1. Vide a Plaint dated 30 th September 2024 , the Plaintiffs herein Kipankara Ole Sailoji and Michael Leyioma Sailoji on behalf of the estate of their deceased father Kashu Ole Sailoji sued the Defendants herein John Lasiamon Keriasek, Pololet Keriasek, Ntekerei Keriasek, Nkoompa Keriasek, Lemaiduk Keriasek, Kilelu Keriasek, Njue Keriasek, Musanka Keriasek, Otiyioi Keriasek, Maitei Keriasek, Peresha Ole Sopia and Papiyo Ole Sopia for various orders.
2. In their claim, the Plaintiffs averred that that they are the sons of the late Kashu Ole Sailoji who died in Narok on 18 th January 2012. That their late father was, and is still the registered absolute proprietor of Land Parcel No. CISMARA/OLCHORO/38 (hereinafter the suit property) measuring approximately 125 hectares having been registered and issued with a land certificate on 17 th December 1980.
3. The Plaintiffs further averred that prior to the demise of their father, he enjoyed peaceful quiet , exclusive possession and occupation of the said parcel of land until the time of his death. Further, that even after the demise of their late father, his family members continued to occupy this parcel of land in peaceful, quiet and exclusive possession.
4. The Plaintiffs contended that on or about 25 th September 2024, the Defendants encroached and trespassed unto a portion of land forming part of their deceased father’s property, uprooted/destroyed the fence that was erected thereon, fell some trees and forcefully ploughed the said section without the Plaintiffs’ consent.
5. The Plaintiffs particularized the Defendant’s illegalities as follows:
a. Encroaching into the suit property without any consent from the estate of the late Kashu Ole Sailoji
b. Destroying and uprooting a fence erected on the suit property.
c. Felling trees without consent of the Estate of the Late Kashu Ole Sailoji.
d. Ploughing part of the suit property without the consent and permission of the Estate of the late Kashu Ole Sailoji.
6. The Plaintiff’s prayed for Judgment against the Defendants jointly and severally for the following reliefs:
a. A permanent injunction restraining the Defendants from trespassing, encroaching, occupying, ploughing, cultivating and/or dealing in any manner with the land parcel CISMARA/OLCHORO/38.
b. Eviction of the Defendants from the land parcel CISMARA/OLCHORO/38.
c. General damages
d. Exemplary damages
e. Costs of the suit
7. The suit is resisted by the Defendants, who in response to the Plaint, filed their Amended Statement of Defence and Counterclaim dated 20 th February, 2025, and denied every allegation in the Plaint and specifically that they encroached Unto land parcel No. CISMARA/OLCHORO/38 , and/or any portion thereof.
8. The Defendants contended that they are in occupation of their own parcel of land CISMARA/OLCHORO/1819, measuring approximately 23.10 ha or thereabouts, which land they have been carrying on farming activities.
9. The Defendants also averred that their parcel of land No. CISMARA/OLCHORO/1819, does not share a common boundary with CISMARA/OLCHORO/38, and that the two parcels of Land are separated by a public road, and there is no way they could have encroached unto the Plaintiffs’ portion of the land as alleged without interfering with the public road , which has been a common boundary over the years, and the said public road separates the two parcels of land.
10. The Defendants also averred that there has been a boundary dispute between the Plaintiff’s and the Defendants dating way back before the year 2018 where the Plaintiffs basically claimed misplaced access road , which they have now mutated into an encroachment into their portion of land.
11. Consequently, the Defendants urged the Court to dismiss all the prayers and reliefs sought by the Plaintiffs in their claim, and that the said suit be dismissed in its entirety with costs.
12. The court referred the matter to Alternative Justice System ( AJS) but the plaintiffs were not satisfied with the outcome, and consequently the matter proceeded for inter-parties hearing, after the close of pleadings and pre-trial conference.
Plaintiff’s case
13. PW1, Kipankara Ole Sailoji, the 1 st Plaintiff herein adopted his witness statement dated 17/3/2025, as part of his evidence in chief, and also produced his list of documents even dated as PEXHIBIT 1-16. It was his further testimony that he has seen the official search to land parcel No. CISMARA/OLCHORO/12 . However, he stated that his dispute concerns land parcel No. CISMRA/OLCHORO/38, with the neighboring land parcel.
14. Further, Pw1 testified that land parcel No. CISMARA/OLCHORO/1819, is a result of the subdivision of land parcel no. CISMARA/OLCHORO/12, and their parcel of land boarders land parcel No. CISMARA/OLCHORO/12, from the search. It was his further testimony that there is a road on the ground of 6:7 meters that passes through land parcel No. CISMARA/OLCHORO/12 , and that this road passes through some section and not all of them. Further, that the disputed parcel of land is about 7 acres, which is illegally occupied by the Defendants since 2024.
15. Upon cross examination by Ms Lepore for the Defendants, PW1 reiterated that the suit land is the estate of his deceased father- Kashu Ole Sailoji. He admitted that he was not present during demarcation of land parcels Nos. CISMARA/OLCHORO/12 and CISMARA/OLCHORO/38.
16. He also testified that he was in school at the time of the said demarcation, but his father showed him the beacons, and that the Defendants have encroached on the parcel of land owned by his late father. Further, that land parcel No . CISMARA/OLCHORO/38, is separated from land parcel No. CISMARA/OLCHORO/12, by the road. He reiterated that the Defendants have trespassed on their side of the land.
17. Further, that there is another road which passes where it is not supposed to pass, and that there is a common boundary dispute. Pw1 further testified that there is no other case at the lower court, and that the matter at the lower court was not concluded because the 1 st Defendant herein sued a Defendant who was a deceased person.
18. PW1 claimed that he closed a new road because he wanted people to use the reserved road, and that there was no dispute before closing the road. It was his further testimony that the road was reopened through efforts of the area Chief and the District Officer, and that it has remained open since it was re-opened by the above administrators.
19. Further, that he has seen the photographs produced as exhibits, which show the correct position on the ground, and he stated that it was his son who took the photographs, though he could not tell the exact date.
20. PW1, also testified that the photographs showed land parcel CISMARA/OLCHORO/38, and that it was taken the same date that his trees were cut down. He alleged that the fence in the photographs is the one that was cut and destroyed by the Defendants.
21. On re-examination, PW1 stated that he was in school at the time of demarcation, and that the beacons have been identified and the road that passes through his parcel of land is not the reserve road. That he was in the process of closing the trespass road and the reserve road was marked in 2016.
22. It was his further evidence that when the reserve road was to be opened, the Defendants moved to court to stop opening of the new road ,but the case was dismissed. He insisted that the dispute between himself and the Defendants is a road dispute, nor a boundary dispute. He reiterated that he has the minutes of 20/9/2024, wherein the area chief misadvised the Defendants, prompting them to encroach on the PW1’s side of the parcel.
23. PW2, Donald Leishan Sailoji, adopted his witness statement dated 17 th March 2025, and further testified that the Defendants encroached on their land parcel on 25/9/2024, while armed. It was his further testimony that he took photographs with his techno phone and run way.
24. Further, that he was on the ground on that day, and claimed he had a certificate of electronic evidence.
25. On cross examination by Ms Lepore , he insisted that he was on the ground on 25/9/2024, and he reported the encroachment by the Defendants to the chief, but not the police. Further, that the Defendants encroached on 6 acres of their side, and that the photographs were taken at around noon when the Defendants left and the fence that appears is on the side of the road.
26. PW3 Stanley Koonyo , adopted his witness statement, dated 17 th May, 2025 as his evidence in chief and also testified that he is the former chief of Siyapei location , a position he served since 1996 to 2020. He further testified that he knows the family of Kashu Ole Sailoji, as they come from his location .
27. Further, that there was a dispute over an access road in the year 2015, and not a boundary dispute . He insisted that the dispute in court is about an access road and not encroachment.
28. On cross examination, he reiterated that he served as the area chief from 1996 to 2020, and that he knew land parcels Nos. CISMARA/OLCHORO/38 and CISMARA/OLCHORO/1819, but did not know their acreages. Further, that when the road was allegedly closed, he reported to the District Officer who went to the scene. It was his contention that the road was a public road, and there is no alternative road.
29. That they requested the family of Sailoji to allow access till the dispute is resolved and that when they went back to the ground with the respective families, the same was opened. Further, an access road was marked but has not been opened because of the case in court.
30. He testified that the surveyor has marked the land and that the road separates the two blocks of land, the affected parties are many and that the access road was the point of reference.
Defendants Case
31. DW1 John Lesiamon Keriasek, testified that he comes from Sonkoro location within the great Olchorro Adjudication Section . It was his testimony that land parcel No. CISMARA/OLCHORO/1819, belonged to his late father, and that he has taken out Grant of letters of administration.
32. Dw1 adopted his witness statement dated 10 th April 2025 , as his evidence in chief, and further testified that there is a road that separates the Plaintiffs’ and the Defendants’ parcels of land.
33. Further, that he had a boundary dispute with the family of Sailoji that had to be resolved. That he went to court seeking for orders to compel the Plaintiffs to move out of their land which had been demarcated. That the community elders met and decided that the parcel of land that the Plaintiffs had encroached on is for the Defendants, but the Plaintiffs moved to court and sued them. He identified the court order which they were served with in 2019.
34. It was his further testimony that the surveyor placed the beacons in the proper location, but the Plaintiffs refused to follow this recommendation.
35. Upon cross exam by Ms Cheruto , DW1 testified that land parcel No . CISMARA/OLCHORO/1819, belonged to his late father, and that he had commenced the succession process.
36. He also testified that he did not know where land parcel No CISMARA/OLCHORO/38, came from, but it was not a subdivision of land parcel No. CISMARA/OLCHORO/12 . Further, that his father’s parcel of land came from land parcel No. CISMARA/OLCHORO/12, but he was not present during sub division.
37. That land parcel No. CISMARA/OLCHORO/12, has an easement road of about 6.67 meters as per the search produced by the Plaintiff. He also testified that there has always been a boundary dispute between his family and that of the Plaintiffs. Further, that a meeting was held on 10/2/2018, and he had minutes of the said meeting , but the family of the Plaintiffs did not attend.
38. That the agenda of the meeting was to allocate a road between land parcel Nos. CISMARA/OLCHORO/12 and NAROK/OLCHORO/18. Dw1 also testified that Sailoji had placed an illegal beacon encroaching on the Defendants’ land parcel before he died. Further, that this extended to the Defendant’s portion and that it was done without a surveyor and there was no fence.
39. Further, that the disputed land is 6 acres and that he has seen the minutes of 30/1/2019, which was held between the family of the Plaintiffs and the Defendants. He added that he was present and the meeting was commenced by the demarcation committee. That Pw1 was advised to leave their land alone before the elders: the surveyor was not present, but he went later and made a report dated 11/09/2024.
40. Dw1 confirmed having seen the minutes of 25/9/2024, which was called by the Assistant chief ,and which he attended, and the same was directed to be held by the District Commissioner . That the conclusion of the meeting was that the Defendants were to use and cultivate the encroached land.
41. That the area chief went to solve the issue of Pw1 closing the access road, but he could not remember whether his father was still alive, and that the access road is the boundary of the two parcels of land.
42. On re-examination by Ms Lepore , Dw1 testified that his father’s parcel was sub divided when he died, and that he had seen the search by the Plaintiffs, but the 2019 search is not an updated one.
43. He admitted that he had sued Pw1 but the case was dismissed because Pw1 had not taken out letters of administration over his late father’s estate. Later on Pw1 took out the letters of administration, and he filed this case. Accordingly, the Land Registrar and Surveyor visited the disputed parcels of land
44. DW2, Salaton Ole Sopia adopted his witness statement dated 10 th April 2025 as his evidence in chief. He further testified that he was in the adjudication committee of the great Olchoro Adjudication section, and that the committee allocated the disputed parcel of land to the Defendants.
45. Further, that the Plaintiffs’ and the Defendants’ fathers were allocated their respective portions of land during adjudication, and that this was done while respecting the existing access road. Further, that the road acted as a boundary and passed through all the parcels of land, and not PW1 side alone as alleged.
46. It was his testimony that they received a complain about the dispute between the Plaintiffs and the Defendants, and the same was resolved, but PW1 was not satisfied.
47. On cross examination by Ms Cheruto , he reiterated that the boundary was between the parcels of land in dispute, but the Surveyor in the presence of the elders fixed the boundary. He did not participate in the fixing of the boundary, and neither could he identify where the beacons were fixed because the Surveyors visited the ground later.
48. He insisted that the access road is the boundary, and that he was present in the meeting of 2019, but there was no surveyor. However, they resolved the dispute between the two families as elders.
49. Dw2 testified that there was another meeting on 10/2/2018, which was between land parcel Nos. CISMARA/OLCHORO/12, and CISMARA/OLCHORO/38, which was aimed at determining where the access road was to pass. That there was an alteration of a beacon fixed by Pw1’s father on Dw1’s land, and that it is this dispute that has extended to the children. Further, that Pw1’s family fixed the beacons on Dw1’s parcels of land.
50. On re-examination by Ms Lepore , he testified that the beacons were placed on Dw1’s land by Pw1’s family. Further, that all the parcels of land ended at the road, and that the access road was the boundary. He confirmed that land parcel No . CISMARA/OLCHORO/38, was allocated to Pw1’s father but he did not know the acreage.
51. DW3, Tonkei Ole Sopia adopted his witness statement dated 28 th April 2025. It was his further testimony that he was present when the Plaintiffs’ and the Defendants’ parcels of land were allocated, and that he participated in the allocation of the said parcel of land. Further, that the access road separated the parcels of land and Pw1’s land does not cross to the other side of the road, and that Pw1’s family invaded Dw1’s land.
52. On cross examination, Dw3 testified that he is sure of his testimony because he was the Chairperson of Olchoro Adjudication section, and that Pw1’s father was a chief. That Pw1 invaded Dw1’s land and the elders were aware of the dispute, and they solved it to the effect that Dw1 keeps the portion of land in dispute, but Surveyors were not around.
53. On re-examination, Dw3 testified that he does not know anything about beacons, and that the access road was the beacon
54. After the close of viva voce evidence, the court directed the parties to file and exchange their respective written submissions, which directives, were complied with.
55. The Plaintiffs filed their written submissions dated 21 st May 2026 through the Law Firm of Cheruto & Co Advocates ,wherein the following issues were raised for determination:
a. Whether the court has jurisdiction to handle the matter
b. Whether the Plaintiffs have proved ownership, occupation and possession of the suit property since 1980
c. Whether the Defendants unlawfully encroached and trespassed on to the suit land
d. Whether the 1 st to 10 th Defendants’ claims on the suit property are sustainable
e. Whether the Plaintiff is entitled to the reliefs sought
56. On jurisdiction , the Plaintiffs submitted that the issue at hand is not a boundary dispute, but instead one of opening a reserve access road as provided for by the Olchorro Adjudication map . Further, that the District Land Registrar Narok, visited the land occupied by the Defendants pursuant the Court Order in Narok CMELC No. 38 of 2019, as shown in their exhibit 5 in the report dated 9 th November 2021, wherein the subject in issue is opening an access road, and not a boundary dispute. The Plaintiffs further submitted that the road forms a boundary mark for so many parcels of land, except for the disputed parcels because it passes through land parcel No. 12.
57. Therefore, the Plaintiffs submitted that this Court has the jurisdiction to determine the issue at hand because it is not a boundary dispute.
58. On the issue of ownership, occupation and possession since 1980 the Plaintiffs submitted that land parcel No. CISMARA/OLCHORO/38, measuring approximately 125.0 hectares belongs to their late father Kashu Ole Sailoji ,who was registered on 17 th December 1980, and was issued with a certificate of title.
59. The Plaintiffs relied on the case of DOSHI VS CHEMUTUT & 7 OTHERS (Civil Appeal E020 of 2023) KECA 776 (KLR ) ,where the court held that a certificate of title is prima facie evidence of ownership under Section 23 of the Registration of Titles Act and Section 26 of the Land Registration Act in absence of proof of fraud or misrepresentation.
60. On the issue of trespass, the Plaintiffs relied on Sections 24 and 25 of the Land Registration Act, 2012, which grant exclusive proprietary rights of land to the registered owner at the exclusion of all others.
61. The Plaintiffs submitted that the Defendants encroached unto their parcel of land on 25 th September 2024, destroyed and uprooted the fence that was erected thereon, ploughed the said section and cut some trees. They relied on the photographs produced as exhibit 13 .
62. On whether the 1 st to 20 th Defendants claim on a portion of the suit property is sustainable, the Plaintiffs submitted that in various meetings held to determine where the access road should be positioned, there was no Surveyor or Land Registrar to confirm the positions taken.
63. The Plaintiffs also challenged the Surveyor’s report dated 11 th September 2024, on the basis that they were never summoned, and thus did not participate in the verification process. Further that the said verification process was done around 15 days after the suit filed by the 1 st Defendant being Narok CMELC 38 OF 2019, had been struck out and that the allegations that the visit was pursuant to a court order are thus false.
64. The Plaintiffs also relied on the minutes of 20 th September 2024, wherein the Area Chief and Ass. Chief gave the Defendants a go ahead to utilize the encroached area. It was the Plaintiffs’ further submissions that adjudication was done in the 1970s, and that the Defendants never filed any objection and cannot thus claim the encroached portion now.
65. Reliance was sought in the case of MAITHA & ANOTHER (Suing for and on Behalf of the WAMUNYUNDO CLAN) VS KARSAN RAMJI & SONS LIMITED & 6 OTHERS (Environment and Land Case 230 of 2018) [2025] KEELC 18442(KLR)(17 December 2025) (Judgment), wherein the court noted that after completion of adjudication process, the party dissatisfied had 60 days to file an objection if any, and in the case where such a party failed to file such an objection, then the process is found to have been held in accordance with the law.
66. Regarding whether the Plaintiffs are entitled to the reliefs sought, the Plaintiffs submitted that they have proven on a balance of probabilities that the whole land parcel Narok/Olchoro/38, measuring approximately 125.0 hectares belongs to the late Kashu Ole Sailoji, and now Estate of Kashu Ole Sailoji ,and should thus be awarded all the prayers sought in the plaint.
67. On their part, the 1 st to 10 th Defendants filed their written submissions dated 15 th June 2026 through the Law Firm of Lepore & Co Advocates, wherein the issues for determination were summarized as follows:
a. Whether the plaintiffs have proved exclusive occupation of parcel CISMARA/OLCHORO/38 beyond its lawful boundary
b. Whether the Defendants unlawfully encroached and trespassed onto parcel CISMARA/OLCHORO/38
c. Whether the dispute is one of trespass or boundary
d. Whether the access road exists and has always been the lawful boundary
e. Who should bear the costs of the suit
68. On exclusive occupation of land parcel No.CISMARA/OLCHORO/38 , the Defendants submitted that the Plaintiffs’ occupation has always been confined to their parcel of land, and the Defendants were confined to their own. It was their submission that the public access road stands as an eternal boundary between land parcels Nos. 38 and 1819, and that it is the lawful boundary recognized by elders, confined by the Land Registrar and respected by the community.
69. The Defendants relied on the case of DOSHI V CHEMUTAI 7 OTHERS [2025] KECA 776(KLR) where the court held that:
“ title is not a magic wand to extend boundaries. It is evidence of ownership of the parcel described, not of neighboring land separated by a public road.
70. The Defendants further submitted that the Plaintiffs title to land parcel No. 38, is valid but it cannot swallow land parcel No 1819. The Defendants also relied on the maxim of “ equity follows the law ” and that the law recognizes the road as the boundary.
71. The Defendants relied on the minutes of 30 th January 2019, where the elders and adjudication officials resolved that the road is the boundary, and that the disputed portion belongs to the Defendants. The Defendants further submitted that the Plaintiffs cannot go against this adjudication made through the collective wisdom of the very people who live through the adjudication process.
72. In response to the Plaintiffs’ claim for trespass, the Defendants submitted that it is impossible to trespass upon a land that they do not touch, and especially when there is a road separating them. Further, that the Plaintiffs’ reliance on adjudication beacons is equally misplaced.
73. The Defendants submitted that Section 16 of the Land Adjudication Act, Cap 284 provides for survey officers to prepare demarcation maps and prepare beacons. Section 60 provides a 60 day window for objections , and that neither the Defendants nor their father objected because the road was clear and cannot do so now.
74. On the issue of whether the Defendants unlawfully encroached and trespassed onto land parcel No. CISMARA/OLCHORO/38 , the Defendants denied all the allegations raised by the Plaintiffs that on 20 th September 2024, the Defendants uprooted fences, cut trees, and ploughed Land parcel CISMARA/OLCHORO/38 .
75. The Defendants maintained that their occupation has always been limited to land parcel no. CISMARA/OLCHORO/1819, separated by a public access road since adjudication. It was their further submissions that encroachment cannot occur without the Defendants crossing to the other side of the road.
76. The Defendants relied on Section 3(1) of the Trespass Act, Cap 294, which criminalizes unauthorized entry upon private land. The Defendants relied on the case of WAMBUGU VS NJUGUNA[1983] KLR 172, where the court emphasized that possession must be exclusive, continuous and hostile to the true owner for claims of adverse occupation or trespass to stand.
77. The Defendants submitted that in the present circumstances, the Plaintiffs’ possession has never extended beyond their lawful boundary, and that the road has always marked the limit. That the Defendants’ occupation on Land parcel No. CISMARA/OLCHORO/1819, cannot by any stretch be construed as trespass on land parcel CISMARA/OLCHORO/38 .
78. The Defendants also relied on the case of MBUI MUKANGU VS GERALD MUTWIRI ABURI [2004] eklr , where the Court of Appeal stressed that occupation must be actual and probable , not speculative and that the Plaintiffs’ allegations of ploughing and destroying the fence are unsupported by credible evidence and are contradicted.
79. On whether the present dispute is one of trespass or boundary dispute , the Defendants submitted that the present dispute is a boundary dispute , that has long been settled by adjudication, community resolutions and official reports.
80. The Defendants relied on the case of KARIUKI V KARIUKI [1983] KLR 225, where the court held that disputes arising from adjudication must be addressed within the statutory framework provided and that once boundaries are fixed, they cannot be casually reopened.
81. The Defendants also relied on the case of MUTHUITA VS MUTHUITA [1982] KLR 42 , where the court emphasized that boundary disputes must be resolved by the Land Registrar ; not by transforming them into trespass claims. It was the Defendants’ submissions that the Plaintiffs’ claim is meant to erase the road and annex their neighbor’s land.
82. On whether the access road exists and has always been the lawful boundary, the Defendants relied on the minutes held on 30 th January 2019, and submitted that the Elders, Adjudication officials, Police and the Land Registrar resolved that the road was the boundary, and the disputed portion belonged to the Defendants’ family. It was the Defendants’ further submissions that the District Land Registrars report dated 9 th November 2021, confirms this position. Lastly, the Defendants submitted that the Plaintiff’s case should be dismissed with costs.
83. Having carefully considered the pleadings, the oral and documentary evidence tendered by the parties, the rival written submissions and the applicable law, the Court is of the view that the following issues arise for determination:
i. Whether the Plaintiffs have proven their case to the legally required standard
ii. Who bears the costs of these proceedings?
Analysis and Determination
84. The Plaintiffs’ claim is that the Defendants have trespassed onto their deceased father’s parcel of land No CISMARA/OLCHORO/38, from their own land parcel No. CISMARA/OLCHORO/1819 . Further, that the existing access road is not the proper road, and that another road ought to be opened at another location.
85. The Defendants however denied these allegations and insisted that the existing road has existed for decades, has always been the recognized permanent boundary, and that the present dispute is predominantly a boundary dispute disguised as a trespass and road access dispute, and which should be handled by the Land Registrar under Sections 18 of the Land Registration Act .
86. The court has considered the summons dated 10 th January 2018 and 26 th February, 2019, and it is clear that it is aimed at summoning all the concerned parties for purposes of opening an access road in respect to land parcels No. CISMARA/OLCHORO/38 Vs 1819,1820,1821,1822 . The court has also seen the photographs produced by the Plaintiffs and it can clearly see a road next to the logs. The minutes dated 20/9/2024 , are also considered, and the contents therein noted.
87. Having gone through the minutes of 30.1.2019 ,in the Defendants list of documents titled “minutes of boundary dispute between Sailoji’s and Keriasek’s Family meeting held 30.1.2019 at the boundary in Mpirrishi village in Sonkoro Sub-location at 11:00 AM , the court notes in the said minutes, the Resolutions are clear that the disputed portion of land belongs to the Defendant’s family, and has been so for the past 40 years. Further, the road is the boundary and that Sailoji’s argument could not match the surveyor’s measurement.
88. Sections 107 and 109 of the Evidence Act place the legal burden upon the party who asserts the existence of a fact to prove the said facts alleged. In this regard, the burden of proving the allegations set forth in the Plaint rested squarely upon the Plaintiffs. The above provisions of land states:
“ Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in it existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
89. Whereas the Plaintiffs successfully demonst
[...truncated]
2. In their claim, the Plaintiffs averred that that they are the sons of the late Kashu Ole Sailoji who died in Narok on 18 th January 2012. That their late father was, and is still the registered absolute proprietor of Land Parcel No. CISMARA/OLCHORO/38 (hereinafter the suit property) measuring approximately 125 hectares having been registered and issued with a land certificate on 17 th December 1980.
3. The Plaintiffs further averred that prior to the demise of their father, he enjoyed peaceful quiet , exclusive possession and occupation of the said parcel of land until the time of his death. Further, that even after the demise of their late father, his family members continued to occupy this parcel of land in peaceful, quiet and exclusive possession.
4. The Plaintiffs contended that on or about 25 th September 2024, the Defendants encroached and trespassed unto a portion of land forming part of their deceased father’s property, uprooted/destroyed the fence that was erected thereon, fell some trees and forcefully ploughed the said section without the Plaintiffs’ consent.
5. The Plaintiffs particularized the Defendant’s illegalities as follows:
a. Encroaching into the suit property without any consent from the estate of the late Kashu Ole Sailoji
b. Destroying and uprooting a fence erected on the suit property.
c. Felling trees without consent of the Estate of the Late Kashu Ole Sailoji.
d. Ploughing part of the suit property without the consent and permission of the Estate of the late Kashu Ole Sailoji.
6. The Plaintiff’s prayed for Judgment against the Defendants jointly and severally for the following reliefs:
a. A permanent injunction restraining the Defendants from trespassing, encroaching, occupying, ploughing, cultivating and/or dealing in any manner with the land parcel CISMARA/OLCHORO/38.
b. Eviction of the Defendants from the land parcel CISMARA/OLCHORO/38.
c. General damages
d. Exemplary damages
e. Costs of the suit
7. The suit is resisted by the Defendants, who in response to the Plaint, filed their Amended Statement of Defence and Counterclaim dated 20 th February, 2025, and denied every allegation in the Plaint and specifically that they encroached Unto land parcel No. CISMARA/OLCHORO/38 , and/or any portion thereof.
8. The Defendants contended that they are in occupation of their own parcel of land CISMARA/OLCHORO/1819, measuring approximately 23.10 ha or thereabouts, which land they have been carrying on farming activities.
9. The Defendants also averred that their parcel of land No. CISMARA/OLCHORO/1819, does not share a common boundary with CISMARA/OLCHORO/38, and that the two parcels of Land are separated by a public road, and there is no way they could have encroached unto the Plaintiffs’ portion of the land as alleged without interfering with the public road , which has been a common boundary over the years, and the said public road separates the two parcels of land.
10. The Defendants also averred that there has been a boundary dispute between the Plaintiff’s and the Defendants dating way back before the year 2018 where the Plaintiffs basically claimed misplaced access road , which they have now mutated into an encroachment into their portion of land.
11. Consequently, the Defendants urged the Court to dismiss all the prayers and reliefs sought by the Plaintiffs in their claim, and that the said suit be dismissed in its entirety with costs.
12. The court referred the matter to Alternative Justice System ( AJS) but the plaintiffs were not satisfied with the outcome, and consequently the matter proceeded for inter-parties hearing, after the close of pleadings and pre-trial conference.
Plaintiff’s case
13. PW1, Kipankara Ole Sailoji, the 1 st Plaintiff herein adopted his witness statement dated 17/3/2025, as part of his evidence in chief, and also produced his list of documents even dated as PEXHIBIT 1-16. It was his further testimony that he has seen the official search to land parcel No. CISMARA/OLCHORO/12 . However, he stated that his dispute concerns land parcel No. CISMRA/OLCHORO/38, with the neighboring land parcel.
14. Further, Pw1 testified that land parcel No. CISMARA/OLCHORO/1819, is a result of the subdivision of land parcel no. CISMARA/OLCHORO/12, and their parcel of land boarders land parcel No. CISMARA/OLCHORO/12, from the search. It was his further testimony that there is a road on the ground of 6:7 meters that passes through land parcel No. CISMARA/OLCHORO/12 , and that this road passes through some section and not all of them. Further, that the disputed parcel of land is about 7 acres, which is illegally occupied by the Defendants since 2024.
15. Upon cross examination by Ms Lepore for the Defendants, PW1 reiterated that the suit land is the estate of his deceased father- Kashu Ole Sailoji. He admitted that he was not present during demarcation of land parcels Nos. CISMARA/OLCHORO/12 and CISMARA/OLCHORO/38.
16. He also testified that he was in school at the time of the said demarcation, but his father showed him the beacons, and that the Defendants have encroached on the parcel of land owned by his late father. Further, that land parcel No . CISMARA/OLCHORO/38, is separated from land parcel No. CISMARA/OLCHORO/12, by the road. He reiterated that the Defendants have trespassed on their side of the land.
17. Further, that there is another road which passes where it is not supposed to pass, and that there is a common boundary dispute. Pw1 further testified that there is no other case at the lower court, and that the matter at the lower court was not concluded because the 1 st Defendant herein sued a Defendant who was a deceased person.
18. PW1 claimed that he closed a new road because he wanted people to use the reserved road, and that there was no dispute before closing the road. It was his further testimony that the road was reopened through efforts of the area Chief and the District Officer, and that it has remained open since it was re-opened by the above administrators.
19. Further, that he has seen the photographs produced as exhibits, which show the correct position on the ground, and he stated that it was his son who took the photographs, though he could not tell the exact date.
20. PW1, also testified that the photographs showed land parcel CISMARA/OLCHORO/38, and that it was taken the same date that his trees were cut down. He alleged that the fence in the photographs is the one that was cut and destroyed by the Defendants.
21. On re-examination, PW1 stated that he was in school at the time of demarcation, and that the beacons have been identified and the road that passes through his parcel of land is not the reserve road. That he was in the process of closing the trespass road and the reserve road was marked in 2016.
22. It was his further evidence that when the reserve road was to be opened, the Defendants moved to court to stop opening of the new road ,but the case was dismissed. He insisted that the dispute between himself and the Defendants is a road dispute, nor a boundary dispute. He reiterated that he has the minutes of 20/9/2024, wherein the area chief misadvised the Defendants, prompting them to encroach on the PW1’s side of the parcel.
23. PW2, Donald Leishan Sailoji, adopted his witness statement dated 17 th March 2025, and further testified that the Defendants encroached on their land parcel on 25/9/2024, while armed. It was his further testimony that he took photographs with his techno phone and run way.
24. Further, that he was on the ground on that day, and claimed he had a certificate of electronic evidence.
25. On cross examination by Ms Lepore , he insisted that he was on the ground on 25/9/2024, and he reported the encroachment by the Defendants to the chief, but not the police. Further, that the Defendants encroached on 6 acres of their side, and that the photographs were taken at around noon when the Defendants left and the fence that appears is on the side of the road.
26. PW3 Stanley Koonyo , adopted his witness statement, dated 17 th May, 2025 as his evidence in chief and also testified that he is the former chief of Siyapei location , a position he served since 1996 to 2020. He further testified that he knows the family of Kashu Ole Sailoji, as they come from his location .
27. Further, that there was a dispute over an access road in the year 2015, and not a boundary dispute . He insisted that the dispute in court is about an access road and not encroachment.
28. On cross examination, he reiterated that he served as the area chief from 1996 to 2020, and that he knew land parcels Nos. CISMARA/OLCHORO/38 and CISMARA/OLCHORO/1819, but did not know their acreages. Further, that when the road was allegedly closed, he reported to the District Officer who went to the scene. It was his contention that the road was a public road, and there is no alternative road.
29. That they requested the family of Sailoji to allow access till the dispute is resolved and that when they went back to the ground with the respective families, the same was opened. Further, an access road was marked but has not been opened because of the case in court.
30. He testified that the surveyor has marked the land and that the road separates the two blocks of land, the affected parties are many and that the access road was the point of reference.
Defendants Case
31. DW1 John Lesiamon Keriasek, testified that he comes from Sonkoro location within the great Olchorro Adjudication Section . It was his testimony that land parcel No. CISMARA/OLCHORO/1819, belonged to his late father, and that he has taken out Grant of letters of administration.
32. Dw1 adopted his witness statement dated 10 th April 2025 , as his evidence in chief, and further testified that there is a road that separates the Plaintiffs’ and the Defendants’ parcels of land.
33. Further, that he had a boundary dispute with the family of Sailoji that had to be resolved. That he went to court seeking for orders to compel the Plaintiffs to move out of their land which had been demarcated. That the community elders met and decided that the parcel of land that the Plaintiffs had encroached on is for the Defendants, but the Plaintiffs moved to court and sued them. He identified the court order which they were served with in 2019.
34. It was his further testimony that the surveyor placed the beacons in the proper location, but the Plaintiffs refused to follow this recommendation.
35. Upon cross exam by Ms Cheruto , DW1 testified that land parcel No . CISMARA/OLCHORO/1819, belonged to his late father, and that he had commenced the succession process.
36. He also testified that he did not know where land parcel No CISMARA/OLCHORO/38, came from, but it was not a subdivision of land parcel No. CISMARA/OLCHORO/12 . Further, that his father’s parcel of land came from land parcel No. CISMARA/OLCHORO/12, but he was not present during sub division.
37. That land parcel No. CISMARA/OLCHORO/12, has an easement road of about 6.67 meters as per the search produced by the Plaintiff. He also testified that there has always been a boundary dispute between his family and that of the Plaintiffs. Further, that a meeting was held on 10/2/2018, and he had minutes of the said meeting , but the family of the Plaintiffs did not attend.
38. That the agenda of the meeting was to allocate a road between land parcel Nos. CISMARA/OLCHORO/12 and NAROK/OLCHORO/18. Dw1 also testified that Sailoji had placed an illegal beacon encroaching on the Defendants’ land parcel before he died. Further, that this extended to the Defendant’s portion and that it was done without a surveyor and there was no fence.
39. Further, that the disputed land is 6 acres and that he has seen the minutes of 30/1/2019, which was held between the family of the Plaintiffs and the Defendants. He added that he was present and the meeting was commenced by the demarcation committee. That Pw1 was advised to leave their land alone before the elders: the surveyor was not present, but he went later and made a report dated 11/09/2024.
40. Dw1 confirmed having seen the minutes of 25/9/2024, which was called by the Assistant chief ,and which he attended, and the same was directed to be held by the District Commissioner . That the conclusion of the meeting was that the Defendants were to use and cultivate the encroached land.
41. That the area chief went to solve the issue of Pw1 closing the access road, but he could not remember whether his father was still alive, and that the access road is the boundary of the two parcels of land.
42. On re-examination by Ms Lepore , Dw1 testified that his father’s parcel was sub divided when he died, and that he had seen the search by the Plaintiffs, but the 2019 search is not an updated one.
43. He admitted that he had sued Pw1 but the case was dismissed because Pw1 had not taken out letters of administration over his late father’s estate. Later on Pw1 took out the letters of administration, and he filed this case. Accordingly, the Land Registrar and Surveyor visited the disputed parcels of land
44. DW2, Salaton Ole Sopia adopted his witness statement dated 10 th April 2025 as his evidence in chief. He further testified that he was in the adjudication committee of the great Olchoro Adjudication section, and that the committee allocated the disputed parcel of land to the Defendants.
45. Further, that the Plaintiffs’ and the Defendants’ fathers were allocated their respective portions of land during adjudication, and that this was done while respecting the existing access road. Further, that the road acted as a boundary and passed through all the parcels of land, and not PW1 side alone as alleged.
46. It was his testimony that they received a complain about the dispute between the Plaintiffs and the Defendants, and the same was resolved, but PW1 was not satisfied.
47. On cross examination by Ms Cheruto , he reiterated that the boundary was between the parcels of land in dispute, but the Surveyor in the presence of the elders fixed the boundary. He did not participate in the fixing of the boundary, and neither could he identify where the beacons were fixed because the Surveyors visited the ground later.
48. He insisted that the access road is the boundary, and that he was present in the meeting of 2019, but there was no surveyor. However, they resolved the dispute between the two families as elders.
49. Dw2 testified that there was another meeting on 10/2/2018, which was between land parcel Nos. CISMARA/OLCHORO/12, and CISMARA/OLCHORO/38, which was aimed at determining where the access road was to pass. That there was an alteration of a beacon fixed by Pw1’s father on Dw1’s land, and that it is this dispute that has extended to the children. Further, that Pw1’s family fixed the beacons on Dw1’s parcels of land.
50. On re-examination by Ms Lepore , he testified that the beacons were placed on Dw1’s land by Pw1’s family. Further, that all the parcels of land ended at the road, and that the access road was the boundary. He confirmed that land parcel No . CISMARA/OLCHORO/38, was allocated to Pw1’s father but he did not know the acreage.
51. DW3, Tonkei Ole Sopia adopted his witness statement dated 28 th April 2025. It was his further testimony that he was present when the Plaintiffs’ and the Defendants’ parcels of land were allocated, and that he participated in the allocation of the said parcel of land. Further, that the access road separated the parcels of land and Pw1’s land does not cross to the other side of the road, and that Pw1’s family invaded Dw1’s land.
52. On cross examination, Dw3 testified that he is sure of his testimony because he was the Chairperson of Olchoro Adjudication section, and that Pw1’s father was a chief. That Pw1 invaded Dw1’s land and the elders were aware of the dispute, and they solved it to the effect that Dw1 keeps the portion of land in dispute, but Surveyors were not around.
53. On re-examination, Dw3 testified that he does not know anything about beacons, and that the access road was the beacon
54. After the close of viva voce evidence, the court directed the parties to file and exchange their respective written submissions, which directives, were complied with.
55. The Plaintiffs filed their written submissions dated 21 st May 2026 through the Law Firm of Cheruto & Co Advocates ,wherein the following issues were raised for determination:
a. Whether the court has jurisdiction to handle the matter
b. Whether the Plaintiffs have proved ownership, occupation and possession of the suit property since 1980
c. Whether the Defendants unlawfully encroached and trespassed on to the suit land
d. Whether the 1 st to 10 th Defendants’ claims on the suit property are sustainable
e. Whether the Plaintiff is entitled to the reliefs sought
56. On jurisdiction , the Plaintiffs submitted that the issue at hand is not a boundary dispute, but instead one of opening a reserve access road as provided for by the Olchorro Adjudication map . Further, that the District Land Registrar Narok, visited the land occupied by the Defendants pursuant the Court Order in Narok CMELC No. 38 of 2019, as shown in their exhibit 5 in the report dated 9 th November 2021, wherein the subject in issue is opening an access road, and not a boundary dispute. The Plaintiffs further submitted that the road forms a boundary mark for so many parcels of land, except for the disputed parcels because it passes through land parcel No. 12.
57. Therefore, the Plaintiffs submitted that this Court has the jurisdiction to determine the issue at hand because it is not a boundary dispute.
58. On the issue of ownership, occupation and possession since 1980 the Plaintiffs submitted that land parcel No. CISMARA/OLCHORO/38, measuring approximately 125.0 hectares belongs to their late father Kashu Ole Sailoji ,who was registered on 17 th December 1980, and was issued with a certificate of title.
59. The Plaintiffs relied on the case of DOSHI VS CHEMUTUT & 7 OTHERS (Civil Appeal E020 of 2023) KECA 776 (KLR ) ,where the court held that a certificate of title is prima facie evidence of ownership under Section 23 of the Registration of Titles Act and Section 26 of the Land Registration Act in absence of proof of fraud or misrepresentation.
60. On the issue of trespass, the Plaintiffs relied on Sections 24 and 25 of the Land Registration Act, 2012, which grant exclusive proprietary rights of land to the registered owner at the exclusion of all others.
61. The Plaintiffs submitted that the Defendants encroached unto their parcel of land on 25 th September 2024, destroyed and uprooted the fence that was erected thereon, ploughed the said section and cut some trees. They relied on the photographs produced as exhibit 13 .
62. On whether the 1 st to 20 th Defendants claim on a portion of the suit property is sustainable, the Plaintiffs submitted that in various meetings held to determine where the access road should be positioned, there was no Surveyor or Land Registrar to confirm the positions taken.
63. The Plaintiffs also challenged the Surveyor’s report dated 11 th September 2024, on the basis that they were never summoned, and thus did not participate in the verification process. Further that the said verification process was done around 15 days after the suit filed by the 1 st Defendant being Narok CMELC 38 OF 2019, had been struck out and that the allegations that the visit was pursuant to a court order are thus false.
64. The Plaintiffs also relied on the minutes of 20 th September 2024, wherein the Area Chief and Ass. Chief gave the Defendants a go ahead to utilize the encroached area. It was the Plaintiffs’ further submissions that adjudication was done in the 1970s, and that the Defendants never filed any objection and cannot thus claim the encroached portion now.
65. Reliance was sought in the case of MAITHA & ANOTHER (Suing for and on Behalf of the WAMUNYUNDO CLAN) VS KARSAN RAMJI & SONS LIMITED & 6 OTHERS (Environment and Land Case 230 of 2018) [2025] KEELC 18442(KLR)(17 December 2025) (Judgment), wherein the court noted that after completion of adjudication process, the party dissatisfied had 60 days to file an objection if any, and in the case where such a party failed to file such an objection, then the process is found to have been held in accordance with the law.
66. Regarding whether the Plaintiffs are entitled to the reliefs sought, the Plaintiffs submitted that they have proven on a balance of probabilities that the whole land parcel Narok/Olchoro/38, measuring approximately 125.0 hectares belongs to the late Kashu Ole Sailoji, and now Estate of Kashu Ole Sailoji ,and should thus be awarded all the prayers sought in the plaint.
67. On their part, the 1 st to 10 th Defendants filed their written submissions dated 15 th June 2026 through the Law Firm of Lepore & Co Advocates, wherein the issues for determination were summarized as follows:
a. Whether the plaintiffs have proved exclusive occupation of parcel CISMARA/OLCHORO/38 beyond its lawful boundary
b. Whether the Defendants unlawfully encroached and trespassed onto parcel CISMARA/OLCHORO/38
c. Whether the dispute is one of trespass or boundary
d. Whether the access road exists and has always been the lawful boundary
e. Who should bear the costs of the suit
68. On exclusive occupation of land parcel No.CISMARA/OLCHORO/38 , the Defendants submitted that the Plaintiffs’ occupation has always been confined to their parcel of land, and the Defendants were confined to their own. It was their submission that the public access road stands as an eternal boundary between land parcels Nos. 38 and 1819, and that it is the lawful boundary recognized by elders, confined by the Land Registrar and respected by the community.
69. The Defendants relied on the case of DOSHI V CHEMUTAI 7 OTHERS [2025] KECA 776(KLR) where the court held that:
“ title is not a magic wand to extend boundaries. It is evidence of ownership of the parcel described, not of neighboring land separated by a public road.
70. The Defendants further submitted that the Plaintiffs title to land parcel No. 38, is valid but it cannot swallow land parcel No 1819. The Defendants also relied on the maxim of “ equity follows the law ” and that the law recognizes the road as the boundary.
71. The Defendants relied on the minutes of 30 th January 2019, where the elders and adjudication officials resolved that the road is the boundary, and that the disputed portion belongs to the Defendants. The Defendants further submitted that the Plaintiffs cannot go against this adjudication made through the collective wisdom of the very people who live through the adjudication process.
72. In response to the Plaintiffs’ claim for trespass, the Defendants submitted that it is impossible to trespass upon a land that they do not touch, and especially when there is a road separating them. Further, that the Plaintiffs’ reliance on adjudication beacons is equally misplaced.
73. The Defendants submitted that Section 16 of the Land Adjudication Act, Cap 284 provides for survey officers to prepare demarcation maps and prepare beacons. Section 60 provides a 60 day window for objections , and that neither the Defendants nor their father objected because the road was clear and cannot do so now.
74. On the issue of whether the Defendants unlawfully encroached and trespassed onto land parcel No. CISMARA/OLCHORO/38 , the Defendants denied all the allegations raised by the Plaintiffs that on 20 th September 2024, the Defendants uprooted fences, cut trees, and ploughed Land parcel CISMARA/OLCHORO/38 .
75. The Defendants maintained that their occupation has always been limited to land parcel no. CISMARA/OLCHORO/1819, separated by a public access road since adjudication. It was their further submissions that encroachment cannot occur without the Defendants crossing to the other side of the road.
76. The Defendants relied on Section 3(1) of the Trespass Act, Cap 294, which criminalizes unauthorized entry upon private land. The Defendants relied on the case of WAMBUGU VS NJUGUNA[1983] KLR 172, where the court emphasized that possession must be exclusive, continuous and hostile to the true owner for claims of adverse occupation or trespass to stand.
77. The Defendants submitted that in the present circumstances, the Plaintiffs’ possession has never extended beyond their lawful boundary, and that the road has always marked the limit. That the Defendants’ occupation on Land parcel No. CISMARA/OLCHORO/1819, cannot by any stretch be construed as trespass on land parcel CISMARA/OLCHORO/38 .
78. The Defendants also relied on the case of MBUI MUKANGU VS GERALD MUTWIRI ABURI [2004] eklr , where the Court of Appeal stressed that occupation must be actual and probable , not speculative and that the Plaintiffs’ allegations of ploughing and destroying the fence are unsupported by credible evidence and are contradicted.
79. On whether the present dispute is one of trespass or boundary dispute , the Defendants submitted that the present dispute is a boundary dispute , that has long been settled by adjudication, community resolutions and official reports.
80. The Defendants relied on the case of KARIUKI V KARIUKI [1983] KLR 225, where the court held that disputes arising from adjudication must be addressed within the statutory framework provided and that once boundaries are fixed, they cannot be casually reopened.
81. The Defendants also relied on the case of MUTHUITA VS MUTHUITA [1982] KLR 42 , where the court emphasized that boundary disputes must be resolved by the Land Registrar ; not by transforming them into trespass claims. It was the Defendants’ submissions that the Plaintiffs’ claim is meant to erase the road and annex their neighbor’s land.
82. On whether the access road exists and has always been the lawful boundary, the Defendants relied on the minutes held on 30 th January 2019, and submitted that the Elders, Adjudication officials, Police and the Land Registrar resolved that the road was the boundary, and the disputed portion belonged to the Defendants’ family. It was the Defendants’ further submissions that the District Land Registrars report dated 9 th November 2021, confirms this position. Lastly, the Defendants submitted that the Plaintiff’s case should be dismissed with costs.
83. Having carefully considered the pleadings, the oral and documentary evidence tendered by the parties, the rival written submissions and the applicable law, the Court is of the view that the following issues arise for determination:
i. Whether the Plaintiffs have proven their case to the legally required standard
ii. Who bears the costs of these proceedings?
Analysis and Determination
84. The Plaintiffs’ claim is that the Defendants have trespassed onto their deceased father’s parcel of land No CISMARA/OLCHORO/38, from their own land parcel No. CISMARA/OLCHORO/1819 . Further, that the existing access road is not the proper road, and that another road ought to be opened at another location.
85. The Defendants however denied these allegations and insisted that the existing road has existed for decades, has always been the recognized permanent boundary, and that the present dispute is predominantly a boundary dispute disguised as a trespass and road access dispute, and which should be handled by the Land Registrar under Sections 18 of the Land Registration Act .
86. The court has considered the summons dated 10 th January 2018 and 26 th February, 2019, and it is clear that it is aimed at summoning all the concerned parties for purposes of opening an access road in respect to land parcels No. CISMARA/OLCHORO/38 Vs 1819,1820,1821,1822 . The court has also seen the photographs produced by the Plaintiffs and it can clearly see a road next to the logs. The minutes dated 20/9/2024 , are also considered, and the contents therein noted.
87. Having gone through the minutes of 30.1.2019 ,in the Defendants list of documents titled “minutes of boundary dispute between Sailoji’s and Keriasek’s Family meeting held 30.1.2019 at the boundary in Mpirrishi village in Sonkoro Sub-location at 11:00 AM , the court notes in the said minutes, the Resolutions are clear that the disputed portion of land belongs to the Defendant’s family, and has been so for the past 40 years. Further, the road is the boundary and that Sailoji’s argument could not match the surveyor’s measurement.
88. Sections 107 and 109 of the Evidence Act place the legal burden upon the party who asserts the existence of a fact to prove the said facts alleged. In this regard, the burden of proving the allegations set forth in the Plaint rested squarely upon the Plaintiffs. The above provisions of land states:
“ Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in it existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
89. Whereas the Plaintiffs successfully demonst
[...truncated]