owner.  DW1 testified that when this case was filed, he came to know that the owner was Mr. George Obara.  DW1 prayed for judgment against the 4th and 5th defendants.  DW1 testified that there is no dispute of transfer from Jane to George and  that George does not dispute transfer of land to himself and he has maps. DW1 testified that he has a lot of trust in George and there was no need for a written agreement.  DW1 testified that the lawyers prepare transfers and he did the due diligence to get a clean title which he received.

Joseph Mureithi Mugendi testified as DW2. He testified that he is a licensed surveyor based in Nakuru. DW2 testified that he prepared a report dated 29th March, 2022 in respect of Njoro Ngata Block 1/7943 and 7944 (Kiamunyi). DW2 testified that the report was to check whether the parcels encroached on the neighbor’s land. DW2 testified that he visited the property. It was his testimony that he got the RIM from the survey office in Nakuru and was able to identify the two parcels of land. DW2 testified that he able to confirm the boundaries and both properties were fenced. DW2 referred to land parcels Njoro/Ngata Block 1/6382,16355,6354,6350 and 277. He stated that the beacons were intact and land parcel Njoro/Ngata Block 1/7943 is slightly smaller in reality but bigger on the map. DW2 testified that the discrepancy is negligible and he produced the report as DEX 18.
Upon cross-examination by Mr. Ongeri learned counsel for the 2nd defendant, DW 2 stated that he is a licensed surveyor and he has a practicing certificate which he gave it to his advocate. He stated that he used the RIM but has not attached the RIM. DW2 and did not go into the history of title.

Upon cross examination by Ms. Wangari, DW2 stated that his instructions were to confirm whether the two parcels encroached on the neighboring land. DW2 stated that he found the land already well fenced. DW2 stated that the subdivisions were of land parcel No. Njoro/Ngata Block 1/6353. DW2 stated that he did not confirm the initial acreage of land parcel Njoro/Ngata Block 1/6353.  He stated that in respect of parcel 6350 there was a dispute on the boundary. He stated that subdivisions are captured in the RIM and that land parcels 7943 and 7944 will give you 0.1792 Ha. DW2 stated that he does not know the acreage of land parcel 6353. DW2 stated that he has practiced for forty-five years and that he did not enter the other parcels of land to measure the acreage.
Upon re-examination, DW2 states that he does not know Nicholas Omari Omasa and that he talked to him on the phone. DW2 testified that he was told that the owner of Land Parcel Njoro/Ngata Block 1/6350 had complained of encroachment. DW2 testified that he did not have the title of land parcel 6353 and his instructions were different.
2nd Defendant’s Case
Jane Wanjiku Mathai, relied on her statement dated 29th September, 2023 which was adopted by the court as part of her evidence in chief. She is a farmer and the 2nd Defendant in this suit. She knows David Maina Ngugi and Isaac Towett.  David Maina Ngugi sold them the land. She borrowed Kshs 400,000/= from Isaac Towett and the land was the security for the loan. She gave Isaac Towett back the money and he returned the title to her. She later sold the land to George Morara Obara. DW3 prayed that the case be dismissed and also for costs.
Upon cross-examination by Mr. Ongeri, DW3 stated that her father bought a plot measuring 0.12 Ha. Upon cross-examination by Mr. Waiganjo, She knows David Maina Ngugi and Isaac Towett. She stated that she borrowed Kshs 400,000/= from Isaac Towett and she needed Ksh 800,000/= but she was given Ksh400,000.  Isaac Towett wrote it as a guarantee and they entered into a sale agreement.

DW3 stated that at that time, she had the title in her name and that she is the wife of John Mathai Baru who died in 2016. It was in February 2016 when she borrowed the money and at that time the land was still registered in the name of John Mathai Baru. She sold the land to George Obara in 2018. However, she does not have a copy of agreement. When she sold the land, she had a grant. DW3 stated that she has not produced a grant but confirmed the land was 0.12 Ha. She does not know how many plots her husband had. She confirmed that the signature in the agreement is hers. She does not understand the situation on the suit parcel after selling the land. She stated that she had one title in the name of her husband. DW3 stated that the title was in the name of John Mathai Baru. DW3 stated that she knows George Obara but she does not know Nicholas Omasa. John Mathai Baru died in February 2015. She has not produced the agreement with George Obara. She has never seen any agreement between Nicholas Omasa and George Obara.
Upon cross-examination by Mr. Omoiti, DW3 stated that she was shown the title deed in the name of John Mathai. She stated that she gave the title to George Obara.  She does not have a copy of the title but she sold the land to George Obara. DW3 stated that she does not know Nicholas Omasa and she does not know about any agreement between the George Obara and Nicholas Omasa.
Upon re-examination, by Mr. Onchuru, DW3 testified that she signed the agreement but she did not read the agreement. DW3 testified that she had not done succession when she gave out the title and when she took it, it was in the name of John Mathai Baru. DW3 testified that she does not know Nicholas Omari and she does not have a copy of the title.

3rd Defendant’s Case
George Morara Obara relied on undated witness statement filed on 6th October, 2023 and another statement dated 10th October, 2023 filed on 11th October, 2023. The court adopted both statements as part of his evidence in chief. DW4 produced a list of documents as 3DExhb 1 and testified as DW4 that he stays at Kiamunyi and works in Nairobi and at Kenya Urban Roads Authority (KURA) where he has been a senior accountant since 2011. He is the 3rd Defendant and barely knows the Plaintiffs as he met them in court for the first time. He knows the 1st Defendant very well.  He knows Jane because she sold them land in dispute. That he knows Jane as the vendor who sold the land which is Njoro/Ngata/Block 1/6353 (Kiamunyi). He entered into a sale transaction with Jane in September 2018. The title deed was in the name of Jane Wanjiku Mathai and the land is 0.1973ha. He testified that he does not have a copy of the title and Jane transferred the property to him and he was registered as the proprietor on 1st October, 2018.
He sold the land to the 1st Defendant on 18th December, 2018 and transferred it to him. He testified that the 1st Defendant obtained the title on 18th December, 2018.  There was no issue and the land was open but it had a perimeter wall made of stones separating it with the land bought from Jane Mathai. He testified that there is a stone wall on the boundary between parcel 6350 and 6353.  He testified that there was no dispute between the two neighbors up to the time he sold the property.
He did not encroach on the Plaintiff’s suit property.
Upon cross-examination by Mr. Ongeri, he stated that before he bought the land from Jane Mathai, he was presented with a title and it showed the area of the property to be 0.1973. He stated that the title produced by Jane was the same 0.1973 ha and he referred to the title deed. That he does not have a copy of his title. That he sold the land to the 1st Defendant but he does not have the sale agreement or the transfer instrument. He stated that the size based on the title is 0.1973 but he did not keep the supplementary documents.
He was shown the title deed at page 163 of the trial bundle and stated that the number appearing there is his number. DW4 stated that the document s showed the approximate area of land parcel 6353 is 0.12. He stated that the land belongs to John Mathai whom he has never met.
Upon cross-examination by Mr. Waiganjo, He states that he works at KURA and he has a Masters in Economics. He stated that he knows the implications of keeping records. That he was given a copy of the title deed for Njoro/Ngata/Block 1/6353 in the name of Jane Wanjiku Mathai and he did not have a copy of the same in court.  He stated the he conducted an official search but does not have the transfer document. DW4 stated that he does not have the certificate of official search. DW4 stated that Jane presented the documents to the Lands Office. He relies on government documents and that the land is 0.1973 ha.

He does not have a copy of the sale agreement and there was no sale agreement done between himself and the 1st Defendant. He does not have a copy of the transfer instrument.  He is not aware of any transfers and he does not remember either him or the 1st Defendant appearing before any advocate. 
He has seen a title for parcel 6353 showing the acreage as 0.1973 but he has not produced it. He saw it when he bought land from Jane Mathai. DW4 stated that he is aware that the 1st defendant is demanding Ksh 15,000,000/= from him and according to his statement the land measures 0.12ha. DW4 stated that he did not know that the land measured 0.12 ha.

Upon cross-examination by Mr. Omoiti, DW4 stated that the 1st Defendant is his cousin and that he proposed to sell the property in September 2018. That in September, 2018, the land was not registered in his name and the land was registered in the name of Jane Mathai. DW4 stated on cross –examination that he had visited the property and there was a stone wall that separated parcel 6350 and 6353 and there was a stone wall between the two parcels of land.
He stated that he was not informed of any boundary dispute. He stated that he conducted a search of the property and there was no encumbrance on the property.  DW4 informed the court that the property was transferred in October 2018 and he was issued with a title deed. DW4 stated that there are two green cards. DW4 further stated that the register in respect of parcel number 6353 was opened on 21st June, 2013 and the first title was issued to David Maina Ngugi who is the 1st Plaintiff. DW4 stated that parcel 6353 is a subdivision of parcel 273 and he is aware of the mutation of parcel 273.
DW4 stated that he erected a new structure by the stone wall and that is the same place that he erected a new one. DW4 stated that he transferred the property to the 1st Defendant on 18th December, 2018.
Upon further cross-examination by Mr. Omoiti, DW4 stated that the drawings plans for the parcel of land were his design and the 1st Defendant opted for his own design. DW4 referred to page 209 of the bundle and stated that on 3rd November, 2018, he had not transferred the property. He stated that there is another property in Kiambu. DW4 stated that the plots referred to on page 209 of the bundle are known to him and they are in Kiamunyi. That on 21st December, 2018, they had been transferred to the 1st Defendant. DW4 stated that he was receiving the money in trust to conclude the transaction and this relates to parcel number 6353. DW4 stated that at page 200 of the bundle has evidence of ksh 14,000/= for valuation.

He stated that the documentation by the Land Registrar were prepared by the Attorney General. DW4 stated that he does not work with the Ministry of Lands and he was not related to anyone at the Ministry of Lands. DW4 stated that he has a green card for parcel 6353 and it is typed and hand written. DW4 stated that he does not know who made the entries.
DW4 stated that the hand written green card shows the approximate area as 0.12 and it is typed and cancelled.
Upon re-examination by Mr. Onchuru, DW4 testified that the green card for parcel number Njoro/Ngata Block 1/6353 has entry number one as the Government of Kenya. He stated that it is cancelled and he did not do the cancellation. He testified that the same is typed and cancelled. DW4 testified that there is no signature and yet it is a certified copy. He testified that the same is from the land registry and he cannot tell the officer who signed it. DW4 testified that the initial area was 0.12 and it is typed. He testified that the same is cancelled and it is not counter-signed. He testified that the green card is a certified true copy and he is not the one who signed. DW4 testified that the green card for parcel 6353 was not made by him. The title originated from the Land Registrar Nakuru on 6th November, 2020. He testified that the name of the certifying officer does appear and the document was not certified by him. DW4 testified that the handwritten document does not have a date. He testified that it has a date stamp of 12th November, 2020.
4th and 5th Defendants Case
Emma Sitienei, a Land Registrar Nakuru testified as DW5 that she understands this case as a land dispute between the owners of land parcels No 6353 and No 6350.  The dispute is over the acreage and she has the parcel file. She had the original green cards for parcels Njoro/Ngata/ Block 1/6353 which was subdivided to give rise to parcels Njoro/Ngata/ Block 1/7943 and Njoro/Ngata/ Block 17944.
She received a letter from the Attorney General dated 30th July, 2020 seeking instructions. Her office wrote a letter dated 10th November, 2020 to the Attorney General which is her statement. The court adopted the letter dated 10th November, 2020 as part of her evidence in chief. She produced a list of documents dated 23rd November, 2020. She has a green card for parcel Njoro/Ngata/ Block 16353 and the acreage is 0.1973 which is typed. She produced it as 4thDExh 1. DW5 produced a further list of documents dated 12th October, 2023 which has several documents. She produced a green card for parcel Njoro/Ngata Block 1/273 as 4th DExh 2. DW5 stated that the mother title was subdivided to create parcels 6350 and 6353 amongst others. That parcel 6353 was subdivided to create parcels 7943 and 7944 and DW5 produced as 4th DExh 3. She further produced the green cards for parcels 7943 and 7944 and 4th DExh 4 and 4th DExh 5. She stated that the issue in court is a boundary dispute and it is in respect of Njoro/Ngata/Block 1/6353 and Njoro/Ngata/ Block 1/6350. She testified that there was an amendment of acreage from 0.12 to 0.1973 and the parcel was subdivided to create parcel Njoro/Ngata/ Block 1/7943 and Njoro/Ngata/ Block 1/ 7944. She testified that using the new acreage of 0.1973 there was encroachment into another person’s land and that is why they are in court.
According to DW5, the green card for parcel Njoro/Ngata/ Block 1/ 6353 /belongs to Nicholas Omari Omasa and he subdivided into two portions. The acreage for parcel Njoro/Ngata/ Block 1/7943 is indicated as 0.1380ha and it is in the name of Nicholas Omari Omasa. DW5 testified that he was issued with a title on 3rd December, 2019. That there is a restriction entered on 8th January, 2020. She testified that the title was issued in error.

The acreage for parcel No 7944, is 0.0593 ha and it is registered in the name of Nicholas Omari Omasa. He was issued with a title on 3rd December, 2019. DW5 testified that there is a restriction dated 8th January, 2020 and the title deed was issued in error. They prepared a joint report with the District Surveyor and she produced the report as 4th DExh 6. She testified that there was an issue with the acreage on the original number 6353.

Upon cross-examination by Mr. Ongeri, DW5 stated that in respect of the alteration of the acreage from 0.12 to 0.1973, she has not seen any report on the same. She stated that she cannot tell how the alteration was done.
Upon cross-examination by Mr. Waiganjo, DW5 stated that the original card of parcel 6353 indicated that the land measured 0.12 acres. She testified that the amendment shows 0.1973 acres. The amendment is hand written and it is not countersigned. The size increased and the subdivision was done on the increased size. They note an error and the error was on the acreage. DW5 stated that one card was typed and the other one is handwritten. DW5 was shown DExhb No 6 and stated that the acreage for parcel 1/6350 was 0.4844. DW5 stated that the mutation for parcel 273 shows the acreage as 2.233ha and for parcel 6350 was 0.4844 ha. DW5 stated that for parcel 6353, it was 0.12 ha. DW5 stated that parcel 6353 boarders 6350 and parcels 7943 have extended into parcel 6350.
Upon cross-examination by Mr. Omoiti, DW5 stated that she is a Land Registrar and an Advocate of the High Court of Kenya. She stated that she has nine years’ practice experience and three years as the Registrar. She stated that she has sufficient experience and she understands the court proceedings. She stated that there is a boundary between parcel 6353 and 6350 but the records do not show a boundary.  She agreed that she has not produced a cadastral map or a Registered Index Map. She stated that the Regional Surveyor has the cadastral map and agreed that parcel 6353 encroached into parcel 6350.
DW5 stated that section 18 of the Land Registration Act is clear to her and from the reading of the act, the cadastral map shows the boundary. She stated that parcel 6353 and 6350 are registered parcels of land. She stated that there was no complaint touching on the boundary and from the green card, there is no entry on determination of the boundary. She stated that parcel 6350 does not have an entry of any dispute over the parcel of land. DW5 stated that there is no boundary dispute in the file.
There is no decision by the Land Registrar determining the boundary between parcel 6353 and parcel 6350. They have not conducted a site visit.  She does not know whether there was a complaint brought to the Land Registrar. She has not seen any document filed by the Plaintiff and she is not aware that the boundaries were fixed.

The official search shows the owner and that Nicholas Omari was registered on 18th December, 2018 and the mutation has no date of registration. The title is clear and the amendment on the green card is not dated. She stated that one cannot tell whether the amendment was done before the mutation. She stated that the amendment was done before 3rd December, 2011.
She does not know who can tamper with land documents.  Entries can only be made by those in the office and not those outside the office. She cannot confirm who interfered with the green card and anybody could have interfered with the green card. She does not know who did it and she cannot confirm who made the changes as the transactions were done by her predecessor. In 2018, she was not a land registrar. 
Upon cross-examination by Mr. Onchuru, DW5 stated that parcel 273 was subdivided into twenty-one portions and the figures making out the twenty-one portions is 2.4187 ha. The green card shows the acreage as 2.223 ha. The mutation form and the green card do not tally and the figure in the mutation form is bigger than that in the green card. She stated that the difference is 0.1957ha.

The mutation form is the proper document that registers land. She has not seen the mutation form in the land registry but she has seen it in court. DW5 confirmed that the mutation form is the one used to register land parcel number 273. DW5 stated that there is a document of mutation with the District Surveyor and the documents found in a parcel file are as follows; transfer. Identification cards, consent, an application for consent and a mutation.  DW5 informed the court that she could not trace the parcel file. She stated that the green card is kept in a binder and not the parcel file. She stated that the green card is kept under lock and key and it is accessed by the Land Registration staff. She stated that a member of the public cannot access the room and the amendments in the green card are signed by the registrar.
The entries in the green card are made by the Registrar and when the Land Registrar is signing a green card, the mutation forms are presented as evidence. DW5 stated that parcel 6353 was opened on 21st June, 2013 and the title deed was not issued on the same day. She stated that the date of opening and registration of the instrument is the same. DW5 stated that the acreage was 0.12 which was cancelled and indicated as 0.1973ha. DW5 stated that she cannot tell whether the alteration was done before the title was issued.

Anna Nyoya Ethale a Land Surveyor at Nakuru Regional Office testified as DW6 and relied on a written statement done by her predecessor Mr. Munyasa. The court adopted the statement as part of her evidence in chief. She produced a list of documents dated 15th September, 2020 and a copy of the mutation form for Njoro/ Ngata 6353 which the court marked as 4th DExhb7. She produced a certificate of official search dated 4th November, 2019 which the court marked as 4 DExhb9.      She produced a letter of consent dated 16th October, 2019 which the court marked as 4 DExh 10.
Upon cross examination by Mr. Waiganjo, DW6 stated that she is a government surveyor based in Nakuru. She relied on the statement of Mr Munyasia but confirmed that the statement by Mr. Munyasia is not dated. She stated that it was done in the year 2020 when Mr. Munyasia was in Nakuru. DW6 stated that she has read the statement and confirmed that the original land parcel number 6353 was 0.1973ha and the acreage for parcel number 6350 was 0.4844ha. She has a copy of the mutation and the acreage in the mutation for land parcel 6353 was 0.12ha. There was an anomaly in the acreage for parcel 6353 and the surveyor who did the work misled the office. DW6 stated that as at November 2019, the registered proprietor for parcel 6353 was Nicholas Omari Omasa and he was the beneficiary of the mistake. DW6 stated that she has looked at the green cards for parcels 7943 and 7944 and according to the copy of the green cards, the land registrar placed a restriction. She does not know when the case was filed and the report says that there was an encroachment on parcel 6350. The report was filed to give the status quo and she cannot tell whether there was a cover up. DW6 stated that the restriction was placed on 8th January, 2020.
Upon cross-examination by Mr. Ongeri, DW6 stated that she is the District Surveyor and that the boundaries between parcels 6353 and 6350 are general boundaries. She stated that a property cannot increase from the original size. DW6 stated that the second surveyor who did the subdivision of parcel 6353 increased it’s size from 0.12 to 0.1973.
Upon cross-examination by Mr. Omoit, DW6 stated that prior to her appointment, she never practiced as a licensed surveyor. She stated that she is conversant with the provisions of the Land Registration Act and the Survey Act on boundary determination. DW6 stated that where there is a boundary dispute, the first point of call is the Land Registrar and she has not seen any complaint to the Land Registrar.  She stated that the Registered Index Map was prepared and verified by their office and the Registered Index Map is used in demarcation of boundaries. She stated that parcel 6353 encroaches on parcel 6350 by twenty meters. DW6 stated that the report dated 20th December, 2022 shows the encroachment. She stated that there was only one sketch drawn and there is no Registered Index Map filed. She stated that the measurement on the suit parcel is 31.0 meters and the Registered Index Map does not have measurement. She stated that the Registered Index Map is prepared by the licensed surveyor. DW6 stated that the sketches were compared with the mutation and the mutation was prepared by a licensed surveyor. DW6 stated that it was difficult for the office to determine the anomaly. She stated that the encroachment was realized when the case was filed and the only document they have is the mutation. She stated that the mutation for parcel 6355 is dated 15th November, 2019. She stated that according to the search of land parcel 6353 it was 0.01973ha. She stated that the licensed surveyor misled their office. She stated that the licensed surveyor was given the acreage by the Land Registrar and the land registrar issued a search showing the area as 0.01973ha. DW6 stated that the document by the District Surveyor has a greater measurement and the Registered Index Map does not have the measurement. She stated that it has to be sealed and the surveyor does the sealing. She stated that there was the original mutation and she has never surveyed parcel 6353.
Upon cross-examination by Mr. Onchuru, DW6 stated that the restriction was done pursuant to a recommendation by Mr. Munyasia.  She stated that Mr. Munyasia recorded a statement after the case had been filed and the statement should be dated. She stated that she cannot tell when it was to be dated and it is not dated. DW6 stated that the restriction was registered on 8th January, 2020 and the plaint was filed on 25th June, 2020. She stated that Mr. Munyasia recommended a restriction and the date of the mutation is on the 18th September, 2020. She stated that she does not know when the documents were filed and the restriction was registered on 8th January, 2020. She stated that property cannot increase in size and the property as per the mutation is 2.8377 ha and the difference is 0.5077 ha. She stated that the acreage was exaggerated.
DW6 stated that she has never worked with Mr. Munyasia in Nakuru but has done so in Mombasa. She stated that she knows his signature and she is not good at verifying signatures. She stated that the document does not have a date and the subdivision was done by the surveyor. She stated that the portions in 7943 and 7944 tally with the search. DW6 stated that the report indicates the presence of the District surveyor and the land registrar and they both visited the suit parcel. DW6 stated that she does not know whether other parties were informed of the site visit and there is no evidence of invitation by the Land Registrar. She stated that the parties were not invited and the report does not show the layout. Upon re-examination, DW6 testified that the report was not done in secret and it was court sanctioned.
1st Plaintiff’s Submissions
Counsel for the 1st Plaintiff filed submissions dated 1st April, 2026 and identified the following issues for determination:
a.    What was the original acreage of the parcel of land no 6353 as sold by the 1st Plaintiff to the 2nd Defendant?
b.    Whether the acreage of the parcel belonging to the 1st Defendant lawfully changed from 0.12 hectares to 0.19 hectares?
c.    Whether the Plaintiff is entitled to the reliefs sought in the Plaint?
d.    Who bears the costs of the suit?
On the first issue, counsel relied on Section 107 of the Evidence Act and submitted that the parcel of land No 6353 was originally measuring 0.12ha at the time it was subdivided and sold by the 1st Plaintiff to the 2nd Defendant.

On the second issue, counsel submitted that the 1st Defendant’s title purports to confer rights over 0.1973ha and is thus impeachable having been acquired without proper due diligence. Reliance was placed on the following cases: Republic vs Kisumu County Land Registrar & another [2024] KEELC 6577, Daniel Kiprugut Maiywa vs Rebecca Chepkurgat Maina [2019] eKLR and Dina Management Limited vs County Government of Mombasa & 5 others [2023] eKLR.
On the third issue, counsel submitted that the Plaintiff is entitled to the reliefs sought. Reliance was placed on Section 80 (1) of the Land Registration Act, 2012 and the case of James Mathenge Munyiri vs District Lands Registrar & 2 others [2018] eKLR. On the fourth issue, counsel relied on Section 27 of the Civil Procedure Act and asked the court to award costs to the Plaintiffs.
2ND PLAINTIFF’S SUBMISSIONS
Counsel for the 2nd Plaintiff filed submissions dated 6th February, 2026 and identified the following issues for determination:
a.    What is the correct size of title No Njoro/Ngata Block 1/6353?
b.    Whether the 1st Defendant has encroached on the Plaintiff’s property?
c.    Whether the Plaintiffs are entitled to the reliefs sought?
On the first issue, counsel submitted that based on the evidence in court, title Njoro/Ngata Block 1/6353 measures approximately 0.12 ha. Counsel submitted that the allegation that it measures 0.1973 ha by the 1st, 2nd and 3rd Defendants is not sustainable and is not supported by any evidence. Reliance was placed on Sections 25 (1) and 26 (1) of the Land Registration Act and the case of M’ Mugwika M’ Rugongo vs Settlement Fund Trustee & another [2022] eKLR.
On the second issue, counsel submitted that there is sufficient evidence to show that the parcel of land known as Njoro/Ngata Block 1/6353 has encroached on the parcel of land known as Njoro/Ngata Block 1/6350. On the third issue, counsel urged the court to enter judgment in favour of the Plaintiffs. Counsel submitted that the 1st Defendant’s counterclaim is not against the Plaintiffs. Counsel urged the court to award costs to the Plaintiffs.
1st Defendant’s Submissions
The 1st defendant submits that the court lacks jurisdiction to entertain this suit as the plaintiffs’ claim revolves on a boundary dispute being encroachment on their property.  The Plaintiffs pray for a declaration that the 1st Defendant has encroached on Njoro/Ngata Block 1/6350 and he should demolish the illegal structure erected on the said property.  Thus, the gravamen of the Plaintiffs’ claim, as expressly pleaded in the Plaint, is that the 1st Defendant unlawfully encroached upon land parcel Njoro/Ngata Block 1/6350. The primary relief sought is a declaration of encroachment and consequential orders, including demolition of alleged illegal structures.
The 4th and 5th Defendants’ joint report dated 20th December 2022 at paragraph 5 states that, “ground visit was done and findings were that parcel number 7943 & 7944 formally 6353 encroaches into parcel number 6350 by 0.077 ha (0.19 acres)…”  It is therefore evident that the dispute before this Honourable Court is fundamentally a boundary dispute.
The evidence on record further reinforces the position that this dispute is purely one of boundary determination. In particular, the Land Surveyor confirmed that the suit property and all adjoining parcels are clearly demarcated and readily identifiable on the ground by well-established general boundaries, which have neither been displaced nor interfered with. 80. In the premises, any allegation of encroachment can only arise, if at all, from a dispute as to the exact position of such boundaries. That being the case, the dispute falls squarely within the statutory mandate of the Land Registrar under Sections 18 (2) of the Land Registration Act, which require that boundary disputes be determined in the first instance by the Land Registrar before recourse to this Court.
Section 18 (2) of the Land Registration Act provides that; “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.”
In view of the clear provisions of Section 18 (2) of the Land Registration Act, this court must first satisfy itself that it has jurisdiction to determine the dispute herein before embarking on considering the merits of the instant suit. Jurisdiction is everything and before a court considers the merits of a dispute, it must first be satisfied that it has the jurisdiction to determine the dispute.
The 1st defendant refers to Azzuri Limited v Pink Properties Limited [2018] KECA 392 (KLR) the Court of Appeal addressing itself on Section 18 (2) held thus, “this means that under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution; while disputes pertaining to lands with fixed boundaries may be investigated and possibly resolved simply through a surveyor.”
The 1st defendant refers to the case of Nzau v Kemei & 2 others [2025] KEELC 526 (KLR) held itself thus; “where there is a boundary dispute regarding uncertain boundaries, just like in this case, such disputes ought to be heard and determined not by this court, but by the Land Registrar who takes evidence from the parties and makes a decision. As this dispute is a dispute regarding general boundaries, the same cannot be determined by a land surveyor or by this court. It can only be determined by the Land Registrar; whose decision is appealable before this court. Therefore, in its original jurisdiction, this Court lacks jurisdiction to determine the dispute herein as the same is a boundary dispute in regard to general boundaries.”
The 1st defendant submits that it is trite that, and as held by the Court in Sekento v Sayo; County Surveyor, Kajiado County & another (Interested Parties) [2025] KEELC 7341 (KLR), “Section 18(2) enjoins the court not to entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined by the Land Registrar.” The statutory framework vests primary jurisdiction for the determination of boundary disputes in the Land Registrar, who is mandated, upon receipt of a complaint, to ascertain and fix the boundaries, conduct a site visit, hear the parties, and render a formal determination. It is only upon such determination that a party may properly invoke the jurisdiction of this Court, typically by way of an appeal or judicial review.  In the present case, the 4th Defendant has expressly confirmed that no formal boundary complaint has ever been lodged, no determination has been made by the Land Registrar, and no proceedings under Sections 18 and 19 of the Land Registration Act have been initiated or concluded. The Plaintiffs have therefore approached this Court prematurely and in clear contravention of mandatory statutory provisions.
It is trite that where there is a clear procedure for redress of any particular grievance as prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed, and exhausted.
The Court in Karani v Kenya Private Sector Alliance [2025] KEHC 3788 (KLR) cited with approval the 5- judge bench decision in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi and 3 Others y Attorney General & 4 Others; Muslims for Human Rights & 2 others (Interested Parties) (2020) KLR and held that; “The above brings me to the doctrine of exhaustion, which is an administrative remedy that a party ought to seek redress from before proceeding to invoke the jurisdiction of the court as may be provided in legislation in various agencies and authorities. It is mandatory that all available avenues of dispute resolution ought to be pursued before court action.”
The Court of Appeal in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) emphasized that;
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews... The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
From the foregoing and in the absence of a prior determination by the Land Registrar, this Honourable Court is divested of jurisdiction to entertain the Plaintiffs’ claim. 92. The Supreme Court of Kenya in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR); “A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
The 1st defendant contends that the Plaintiffs’ failure to invoke and exhaust the said statutory mechanism renders the present proceedings premature, incompetent, and an abuse of the court process. In the absence of a prior determination by the Land Registrar, this Court is divested of jurisdiction to entertain the Plaintiffs’ claim.
The 1st defendant submits that the Plaintiffs have not proved that the suit property, that is Njoro/Ngata Block 1/6353, encroached onto the 1st Plaintiff’s land, specifically Njoro/Ngata Block 1/6350 and therefore have failed to discharge the burden of proof required to establish encroachment. The 1st Defendant’s title to the suit property has not been challenged in any way by the Plaintiffs on any grounds enumerated in Section 26 of the Land Registration Act. Thus, this issue does not arise for determination. The Plaintiffs did not produce any survey report, sketch analysis or a Registry Index Map (R.I.M.) contradicting the official records relied upon by the 1st Defendant. Notably, the 1st Plaintiff, despite alleging that the suit property was originally 0.12 hectares, failed to adduce any documentary evidence in support of that assertion. In contrast, the certified Green Card produced by the 1st Defendant and the original copy produced by the 4th Defendant confirms that the acreage of the suit property has consistently been 0.1973 hectares.
Both Plaintiffs admitted the existence of a permanent perimeter wall demarcating the boundary between parcels No. Njoro/Ngata Block 1/6350 and the suit property, and 14 further conceded that the said permanent perimeter wall has never been moved or interfered with. This admission is fatal to the claim of encroachment, as it affirms that the physical boundary on the ground has remained constant.
2ND AND 3RD DEFENDANT’S SUBMISSIONS
Counsel for the 2nd and 3rd Defendants filed submissions dated 15th December, 2025 and identified the following issues for determination:
a.    Whether the 2nd Plaintiff has a cause of action against the 2nd & 3rd Defendants for failure to obtain consent for subdivision by the 1st Plaintiff invalidates the 2nd Plaintiff’s claim?
b.    What is the size of parcel number Njoro Ngata 1/6353 (Kiamunyi) as at 21st June, 2023?
c.    Who should bear the costs of this claim?
On the first issue, counsel submitted the 2nd Plaintiff’s claim is based on the sale agreement dated 16th January 2017 which offends the provisions of Section 3 (3) of the Law of Contract. Counsel submitted that the agreement was not witnessed. Counsel submitted that no consent to transfer the land was obtained. Counsel further submitted that the 2nd Plaintiff cannot rely on an illegal contract hence has no capacity to sue. Counsel submitted that his claim against the 2nd and 3rd Defendant is void. Reliance was placed on the case of Hirani Ngaithe Githire vs Wanjiku Munge (1979) KLR 50.
On the second issue, counsel submitted that the acreage of the initial Njoro/Ngata Block 1/6353 (Kiamunyi) is as shown by the copy of the records. Counsel submitted that the Plaintiffs have not proved their case against the 2nd and 3rd Defendant and their case should be dismissed with costs. Counsel went on to submit that the counterclaim against the 3rd Defendant is misplaced and should be dismissed with costs to the 3rd Defendant. Counsel relied on Order 7 Rule 8 of the Civil Procedure Rules 2010 and the case of Sanjay Tiwari vs Yuga Kishore Prasad & Ors (2025).
On the third issue, counsel submitted that the case against the 2nd and 3rd Defendants should be dismissed with costs. Counsel also asked the court to award costs to the 1st Defendant. Reliance was placed on the case of Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others (2014) eKLR.
ISSUES FOR DETERMINATION
This court has considered the following issues ripe for determination
(a)    Whether this court has jurisdiction to entertain this dispute
(b)    If yes whether the 1st Defendant has encroached on the Plaintiff’s property?
(c)    Whether the 1st Defendant is entitled to the orders sought in his counterclaim?
Analysis and Determination
On whether the Court has the jurisdiction to entertain this dispute, it alleged that the 1st defendant has encroached on the plaintiffs’ property.  This court has considered the evidence on record and does find the salient facts of this case are that the 1st  plaintiff was the registered owner of the parcel of land known as Njoro/Ngata Block 1/273(Kiamunyi) He was issued with a title deed on the 24th April 2013. The land measured 2.223 hactares. He subdivided the land into 21 portions of various measurements in hectares. Amongst the properties are Njoro/Ngata Block 1/6350 and Njoro/Ngata Block 1/6353 whose boundary is in dispute herein.
The jurisdiction of this Court flows from Art 162(2) (b) of the Constitution which is read together with the provisions of section 13(2) of the ELC Act. The latter provides as follows;
“In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—
a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
b) relating to compulsory acquisition of land;
c) relating to land administration and management;
d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
e) any other dispute relating to environment and land
For avoidance of doubt S. 13 of the Environment and Land Act in my view does not oust the jurisdiction of the court to determine boundaries. However when it comes to general boundaries section 18(2) of the Land Registration Act provides in mandatory terms that the dispute should be submitted to the Land Registrar. When the Land Registrar testified in court and uporn cross examination by Mr Omoiti learned counsel for the 1st defendant, she stated that the boundaries of the disputed parcels of land are general boundaries that have not been fixed.
Under the Land Registration Act Cap 300 (now repealed) Section 21(4)  deprived this Court the power to entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in that section. Section 18(2), the Land Registration Act, 2012 (LRA), similarly prohibits this Court from entertaining any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in that section. It provides as follows:
“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”.
Under Section 19 of Land Registration Act, 2012 the duty to fix boundaries to registered land is vested in the Land Registrar. It provides as follows:
“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.
15. From the above provisions of the law, it is manifestly clear that the above section gives the mandate to the Land Registrar to resolve boundary disputes of land with general boundaries. Registry Index Map (RIM) only indicates approximate boundaries and the approximate situation on the ground. Even if this Court was to hear and determine this matter it will still require the input of the Land Registrar. The land registrar stated that the boundary in dispute is a general boundary as opposed to a fixed or determined .boundary  The framers of section 18(2) of the Land Registration Act placed this matter before the Land Registrar who has the technical Knowledge and resources of the District Surveyor to determine and ascertain the boundaries. It is trite law that where the law has given a legal obligation to a department of Government, it is important for the Court to let that department proceed to meet its legal obligations. In this case the office of the Land Registrar is mandated to deal with the general boundary dispute first before the same is escalated to the Court.
In Azzurri Ltd v Pink Properties Ltd cited by learned counsel for the 1st defendant, the court of appeal observe as follows:
“[21] On our part, looking at the impugned judgment, it is clear to us that the decision of the trial court was primarily based not only on the weight of the evidence, but on the failure by the appellant to follow the laid down grievance handling mechanism; namely, referral of the dispute to the Land Registrar as per section 18 of the Land Registration Act.  It is common ground that the suit land is in a general boundary area (as opposed to a fixed boundary area). Resolution of disputes in a general boundary area is provided for under section 18 (supra) which states:
(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 section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299). (Emphasis added)
[22] This means that under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution; while disputes pertaining to lands with fixed boundaries may be investigated and possibly resolved simply through a surveyor. It was in appreciation of this provision that the learned Judge went on to hold in part that:
“Having found an existing dirt road, which is a physical feature, and the Defendant’s wall in place, it was incumbent on the Plaintiff, to report any issue of encroachment by its neighbours to the Land Registrar so that he could fix the boundaries and ascertain if indeed there was encroachment.
Instead, the Plaintiff resorted to reporting the issue to the Assistant County Commissioner, Malindi who summoned the Defendant vide his letter dated 30th December, 2014.
When the efforts by the County Commissioner to resolve the dispute failed, the Plaintiff involved the District Surveyor who prepared a report, which is the basis of the current suit. The filing of the current suit before referring the dispute to the Land Registrar was contra-statute”.
[23] From this analysis of the law, it should be clear from the above that, we are in agreement with the learned Judge’s conclusion that the dispute ought to have been heard by the Land Registrar as stated in the statute. Jurisdiction is everything.  It has been said many times before, that, without it a court has no powers to make one more step, irrespective of the strength and nature of evidence in the parties’ possession”
The court of appeal also held in in the case of Kimani Wanyoike versus Electoral Commission Civil Appeal No. 213 of 1995 (UR) held that:-
‘Where there is a law prescribed by either the Constitution or an Act of Parliament governing a procedure for the redress of any particular grievance that procedure should be strictly followed’.
It is the view of this Court that the dispute is prematurely before the Court.  The Plaintiff should take the steps contemplated in Section 18(2) of the Land Registration Act, 2012 in resolving the dispute. Ultimately, the suit is premature and therefore the court shall not delve into the other issues. Each party to bear own costs.