'1. The Plaintiffs, Neel Ashwin Gudka and Akash K. Gudka sued the Defendant Osika Ole Roitei, vide their plaint dated 18th July 2022, seeking the following reliefs; -
(a) That the plaintiffs are the registered and/or lawful owners of L.R No. Transmara/Keriankani/772 measuring approximately 40.50 hectares or thereabouts.
(b) An order of eviction against the Defendant, his Agents, and/or servants from L.R No. Transmara/Keriankani/772.
(c) Permanent injunction restraining the Defendant either by himself, agents, servants and/or anyone claiming under the Defendant from entering upon, re-entering, trespassing onto, cultivating, building on, grazing on, fencing, interfering with and/or in any other manner dealing with the suit property that is Transmara/Keriankani/772 and/or any portion thereof.
(d) General damages for trespass.
(e) Interest on (iv) hereof at court rates.
(f) Costs of this suit be borne by the defendant.
(g) Such further and/or other relief as the Honourable court may deem fit and expedient to grant.
Plaintiff’s case and evidence
2. It is the plaintiff’s case that they are the Registered owners of Transmara/Keriankani/772 measuring about 40.50 Ha, having been registered on 26th of June 2014, and are entitled to exclusive and/or absolute rights in respect of the suit property to the exclusion of all and sundry, the Defendant not excepted; while the Defendant is the registered owner of Transmara/Keriankani/328, which properties share a common boundary, which is distinct and discernible, and that the Defendant by himself, agents and/or servants encroached onto a portion of the plaintiff’s suit property in 2018 without the express authority of the plaintiffs.
3. Pursuant to the Defendants action the plaintiffs lodged a complaint in the nature of a boundary dispute with the Land Registrar, Transmara East, West sub-counties, so as to fix and/or establish the boundaries of the two properties; which exercise the Land Registrar undertook on 18th December 2018 and prepared a report dated 30.04.2019, confirming encroached by the Defendant.
4. The Defendant despite this said report continues to encroach the plaintiff’s property to the detriment of the plaintiff who is deprived of the right to use, possess and derive benefits from the suit property, necessitating this suit to recover the said portion, by seeking declaration as to the plaintiffs being the Bonafide owners of Transmara/Keriankani/772 as well as General damages or trespass.
5. On the strength of the above the plaintiffs for judgment against the Defendant as set out at paragraph 1 of this judgment.
Plaintiff’s evidence
6. The plaintiffs called 3 witnesses to testify in support of their case.
7. PW1 Jacob Omega Oboi, testified pursuant to a power of Attorney which he produced as P.Exhibit 1.
8. It was his testimony that the suit property herein Transmara/Keriankani/772 measured 40.5 hectares, having been purchased from Stephen Ole Bata and his mother.
9. He produced a copy of the title as P.Exhibit 2. Beacons were fixed before issuance of title but after the said purchase. The suit property borders Transmara/Keriankani/328 and there was a demarcation of barbed wire between the two properties and also a live fence.
10. In 2018 when the plaintiffs commenced fencing, the defendant alleged that a portion of property being fenced was within his demarcated area. Due to the dispute a complaint was filed with Land Registrar who visited the scene and prepared a ground report. The witness produced an authority to plead as P.Exhibit 4 and search dated 17.12.2021 as P.Exhibit 6, copy of official search for 3/28 dated 08.06.2021 as P.Exhibit 7, and a demand letter dated 19.07.2017 as P.Exhibit 8; letter dated 17.03.2018 as P.Exhibit 9, copy of boundary dispute summons dated 07.07.2018 as P.Exhibit 10A, and copy of boundary dispute summons dated 23.08.2018 as P.Exhibit 10B, and copy of boundary dispute summons dated 06.12.2018 as P.Exhibit 10C.
11. P.W.1 had earlier marked for identification the ground report.
12. He was cross-examined, and indicated that he did not have an Agreement for sale, although the vendor was Stephen Ole Bata and his mother. The witness indicated that he was not aware that the said Stephen Ole Bata was listed as a Defence witness.
13. The witness indicated that the vendor did not turn up on the date of the site visit. The witness stated that the defendant had alleged encroachment by the plaintiffs on their land.
14. He stated further that he had thought that the Land Registrar’s ground report would resolve the dispute.
15. The witness in respect of the ground report indicated in further cross-examination that the Defendant had not indicated to him on his claim on the said portion.
16. In re-examination, the P.W.1 indicated that the Defendant was occupying a portion of the plaintiff’s property without the plaintiff’s consent.
17. The Deputy Land Registrar Kilgoris Mr. Job Mitto Kobado testified as PW2.
18. It was his testimony that he received a court order to visit two properties being Keriankani 772, and Kerinkan 328 so as to re-establish the acreage of Keriankani/772.
19. There were 3 visits to the site in which both plaintiffs and defendant were present. The Defendant indicated that he had purchased a portion measuring about 8.5 hectares within Keriankani/772.
20. That Keriankani/328 was not in dispute and was occupied by the Defendant; No documentary proof of the purchase was submitted by the Defendant although Mr. Stephen Ole Bata indicated that the Defendant had purchased from his late father. The registered acreage of Keriankani/772 was 40.5 Ha but on the ground, it is 36.34 Ha.
21. The acreage issued on the title tallied with sheet 3, however ground occupied is according to sheet 1.
22. The portion across the road is occupied by the family of Ole Bata; which the plaintiff had no claim over.
23. On sheet 2, shows a portion marked in Blue compromised in Keriankani/772 but claimed by the Defendant.
24. Boundaries marked in green encroach onto open properties which were already registered.
25. The contested portion was being utilized by the defendant who was cultivating, thereon.
26. The witness concluded by saying that the suit property belonged to the plaintiff but the Defendant was occupying the same. The witness produced the site visit report dated 13.10.2019 as P.W Exhibit 1 and PW2 Exhibit 2.
27. On cross-examination, the witness stated that the acreage contained in the title of Keriankani/772 is not in line with the ground acreage, the property is partly fenced.
28. The witness could not tell when the Plaintiff was registered. The witness stated that the Defendant was occupying 8.5 Ha within Keriankani/772. The witness stated that according to the family of Ole Bata, they had sold to both the plaintiff and the defendant. The disputed property was in Keriankani/772. Whether there is a variation between the acreage and ground occupation the same is resolved by what is contained in the records.
29. P.W.3, Maurice Otieno the Land Surveyor previously working in Kilgoris but now based in Nyamira testified.
30. He stated that he had visited the suit property and prepared a ground report of Keriankani/772, and Keriankani/328, and both parties were present. It was his finding that the Defendant was in occupation of a portion of Keriankani/772; and occupied about 8.5 Ha of Keriankani/772
Defence Case and Evidence.
31. The Defendant filed his statement of Defence dated 23rd of August 2022 and it was his defence while denying the particulars of the plaint and particularly of interference, dispossessing and/or depriving of Plaintiffs parcel of land that;
(1) That he had purchased additional properties other than Transmara Kerianki 328, which he purchased from the original allotee of Transmara Kerianki/10 he also had purchased parcels adjacent to Transmara/Kerianki/9.
(2) He had specifically purchased 15 acres on 13th day of July 2012 and 22 acres on 23rd of September 2013 from Stephen Partareto Ole Barta and Nakuiyiet Noretet Kuria.
(3) That he had fenced the entire property he occupied and had lived thereon for more than 25 years and the agreement for sale signed by Stephen Partareto Ole Baita and Nakuyiet Ndoretet Kuria was just a process of formalising the land sale.
(4) The Defendant took out a third party notice against Stephen Partareto Barta and Nakuyiet Noretet Kuria claiming liability against them and/or indemnity, in that the Plaintiff title results from subdivision of property known as Transmara/Keriankani/9 which the plaintiff purchased from the 3rd party and the same property was also sold to the Defendant, and thus claimed indemnity for any loss arising out of the Agreement dated 13th July 2013 and 23rd September 2013.
(5) The third party was served with the 3rd party notice but opted not to defend the same.
(6) A request for judgement against the 3rd parties was filed and interlocutory judgement against the 1st, 2nd and 3rd parties was entered on 28/5/2025, thereafter the matter proceed for defence hearing and as undefended against the1st and 2nd 3rd party.
32. DW1, the Defendant Mr. Osika Ole Rotteo testified. He adopted his witness statement as part of his evidence in chief.
33. The witness produced the Agreement for sale dated 13/07/2010 as Exhibit 1 and Agreement for sale dated 23/9/2013 as Exhibit 2. It was his further evidence that he bought the property from Ole Barta but he did not write an Agreement with him as the vendor was sickly and eventually passed on. He wrote the Agreement with his son and wife. The witness did not know the number of the suit property. He paid money and had no balance. He bought 27 acres, initially buying 15 acres thereafter 12 acres about 25 years ago, fenced the same, which fence was still in situ. The plaintiff’s property was next to his, his property is fenced and did not form part of the property belonging to Gudka.
34. On cross-examination, the witness indicated that there was a boundary that was settled by the land Registrar in 2019. The witness indicated that he was not aware of the contents of the Registrars report (P.exhibit 2). He reiterated that he had bought the suit property from Ole Barta; though at the time the title was in the name of the father who had died. He had not been shown the Grant in respect of Ole Barta. He stated that he had bought 15 acres at Kshs 700000/= though he had no acknowledgement. He bought 15 acres from parcel number 9. A surveyor did the subdivision but he did not have sketch map of the parcel he had bought, although he fenced the property he had bought.
35. In respect of D exhibit 1, the witness stated that he had bought 12 acres from the widow of Ole Barta in a parcel called number 9. He was not shown a grant in respect of Ole Barta, he paid Kshs 1,440,000/=.
36. on P.Exhibit 10 the Land Registrar’s report the witness did not agree with the same and stated that Gudka’s property was elsewhere. He stated that he had sued OLE Barta in court.
37. The witness stated that he lived on the suit property he had an Agreement with no title but had lived on the suit property for more than 25 years.
38. The Agreement had been prepared afterwards; after the passing on of Ole Barta, the witness emphasized that his property had been fenced while Gudka’s property was elsewhere. He had not sued the Land Registrar and the Surveyor in respect to title issued to Gudka’s.
39. On re-examination, the witness indicated that the vendor had received monies and there were other witnesses who witnessed both Agreements.
40. The witness stated that he lived on his land and the vendors had not contested the Agreements for sale. During survey, the witness said he had shown where he bought and the Gudka’s equally stated where they had bought though he was not aware of the contents of the survey report.
41. D.W.2 Mr. Mesopin Salaton Kakui testified and adopted his witness statement as part of his evidence in chief.
42. It was his further testimony that the Defendant had bought a property from Ole Barta while Ole Barta was sick and payment made through payment hospital before the death of Ole Barta.
43. No agreement had been written between Ole Barta and the Defendant, although Ole Barta; D.W.2 had witnessed two Agreements for sale, and purchased had paid all the monies to the family of Ole Barta. Osika was granted vacant possession but here was no boundary. The parcel bought by the Defendant was not on Gudka’s property, and there was no dispute between Osika and Gudka.
44. On cross-examination, D.W.2 stated that Osika did not owe the family of Ole Barta, on the Agreements D.Exhibit 1, Nakuyiet is a widow of Ole Barta. She had sold 22 acres, and Ole Barta was already deceased at time of the sale; no Grant had been issued at time of the sale. Osika had bought 22 acres initially thereafter 15 acres making it 37 acres, although he had not sold, on further cross-examination the witness had stated that the Defendant had been given a title. The witness stated that he did not agree with the Land Registrar’s report.
45. The 3rd party did not enter appearance, and interlocutory judgment was entered against them, consequently the 3rd parties case was closed.
46. The court summoned the Registrar of Births and Deaths Transmara East, West and South to produce the death certificate in relation of Mr. Ole Barta, when it becomes apparent that this evidence was necessary in determination of the matter.
47. Mr. Kanyela Karsa thus testified as a common witness, it was his testimony that, he had received summons to testify in respect of the death of Ole Barta Ole Kura, whose death was registered on 05.01.2012 a certificate of death was issued but the original record of death entry No. 0124700059/12 was produced.
48. In cross-examination the witness stated that Ole Barta Ole Shuru died on 05.01.2012 but his death was reported on 29.02.2012 and his death was made by Mr. Kiplagat Korir Robert R.K Korir a Registrar now based at Bomet.
49. The witness in further cross-examination indicated that he used a copy of certificate of death to trace the entry. The cause of death was indicated as prolonged illness.
50. Once the parties’ respective cases were closed, the plaintiff and defendant filed submissions.
Plaintiff’s submissions
51. The plaintiff framed and submitted on 4 issues for determination.
52. On issue number 1, as to whether the plaintiffs are the registered owner of the suit property, it is the plaintiff’s submission that they are registered owner of the suit property having exhibited before court a copy of a title and a certificate of official search as P.Exhibit 5, 6 and 7 and having bought from the one Stephen Partereto and Nakuyiet Noratete Kura and that their interests are protected and vide section 24 and 25 of the Land Registration Act. In support of this they cited the decision in the case of George Orango Orango Vs. George Liewa Jagalo and 3 Others.
53. They further submitted that the previous registered owners did have not challenged their title.
54. On issue number 2, as to whether the defendant is the owner of the disputed portion.
55. The plaintiffs submitted that the Agreements for sale produced by Defendant in respect of 27 acres out of L.R No. Transmara/Keriankani/9, the said agreements did not state the exact ground location bought by the Defendants, no sketch maps to show the exact portion that he was purchasing.
56. The plaintiffs submit that the Defendant in his evidence indicated that he had occupied for more than 20 years the Agreements produced were prepared in 2012 and 2013. If indeed he had lived for 20 years as alleged the plaintiffs submit that the Defendant would have sued for adverse position and/or pleaded Constructive Trust. The plaintiff submits that the Defendant did not discharge the burden of proof under section 107 and 108 of the Evidence Act.
57. The plaintiffs submit that the 3rd Notice issued herein in untenable, as the 3rd parties are not in occupation of the suit property but it is the Defendant who is sought to be evicted.
58. The plaintiff submit that no indemnity can’t attach to the Defendants since the 3rd parties are not in occupation and have no interest in the suit property.
59. The plaintiff submit for an award of General damages for trespass for a reasonable amount.
60. They submit that the court enters judgment in favour of them.
Defendant’s Submission
61. The Defendant submits that a Constructive Trust and on proprietary estoppel was established under section 28(b) of the Land Registration Act once the full purchase price was paid and he was put in possession. Reliance was placed on the decision in Willy Kimutai Kitilit Vss. Michael Kibet, as well as Maina and 87 Others Vs. Kagiri and Others.
62. The Defendant; submitted that the plaintiffs’ title having been obtained fraudulently lacked the protection of law he cited the decision of Munyu Maina Vs. Hiram Gathiha Maina (2013) eKLR.
63. The Defendant submits that the plaintiff did not discharge the burden of proof and failed to prove trespass, since his entry was sanctioned by an Agreement for sale.
64. On liability of the vendors. the Defendant submits that liability ought to lie with vendor who sold the suit property twice.
65. They rely on Agricultural Finance Corporation Vs. Lengetia Limited and Jack Mwangi (1985) KECHA 58.
66. The Defendant submits that the vendors have unjustly enriched themselves against the constitutional values of equity justice and good governance.
67. Before framing issues for determination, it is common ground between the plaintiff and the Defendant that;
(i) The plaintiff is the registered owner of Transmara/Kerianki/772 while defendant is owner of Transmara/Keriankani/398.
(ii) That both of them trace their properties from Oloishuro Ole Barta, and/or his descendants.
Issues for Determination
68. Having analysed the pleadings, evaluated the evidence, considered the rival submissions on the law generally the court frames the following as issues for determination.
1. (a) Whether or not the plaintiffs have proven their case,
(b) If not, should the Defendants defence be upheld.
2. What is the fate of the Defendants third party Notice.
3. What reliefs ought to issue.
4. Who bears the costs of the suit.
Analysis and Determination
69. It is the plaintiff’s case that the Defendant encroached his suit property, Transmara/Kerianki/772. In support of his ownership claim the plaintiff produced a copy of the title for the suit property as P.Exhibit 2.
70. As noted at paragraph 68(1) in this judgment, the issue of plaintiff’s ownership of Transmara/Kerianki/772 is one of the undisputed facts in this matter.
71. In support of his claim for encroachment, the plaintiff called two witnesses, PW2 and PW3, who were expert witnesses. Pw2, testified of a boundary dispute, that had been reported to him between parcels number Transmara/Kerianki/772 and Transmara/Kerianki/728 belonging to the Defendant. He visited the disputed parcels together with PW3 and wrote a report. The registered acreage of Kerianki/728 was 40.5 Ha but occupied about 36.54 Ha on the ground. The acreage on the title tallied with sheet 3, but ground occupation tallied with sheet 1.
72. The witness produced a site visit report dated 13.12.2023 and a ground report dated 30.04.2019 as PW2 exhibit 1 and 2. The said report observed that Transmara/Kerianki/328 had an approximate 4.02 Ha as the registered acreage but on the ground, it occupies 5.036 Ha.
73. The report indicated that the Defendant was occupying 8.5 Ha within the plaintiff’s property claiming he had purchases from the original owner.
74. In the surveyor report, map sheet shows that portion claimed by Orika Ole Roitei was in the plaintiff’s property. PW3 the surveyor confirmed that the Defendant was in occupation of a portion of Kerianki/772, and was occupying 8.5 Ha of the said parcel.
75. In accordance to the original map sheet and plan diagram as annexed in the surveyor’s report, it is clear that the Defendant is occupying a portion of the Plaintiff’s property. As confirmed in sheet 2 of the surveyor’s report.
76. PW2 and PW3 as the expert witnesses both confirmed that the Defendant had encroached on the Plaintiff’s parcel.
77. The Defendants property in Transmara Kerianki 328 as per the title is 4.02 Hectares but occupies 5.036 Hectares on the ground, and the Defendant is claiming a further 8.5 hectares within Transmara/Kerianki/772. Transmara/Kerianki/772 has a registered acreage of 40.50 but is occupying 36.34 hectares.
78. There is an encroachment by the Defendant of about 4.16 Hectares in Transmara/Kerianki/772 out of the 8.5 hectares that the Defendant is claiming in Kerianki/772.
79. In his defence the Defendant testified that he bought from the late Ole Barta.
80. He produced two Agreements for sale for a total of 37 acres, having bought initially 22 acres and a further 15 acres and was put in possession.
81. The Defence submits that by virtue of the said sale and being in possession a Constructive Trust and/or adverse possession operates in his favour.
82. The issue of Constructive Trust and/or adverse possession were not pleaded in the Defence by the Defendant. It is trite law that parties are bound by their pleadings and having not pleaded the same, the Defendant cannot introduce th said issues in submissions as was held in the case of IEBC Vs. Stephen Mule on the proposition that parties are bound by their pleadings; the court had this to say “It is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings or put in other way, which is at variance with the averments of the pleadings goes to t no issue and must be disregarded.” as well as I the case of Daniel Toroitich Arap Moi Vs. Mwangi Stephen Mureithi an Another(2014) eKLR where the court observed as follows: -
“....submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties, “marketing language”, each side endeavouring to convince that this case is the better one. Submissions we reiterate do not constitute at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented...”
83. It follows that the Defendants defence that his occupation was by virtue of adverse possession and/or Constructive Trust having not been pleaded and/or introduced by way of submissions does not hold water.
84. Whereas the defendant produced agreements for sale between himself and members of the Ole Barta family, the said Agreements did not give him rights to occupy the parcel belonging to the plaintiff as the plan diagram clearly shows the ground location of parcel 772, while the said Agreements were silent on the exact location that the Defendant purchased from the Ole Barta family.
85. From the foregoing, it is clear that the plaintiff has proven ownership of Transmara/Kerianki/772, and has proven that the Defendant has encroached on the said parcel, in accordance with the ground site visit report and survey report and the map sheets and plan diagram annexed thereto.
86. Thus, in answer to issue number 1(a) and (b), the court finds that the plaintiffs have proven their case on a balance of probabilities and the Defendant has not proven entitlement to the portion of the suit property that he is occupation in Transmara/Kerianki/772 and his defence therefore fails.
87. On the issue of the third party, Notice which was undefended and interlocutory judgment entered against the third party, the Defendant by failing to prove that he is entitled to the portion he occupies in Transmara/Kerianki/772 , having bought from the third parties, and his defence having not been upheld his claim in the third party Notice with respect to the portion of land in he occupies in parcel No. Kerianki/772, against the third party equally fails. The Defendant may have recourse against the 3rd party in any portion that he claims to have purchased as he may prove, but certainly not the portion in dispute herein that the Plaintiff has proven entitlement.
88. On what orders ought to issue, having proven their case on a balance of probabilities the plaintiffs are entitled to the prayers sought in the Plaint and accordingly judgment is entered as prayed for in the Plaint and as follows; -
89. Having proven trespass, general damages are awardable perse as held in Bhagwani Singh Kallsi Vs. National Housing Corporation and the court awards Kshs.450,000/= as reasonable general damages, in the circumstances.
The Disposition
90. Judgment be and is hereby entered for the Plaintiff against the Defendants as prayed for in the Plaint, together with general damages of Kshs.450,000/=.
91. The Plaintiffs shall issue the requisite Notice under section 152 of the Land Act before eviction of the Defendant.
92. The Land Surveyor and the Land Registrar to fix the boundaries in accordance to the survey report dated 23.11.2023 and as per the plan diagram and the registered acreage of the suit properties thereof.
93. The third party Notice is hereby dismissed.
94. Costs of the suit are awarded to the plaintiffs.
Dated at Kilgoris this 20th November, 2025.
In the presence of
CA – Emmanuel/Sylvia/Sandra
Mr. Shira for the Defendant
Mr. Langat for the Plaintiff
'
(a) That the plaintiffs are the registered and/or lawful owners of L.R No. Transmara/Keriankani/772 measuring approximately 40.50 hectares or thereabouts.
(b) An order of eviction against the Defendant, his Agents, and/or servants from L.R No. Transmara/Keriankani/772.
(c) Permanent injunction restraining the Defendant either by himself, agents, servants and/or anyone claiming under the Defendant from entering upon, re-entering, trespassing onto, cultivating, building on, grazing on, fencing, interfering with and/or in any other manner dealing with the suit property that is Transmara/Keriankani/772 and/or any portion thereof.
(d) General damages for trespass.
(e) Interest on (iv) hereof at court rates.
(f) Costs of this suit be borne by the defendant.
(g) Such further and/or other relief as the Honourable court may deem fit and expedient to grant.
Plaintiff’s case and evidence
2. It is the plaintiff’s case that they are the Registered owners of Transmara/Keriankani/772 measuring about 40.50 Ha, having been registered on 26th of June 2014, and are entitled to exclusive and/or absolute rights in respect of the suit property to the exclusion of all and sundry, the Defendant not excepted; while the Defendant is the registered owner of Transmara/Keriankani/328, which properties share a common boundary, which is distinct and discernible, and that the Defendant by himself, agents and/or servants encroached onto a portion of the plaintiff’s suit property in 2018 without the express authority of the plaintiffs.
3. Pursuant to the Defendants action the plaintiffs lodged a complaint in the nature of a boundary dispute with the Land Registrar, Transmara East, West sub-counties, so as to fix and/or establish the boundaries of the two properties; which exercise the Land Registrar undertook on 18th December 2018 and prepared a report dated 30.04.2019, confirming encroached by the Defendant.
4. The Defendant despite this said report continues to encroach the plaintiff’s property to the detriment of the plaintiff who is deprived of the right to use, possess and derive benefits from the suit property, necessitating this suit to recover the said portion, by seeking declaration as to the plaintiffs being the Bonafide owners of Transmara/Keriankani/772 as well as General damages or trespass.
5. On the strength of the above the plaintiffs for judgment against the Defendant as set out at paragraph 1 of this judgment.
Plaintiff’s evidence
6. The plaintiffs called 3 witnesses to testify in support of their case.
7. PW1 Jacob Omega Oboi, testified pursuant to a power of Attorney which he produced as P.Exhibit 1.
8. It was his testimony that the suit property herein Transmara/Keriankani/772 measured 40.5 hectares, having been purchased from Stephen Ole Bata and his mother.
9. He produced a copy of the title as P.Exhibit 2. Beacons were fixed before issuance of title but after the said purchase. The suit property borders Transmara/Keriankani/328 and there was a demarcation of barbed wire between the two properties and also a live fence.
10. In 2018 when the plaintiffs commenced fencing, the defendant alleged that a portion of property being fenced was within his demarcated area. Due to the dispute a complaint was filed with Land Registrar who visited the scene and prepared a ground report. The witness produced an authority to plead as P.Exhibit 4 and search dated 17.12.2021 as P.Exhibit 6, copy of official search for 3/28 dated 08.06.2021 as P.Exhibit 7, and a demand letter dated 19.07.2017 as P.Exhibit 8; letter dated 17.03.2018 as P.Exhibit 9, copy of boundary dispute summons dated 07.07.2018 as P.Exhibit 10A, and copy of boundary dispute summons dated 23.08.2018 as P.Exhibit 10B, and copy of boundary dispute summons dated 06.12.2018 as P.Exhibit 10C.
11. P.W.1 had earlier marked for identification the ground report.
12. He was cross-examined, and indicated that he did not have an Agreement for sale, although the vendor was Stephen Ole Bata and his mother. The witness indicated that he was not aware that the said Stephen Ole Bata was listed as a Defence witness.
13. The witness indicated that the vendor did not turn up on the date of the site visit. The witness stated that the defendant had alleged encroachment by the plaintiffs on their land.
14. He stated further that he had thought that the Land Registrar’s ground report would resolve the dispute.
15. The witness in respect of the ground report indicated in further cross-examination that the Defendant had not indicated to him on his claim on the said portion.
16. In re-examination, the P.W.1 indicated that the Defendant was occupying a portion of the plaintiff’s property without the plaintiff’s consent.
17. The Deputy Land Registrar Kilgoris Mr. Job Mitto Kobado testified as PW2.
18. It was his testimony that he received a court order to visit two properties being Keriankani 772, and Kerinkan 328 so as to re-establish the acreage of Keriankani/772.
19. There were 3 visits to the site in which both plaintiffs and defendant were present. The Defendant indicated that he had purchased a portion measuring about 8.5 hectares within Keriankani/772.
20. That Keriankani/328 was not in dispute and was occupied by the Defendant; No documentary proof of the purchase was submitted by the Defendant although Mr. Stephen Ole Bata indicated that the Defendant had purchased from his late father. The registered acreage of Keriankani/772 was 40.5 Ha but on the ground, it is 36.34 Ha.
21. The acreage issued on the title tallied with sheet 3, however ground occupied is according to sheet 1.
22. The portion across the road is occupied by the family of Ole Bata; which the plaintiff had no claim over.
23. On sheet 2, shows a portion marked in Blue compromised in Keriankani/772 but claimed by the Defendant.
24. Boundaries marked in green encroach onto open properties which were already registered.
25. The contested portion was being utilized by the defendant who was cultivating, thereon.
26. The witness concluded by saying that the suit property belonged to the plaintiff but the Defendant was occupying the same. The witness produced the site visit report dated 13.10.2019 as P.W Exhibit 1 and PW2 Exhibit 2.
27. On cross-examination, the witness stated that the acreage contained in the title of Keriankani/772 is not in line with the ground acreage, the property is partly fenced.
28. The witness could not tell when the Plaintiff was registered. The witness stated that the Defendant was occupying 8.5 Ha within Keriankani/772. The witness stated that according to the family of Ole Bata, they had sold to both the plaintiff and the defendant. The disputed property was in Keriankani/772. Whether there is a variation between the acreage and ground occupation the same is resolved by what is contained in the records.
29. P.W.3, Maurice Otieno the Land Surveyor previously working in Kilgoris but now based in Nyamira testified.
30. He stated that he had visited the suit property and prepared a ground report of Keriankani/772, and Keriankani/328, and both parties were present. It was his finding that the Defendant was in occupation of a portion of Keriankani/772; and occupied about 8.5 Ha of Keriankani/772
Defence Case and Evidence.
31. The Defendant filed his statement of Defence dated 23rd of August 2022 and it was his defence while denying the particulars of the plaint and particularly of interference, dispossessing and/or depriving of Plaintiffs parcel of land that;
(1) That he had purchased additional properties other than Transmara Kerianki 328, which he purchased from the original allotee of Transmara Kerianki/10 he also had purchased parcels adjacent to Transmara/Kerianki/9.
(2) He had specifically purchased 15 acres on 13th day of July 2012 and 22 acres on 23rd of September 2013 from Stephen Partareto Ole Barta and Nakuiyiet Noretet Kuria.
(3) That he had fenced the entire property he occupied and had lived thereon for more than 25 years and the agreement for sale signed by Stephen Partareto Ole Baita and Nakuyiet Ndoretet Kuria was just a process of formalising the land sale.
(4) The Defendant took out a third party notice against Stephen Partareto Barta and Nakuyiet Noretet Kuria claiming liability against them and/or indemnity, in that the Plaintiff title results from subdivision of property known as Transmara/Keriankani/9 which the plaintiff purchased from the 3rd party and the same property was also sold to the Defendant, and thus claimed indemnity for any loss arising out of the Agreement dated 13th July 2013 and 23rd September 2013.
(5) The third party was served with the 3rd party notice but opted not to defend the same.
(6) A request for judgement against the 3rd parties was filed and interlocutory judgement against the 1st, 2nd and 3rd parties was entered on 28/5/2025, thereafter the matter proceed for defence hearing and as undefended against the1st and 2nd 3rd party.
32. DW1, the Defendant Mr. Osika Ole Rotteo testified. He adopted his witness statement as part of his evidence in chief.
33. The witness produced the Agreement for sale dated 13/07/2010 as Exhibit 1 and Agreement for sale dated 23/9/2013 as Exhibit 2. It was his further evidence that he bought the property from Ole Barta but he did not write an Agreement with him as the vendor was sickly and eventually passed on. He wrote the Agreement with his son and wife. The witness did not know the number of the suit property. He paid money and had no balance. He bought 27 acres, initially buying 15 acres thereafter 12 acres about 25 years ago, fenced the same, which fence was still in situ. The plaintiff’s property was next to his, his property is fenced and did not form part of the property belonging to Gudka.
34. On cross-examination, the witness indicated that there was a boundary that was settled by the land Registrar in 2019. The witness indicated that he was not aware of the contents of the Registrars report (P.exhibit 2). He reiterated that he had bought the suit property from Ole Barta; though at the time the title was in the name of the father who had died. He had not been shown the Grant in respect of Ole Barta. He stated that he had bought 15 acres at Kshs 700000/= though he had no acknowledgement. He bought 15 acres from parcel number 9. A surveyor did the subdivision but he did not have sketch map of the parcel he had bought, although he fenced the property he had bought.
35. In respect of D exhibit 1, the witness stated that he had bought 12 acres from the widow of Ole Barta in a parcel called number 9. He was not shown a grant in respect of Ole Barta, he paid Kshs 1,440,000/=.
36. on P.Exhibit 10 the Land Registrar’s report the witness did not agree with the same and stated that Gudka’s property was elsewhere. He stated that he had sued OLE Barta in court.
37. The witness stated that he lived on the suit property he had an Agreement with no title but had lived on the suit property for more than 25 years.
38. The Agreement had been prepared afterwards; after the passing on of Ole Barta, the witness emphasized that his property had been fenced while Gudka’s property was elsewhere. He had not sued the Land Registrar and the Surveyor in respect to title issued to Gudka’s.
39. On re-examination, the witness indicated that the vendor had received monies and there were other witnesses who witnessed both Agreements.
40. The witness stated that he lived on his land and the vendors had not contested the Agreements for sale. During survey, the witness said he had shown where he bought and the Gudka’s equally stated where they had bought though he was not aware of the contents of the survey report.
41. D.W.2 Mr. Mesopin Salaton Kakui testified and adopted his witness statement as part of his evidence in chief.
42. It was his further testimony that the Defendant had bought a property from Ole Barta while Ole Barta was sick and payment made through payment hospital before the death of Ole Barta.
43. No agreement had been written between Ole Barta and the Defendant, although Ole Barta; D.W.2 had witnessed two Agreements for sale, and purchased had paid all the monies to the family of Ole Barta. Osika was granted vacant possession but here was no boundary. The parcel bought by the Defendant was not on Gudka’s property, and there was no dispute between Osika and Gudka.
44. On cross-examination, D.W.2 stated that Osika did not owe the family of Ole Barta, on the Agreements D.Exhibit 1, Nakuyiet is a widow of Ole Barta. She had sold 22 acres, and Ole Barta was already deceased at time of the sale; no Grant had been issued at time of the sale. Osika had bought 22 acres initially thereafter 15 acres making it 37 acres, although he had not sold, on further cross-examination the witness had stated that the Defendant had been given a title. The witness stated that he did not agree with the Land Registrar’s report.
45. The 3rd party did not enter appearance, and interlocutory judgment was entered against them, consequently the 3rd parties case was closed.
46. The court summoned the Registrar of Births and Deaths Transmara East, West and South to produce the death certificate in relation of Mr. Ole Barta, when it becomes apparent that this evidence was necessary in determination of the matter.
47. Mr. Kanyela Karsa thus testified as a common witness, it was his testimony that, he had received summons to testify in respect of the death of Ole Barta Ole Kura, whose death was registered on 05.01.2012 a certificate of death was issued but the original record of death entry No. 0124700059/12 was produced.
48. In cross-examination the witness stated that Ole Barta Ole Shuru died on 05.01.2012 but his death was reported on 29.02.2012 and his death was made by Mr. Kiplagat Korir Robert R.K Korir a Registrar now based at Bomet.
49. The witness in further cross-examination indicated that he used a copy of certificate of death to trace the entry. The cause of death was indicated as prolonged illness.
50. Once the parties’ respective cases were closed, the plaintiff and defendant filed submissions.
Plaintiff’s submissions
51. The plaintiff framed and submitted on 4 issues for determination.
52. On issue number 1, as to whether the plaintiffs are the registered owner of the suit property, it is the plaintiff’s submission that they are registered owner of the suit property having exhibited before court a copy of a title and a certificate of official search as P.Exhibit 5, 6 and 7 and having bought from the one Stephen Partereto and Nakuyiet Noratete Kura and that their interests are protected and vide section 24 and 25 of the Land Registration Act. In support of this they cited the decision in the case of George Orango Orango Vs. George Liewa Jagalo and 3 Others.
53. They further submitted that the previous registered owners did have not challenged their title.
54. On issue number 2, as to whether the defendant is the owner of the disputed portion.
55. The plaintiffs submitted that the Agreements for sale produced by Defendant in respect of 27 acres out of L.R No. Transmara/Keriankani/9, the said agreements did not state the exact ground location bought by the Defendants, no sketch maps to show the exact portion that he was purchasing.
56. The plaintiffs submit that the Defendant in his evidence indicated that he had occupied for more than 20 years the Agreements produced were prepared in 2012 and 2013. If indeed he had lived for 20 years as alleged the plaintiffs submit that the Defendant would have sued for adverse position and/or pleaded Constructive Trust. The plaintiff submits that the Defendant did not discharge the burden of proof under section 107 and 108 of the Evidence Act.
57. The plaintiffs submit that the 3rd Notice issued herein in untenable, as the 3rd parties are not in occupation of the suit property but it is the Defendant who is sought to be evicted.
58. The plaintiff submit that no indemnity can’t attach to the Defendants since the 3rd parties are not in occupation and have no interest in the suit property.
59. The plaintiff submit for an award of General damages for trespass for a reasonable amount.
60. They submit that the court enters judgment in favour of them.
Defendant’s Submission
61. The Defendant submits that a Constructive Trust and on proprietary estoppel was established under section 28(b) of the Land Registration Act once the full purchase price was paid and he was put in possession. Reliance was placed on the decision in Willy Kimutai Kitilit Vss. Michael Kibet, as well as Maina and 87 Others Vs. Kagiri and Others.
62. The Defendant; submitted that the plaintiffs’ title having been obtained fraudulently lacked the protection of law he cited the decision of Munyu Maina Vs. Hiram Gathiha Maina (2013) eKLR.
63. The Defendant submits that the plaintiff did not discharge the burden of proof and failed to prove trespass, since his entry was sanctioned by an Agreement for sale.
64. On liability of the vendors. the Defendant submits that liability ought to lie with vendor who sold the suit property twice.
65. They rely on Agricultural Finance Corporation Vs. Lengetia Limited and Jack Mwangi (1985) KECHA 58.
66. The Defendant submits that the vendors have unjustly enriched themselves against the constitutional values of equity justice and good governance.
67. Before framing issues for determination, it is common ground between the plaintiff and the Defendant that;
(i) The plaintiff is the registered owner of Transmara/Kerianki/772 while defendant is owner of Transmara/Keriankani/398.
(ii) That both of them trace their properties from Oloishuro Ole Barta, and/or his descendants.
Issues for Determination
68. Having analysed the pleadings, evaluated the evidence, considered the rival submissions on the law generally the court frames the following as issues for determination.
1. (a) Whether or not the plaintiffs have proven their case,
(b) If not, should the Defendants defence be upheld.
2. What is the fate of the Defendants third party Notice.
3. What reliefs ought to issue.
4. Who bears the costs of the suit.
Analysis and Determination
69. It is the plaintiff’s case that the Defendant encroached his suit property, Transmara/Kerianki/772. In support of his ownership claim the plaintiff produced a copy of the title for the suit property as P.Exhibit 2.
70. As noted at paragraph 68(1) in this judgment, the issue of plaintiff’s ownership of Transmara/Kerianki/772 is one of the undisputed facts in this matter.
71. In support of his claim for encroachment, the plaintiff called two witnesses, PW2 and PW3, who were expert witnesses. Pw2, testified of a boundary dispute, that had been reported to him between parcels number Transmara/Kerianki/772 and Transmara/Kerianki/728 belonging to the Defendant. He visited the disputed parcels together with PW3 and wrote a report. The registered acreage of Kerianki/728 was 40.5 Ha but occupied about 36.54 Ha on the ground. The acreage on the title tallied with sheet 3, but ground occupation tallied with sheet 1.
72. The witness produced a site visit report dated 13.12.2023 and a ground report dated 30.04.2019 as PW2 exhibit 1 and 2. The said report observed that Transmara/Kerianki/328 had an approximate 4.02 Ha as the registered acreage but on the ground, it occupies 5.036 Ha.
73. The report indicated that the Defendant was occupying 8.5 Ha within the plaintiff’s property claiming he had purchases from the original owner.
74. In the surveyor report, map sheet shows that portion claimed by Orika Ole Roitei was in the plaintiff’s property. PW3 the surveyor confirmed that the Defendant was in occupation of a portion of Kerianki/772, and was occupying 8.5 Ha of the said parcel.
75. In accordance to the original map sheet and plan diagram as annexed in the surveyor’s report, it is clear that the Defendant is occupying a portion of the Plaintiff’s property. As confirmed in sheet 2 of the surveyor’s report.
76. PW2 and PW3 as the expert witnesses both confirmed that the Defendant had encroached on the Plaintiff’s parcel.
77. The Defendants property in Transmara Kerianki 328 as per the title is 4.02 Hectares but occupies 5.036 Hectares on the ground, and the Defendant is claiming a further 8.5 hectares within Transmara/Kerianki/772. Transmara/Kerianki/772 has a registered acreage of 40.50 but is occupying 36.34 hectares.
78. There is an encroachment by the Defendant of about 4.16 Hectares in Transmara/Kerianki/772 out of the 8.5 hectares that the Defendant is claiming in Kerianki/772.
79. In his defence the Defendant testified that he bought from the late Ole Barta.
80. He produced two Agreements for sale for a total of 37 acres, having bought initially 22 acres and a further 15 acres and was put in possession.
81. The Defence submits that by virtue of the said sale and being in possession a Constructive Trust and/or adverse possession operates in his favour.
82. The issue of Constructive Trust and/or adverse possession were not pleaded in the Defence by the Defendant. It is trite law that parties are bound by their pleadings and having not pleaded the same, the Defendant cannot introduce th said issues in submissions as was held in the case of IEBC Vs. Stephen Mule on the proposition that parties are bound by their pleadings; the court had this to say “It is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings or put in other way, which is at variance with the averments of the pleadings goes to t no issue and must be disregarded.” as well as I the case of Daniel Toroitich Arap Moi Vs. Mwangi Stephen Mureithi an Another(2014) eKLR where the court observed as follows: -
“....submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties, “marketing language”, each side endeavouring to convince that this case is the better one. Submissions we reiterate do not constitute at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented...”
83. It follows that the Defendants defence that his occupation was by virtue of adverse possession and/or Constructive Trust having not been pleaded and/or introduced by way of submissions does not hold water.
84. Whereas the defendant produced agreements for sale between himself and members of the Ole Barta family, the said Agreements did not give him rights to occupy the parcel belonging to the plaintiff as the plan diagram clearly shows the ground location of parcel 772, while the said Agreements were silent on the exact location that the Defendant purchased from the Ole Barta family.
85. From the foregoing, it is clear that the plaintiff has proven ownership of Transmara/Kerianki/772, and has proven that the Defendant has encroached on the said parcel, in accordance with the ground site visit report and survey report and the map sheets and plan diagram annexed thereto.
86. Thus, in answer to issue number 1(a) and (b), the court finds that the plaintiffs have proven their case on a balance of probabilities and the Defendant has not proven entitlement to the portion of the suit property that he is occupation in Transmara/Kerianki/772 and his defence therefore fails.
87. On the issue of the third party, Notice which was undefended and interlocutory judgment entered against the third party, the Defendant by failing to prove that he is entitled to the portion he occupies in Transmara/Kerianki/772 , having bought from the third parties, and his defence having not been upheld his claim in the third party Notice with respect to the portion of land in he occupies in parcel No. Kerianki/772, against the third party equally fails. The Defendant may have recourse against the 3rd party in any portion that he claims to have purchased as he may prove, but certainly not the portion in dispute herein that the Plaintiff has proven entitlement.
88. On what orders ought to issue, having proven their case on a balance of probabilities the plaintiffs are entitled to the prayers sought in the Plaint and accordingly judgment is entered as prayed for in the Plaint and as follows; -
89. Having proven trespass, general damages are awardable perse as held in Bhagwani Singh Kallsi Vs. National Housing Corporation and the court awards Kshs.450,000/= as reasonable general damages, in the circumstances.
The Disposition
90. Judgment be and is hereby entered for the Plaintiff against the Defendants as prayed for in the Plaint, together with general damages of Kshs.450,000/=.
91. The Plaintiffs shall issue the requisite Notice under section 152 of the Land Act before eviction of the Defendant.
92. The Land Surveyor and the Land Registrar to fix the boundaries in accordance to the survey report dated 23.11.2023 and as per the plan diagram and the registered acreage of the suit properties thereof.
93. The third party Notice is hereby dismissed.
94. Costs of the suit are awarded to the plaintiffs.
Dated at Kilgoris this 20th November, 2025.
In the presence of
CA – Emmanuel/Sylvia/Sandra
Mr. Shira for the Defendant
Mr. Langat for the Plaintiff
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