NGORIADOMO LOKWANGOLE VS KIDAP LORENGA

JUDGMENT
Introduction
1. The Plaintiff commenced this suit vide a Plaint dated 3rd September, 2015 against the Defendant seeking the following orders:
a) A declaration that the land comprised in membership No. 011 within Chesira Group Ranch belongs to the KARENGAN KILIMAN and those benefiting under him.
b) An order that the Defendant, his family and all those claiming under him do give vacant possession of Land comprised in membership No. 011 within Chesira Group Ranch or be forcibly evicted through the supervision of OCS Kapenguria Police Station.
c) A permanent injunction restraining the Defendant, his family and/or his agents from entering and doing any act on land comprised in Membership Number 011 within Chesira Group Ranch.
d) Costs of this suit.
e) Any other relief that this court may deem fit to grant for the best interest of justice.
2. The Defendant filed his Statement of Defence and Counter claim dated 14th September, 2015 wherein he denied the Plaintiff’s allegations. He sought for the following orders:
a) A declaration that land parcel No. 038 measuring approximately 250 acres out of CHESERA GROUP RANCH forms part of the Estate of the late RONO LORENGA (Deceased)
b) An order of Eviction against the Defendant in the Counterclaim out of land parcel No. 038 measuring 250 acres Chesera Group Ranch.
c) Costs of the suit.
d) Any other relief the court deems fit and just to grant and for the Defendant’s claim to be dismissed with costs.
The Plaintiff’s Case
3. The Plaintiff, one Ngoriadomo Lokwanyole testified as PW1. It was his testimony that the Defendant was his brother in-law. The group ranch was called Chesira Chemwochoi. The land in question was in the name of Karenyan, his deceased brother. He lived with his late brother on the suit land for about 10 years. He also lived with his family on the land. When his brother was being registered as the owner of the land, they were in occupation. He produced the Limited Grant of Letters of Administration as Pexh 1.
4. He testified further that he was chased away from the land by the Defendant’s sons. He also testified that he could not recall the plot number from which that happened. He did not know how to read and write. He denied that he resided on plot number 38.
5. He produced the letter dated 11th April, 2014 as Pexh 2, letter dated 15th April, 2014 as Pexh 3 and the one dated 4th May, 2015 as Pexh 4. It was his testimony that he and the Defendant did a case before the Group Ranch Committee of elders before filing the instant one, and the elders awarded him the land. He marked as PMFI 5 the Resolutions of the elders’ Committee. He went on that they had built on the land but the young men burned them down. He marked as PMFI 6(a) – 6(c) photographs he stated were of burnt houses. He added that his wife was also assaulted and she reported it to the police station. He produced as Pexh 7 a copy of the P3 Form to evidence that. He also produced as Pexh 8(a) and 8(b) treatment chits for his wife.
6. He added he since lives on other people’s land at Kopoch on a land belonging to Ngolengor. He added that his parcel and that of the Defendant were different but that they were not far from each other. He further testified that he was not present when the surveyor sent from court went to the land. In 2015 the elders of the Group Ranch confirmed that the land belonged to him. He marked as PMFI 9 the letter dated 25th February, 2015. He urged the court to declare that the land belonged to them and the Defendant be evicted.
7. Upon cross-examination by Arunga, he confirmed that numbers of membership were different and that Rono Lorenga was the Defendant’s father. He added that Karenya’s number was No. 11 and Rono Lorenga’s was 038. He admitted that the two parcels in respect of those numbers were about 100 meters apart. Further, Lorenga’s land was in Mnagei and not in Chemwochoi. It was at the extreme end of the Group Farm at a place called Embasis. The two were different parcels. He confirmed that the surveyor’s report had his name listed as number 1 with his son listed as number 11. He stated the report was false. He added that the report showed the Defendant’s houses on the site because they built after they burnt down his (their) houses. He was not present when the surveyor went to the ground hence could not show his burnt houses. Following the arson, the Defendant’s sons were not charged in court. He stated that his land was No. 11 but the authors of the report gave it a different number. He confirmed that Joel Alopa Alemuruk was the Chairman of the Group Ranch at Chemwochoi but not of Chesera Group Ranch.
8. There was no re-examination.
9. David Ngoriadomo testified as PW2. It was his testimony that he resided at Chesira Group Ranch, Embasis Sub-location. He added that he was the Assistant Chief of the sub-location. The complainant was his father. The Defendant was his maternal uncle. He testified further that he (DW2) was born in 1974. Chesira Group Ranch existed then. He added that he was born in the Group Ranch. The suit land was in the name of Kitiman, his uncle who was older than his father. He died in 1987.
10. DW2 went on to say they were chased away in 2015. There was violence on the land involving Kidap’s children. He and others chased away reported to the police but they feared to go to the site. His father and the younger wife were accommodated in another person’s land. His name was Nangoria. His mother was hospitalized for one and half months, after which she went with her daughter. His family was not on the land any more.
11. He added that the parcels were separated by a river and another parcel. The Defendant resided with his family on the land. On being referred to PMFI 6(a) – 6(c) of which he stated they showed the houses as burnt by the Defendant’s children. There was a case he had with the Defendant’s children but the court file got lost. He testified that he arrived on the suit land during the surveyor’s visit when they were finalizing. His father and the witnesses were absent. The surveyor sketched their land and labelled it as the Defendant’s. On the ground, parcel No. 38 was located at a different place.
12. He and his people had no place to stay at the moment. He testified further, his wife died of a snake bite and he buried her on the land. His grandmother was also buried on the land. His father’s two children had been buried on the land. The Defendant occupied the land in 2015. He urged the court to declare that the land belonged to Karengan. He added that his father had Letters of Administration over Karengan’s estate.
13. Upon cross-examination, he stated that Karenga’s membership was 011 while Rono’s was 038. The two parcels were approximately 3 kilometres apart. Plot 011 was approximately 40 Ha. The two plots were located at Kapenguria Ward. On the surveyor’s report he confirmed his name was listed under no. 13, his son’s no. 10, his brother’s no.11 and his father’s no. 1. When he went to the land, they found the surveyor had completed the work. The surveyor found the Defendant and his brothers on the ground. They had requested the surveyor to go see the burnt houses but he refused.
14. The Defendant lived on parcel No. 011. Tolelinyang Ngoriareng’s land bordered the suit land No. 011. Mr. Alopa Alemuruk had no rank among the officials of the Chesera Group Ranch. He stated he was a member of the Chemwochii. He was born and brought up on the suit land until 2015. The Defendant left his own land and later alleged that they had invaded his land. There was a river boundary between plot 011 and 038.
15. Upon re-examination by Mr. Kaosa, he stated that between them (as parties herein) was Tolelinyang and the river. The parcels had no common boundary with the Defendant’s land. He stated that the Defendant’s was Plot No. 038. He added, Yohana was his child. They had no issues with the rest.
16. PW2 clarified that they only claimed the land occupied by the Defendant since the rest lived on their land. He also clarified that they were the Defendant’s brothers from another mother.
17. One Amoler Munyangiro of ID no. 11529033 testified as PW3. He adopted his written witness statement filed on 29th September, 2015 as his evidence in-chief. He lived in Chesira Group Ranch, West Pokot County. He was the Group Ranch’s Chairman between 2010 and 2022. He testified further that in 2015 he was the Chairman. Both the Plaintiff and Defendant resided in the Group Ranch. The parcel of land where the Plaintiff resided was No. 11 while the Defendant resided on 38. They resided on separate parcels. The plot which the Plaintiff resided was registered in the name of his brother Karengar Kirimuk (deceased). From when he was born in 1973, he found them residing on the said land parcel No. 11. He added that the Defendant’s father was registered on parcel No. 38. When the dispute arose, land parcel no. 11 was extended to be for the Plaintiff.
18. Further, the Plaintiff’s family had been chased from the suit land by the Defendant’s children. He added that the Defendant’s family moved from their land No. 38 and went to reside on the plaintiff’s land No. 11. To him and the Group Ranch, the Plaintiff was the one who supposed to be on the parcel no. 11 while the Defendant’s family should be on parcel 38.
19. On cross-examination he confirmed that the two numbers 11 and 38 were numbers of memberships in register on the ground. He stated the survey office had not allocated numbers specifically. The land parcels where the two families reside was about 4 kilometres apart. He stated further that since time in memorial the parents and children would build on the parcels of land they resided on. He stated that in 2017 a surveyor was sent to the ground in 2019 where he wrote a report dated 27th February, 2019. It was marked as DMFI 1.
20. PW3 stated that since time memorial, the parts marked on the map as “A” belonged to the Plaintiff, and on “B” and “C” the Defendants’ brothers had settled there. The Defendant resided in “B”. He was not in agreement with the surveyor’s finding that the Plaintiff resided there. He denied the Plaintiff invaded the Defendant’s land. The houses drawn by the surveyor were built by the Defendant after they invaded the land. The Defendant resided on No. 38. He added that No. 38 was not on the map. He added that the map showed plot No. 11 as A. The two parcels of land No. 38 and 11 bordered each other but the Defendant stayed across the river at the No. 38.
21. Upon re-examination, he stated that on the map, No. 11 was shown as “A” which belonged to the Plaintiff. The Defendant’s brothers resided with the Defendant in No. 38. He denied that the parcel of land they reside on should be combined with “A”.
22. Sokolinyang Lopulo testified as PW4. He adopted his evidence in-chief his written witness statement filed on 3rd September, 2015. It was his testimony that he lived in West Pokot in Chesira Community land. There before the land was known as Chesira Group Ranch. He was elected as a “Mukasa” that is a village elder in 1997. The Defendant lived in a different village called Cheptomot village. Both villages were part of the community land. His father was a member of the Chesira Group Ranch. His membership was No. 74 in the register.
23. He added that Karengan Kileman (deceased) was the Plaintiff’s elder brother. Kieleman used to live and farm his land together with the Plaintiff. There were times when he handled a dispute between the Plaintiff and the Defendant over plot no. 11 owned by the Plaintiff’s brother. The Defendant used the membership number of his late father no. 38. The suit land Plot No. 011 had been occupied by the Plaintiff who was still in occupation. The Defendant caused violence and chased the Plaintiff from the suit land.
24. He added that he (PW4) used to be a Committee member of the Ranch. He was the Plaintiff’s neighbor. He testified further that there was a time the Committee of the Ranch handled the dispute between the Plaintiff and Defendant. It found that the suit land belonged to the Plaintiff. He testified that he was among the Committee members that handled the dispute. On 21st February, 2014. He produced the Committee’s Resolution as Pexh 5(a) and (b). He testified that the memberships 011 and 038 were not at same place.
25. On cross-examination, PW4 confirmed that Parcels No. 011 and 038 were on separate places. Further, that survey had not been conducted. But there were boundaries fixed by the Group Ranch elders. The committee gave the parties temporary boundaries. He confirmed that he was aware of a court order that the surveyor goes to the ground. He stated that he was not called for the visit in February 2019. He heard that the surveyor visited the land and found the Defendant and that he drew a sketch. He stated that the Defendants had burnt the Plaintiff’s houses. On being referred to the letter dated 10th August, 2019 he stated that he heard that the land adjudication officer confirmed what the surveyor found.
26. Upon re-examination, he confirmed that he was not present when the surveyor visited the ground. At the time the surveyor’s report was made, the Defendant had already chased the Plaintiff from the suit land. The surveyor did the sketch. Adjudication was done in 1994. The Group Ranch elders were the ones who would show each person their parcel on the ground. He stated that the land was currently under the community land. When the land would be given out, the same would depend on what the elders ranch members had given to an individual at a specific place on the ground.
27. PW4 clarified to the court that he was the current Chairman of the community land and that parcel number 38 was taken over by the Defendant and his brothers after their father died. He further clarified that where the Defendant’s brother lived was also known as No. 38. Parcel No. 011 was neighboring No. 38. The two were different parcels. Survey had not yet been done.
28. That marked the close of the Plaintiff’s case.
Defence case
29. Kidap Lorenga testified as DW1. He adopted his written witness statement dated 14th September, 2018, as his evidence in-chief. It was his testimony that parcel No. 038 Chesara Group Ranch was for his deceased father. He (DW1) took out the Letters for his late father’s estate. He produced the grant dated 21st July, 2017 as Dexh 2. He testified that his father’s land was about 800 acres and that it was surveyed. He never moved from his father’s land to the Plaintiff’s. The Plaintiff’s land was very far from their land. He added that they did not border each other.
30. When the surveyor went to the ground in February 2019, his 3 representatives David, Loriamukon and Lokada were present and listed as Nos. 13 and 11 in the report. The Plaintiff’s representatives were about 30. He added, the surveyor was shown the houses on the ground by the Area Chief and Assistant Chief. The chief found him residing on the suit land and the Plaintiff residing on their parcel of land. He denied having entered the Plaintiff’s land.
31. Upon cross examination, he stated that his father’s land was approximately 800 acres. A surveyor had measured the land. He could not recall the time the survey was done. He stated that the 250 acres were his while his brothers had other acres. He stated further that in the Ranch records the whole land was no. 38. Kiliman Karenga had a parcel of land but he was not the Plaintiff’s brother. The Plaintiff claimed the land parcel of a different person. He admitted that the Plaintiff was his brother-in-law. He did not know Karengan Kilimani or his children. He explained that whenever one was given a group membership number he was shown boundaries of the land by the group elders. He added that his father was given no 38 and Kiliman was give no.11. He stated that upon issuance of titles, the officers usually followed the boundaries that were given by the Group Ranch Committee. He further stated that parcel no. 011 and 038 did not border but were neighboring plots in between the parcels. The Plaintiff’s never had houses on the land. His immediate neighbors were Sokolinyang on one side and Nyangareng on the other. His brothers on the land no. 38 was Lokermer and Lotukenyan. They were the only sons of their father.
32. He stated that they never had a problem PW4. They had always lived peacefully. The Plaintiff’s land and the Defendant’s, were very far from the other. Equally, the land he DW1 bought from one Ruriaruka Lorino was very far from No. 038. They had a written agreement for it. He admitted that he did not know the size. Later, after buying it, he moved to his father’s land.
33. Upon re-examination, DW1 denied invading the Plaintiff’s land. He had never been charged with arson.
34. DW1 clarified to the court that the land did not have a title. The Group Ranch land had never been surveyed. He added that theirs had been surveyed. The measurement was only for the acreage. The Group Ranch never measured their land. He did not know the Plaintiff’s brothers or sisters though he admitted that the Plaintiff was married to his sister. He had bought land in Kopoch which he paid using one cow. He clarified to the court that he had returned to his father’s land about 15 years ago.
35. Joel Siwanyang Lotolim testified as DW2. He adopted his witness statement dated 27th April, 2016 as his evidence in-chief. The suit land belonged to the Defendant and that it had boundaries evidenced by the cut down trees. He further testified that the Plaintiff’s parcel was far apart from the suit land.
36. Upon cross examination, he stated that he was not certain of his age. He had not gone to school. He was a member of Chesira Group Ranch but could not recall his membership number. Parcel no. 38 of the Group Ranch belonged to Loranga Rono. He did not know the Plaintiff’s parcel number. The Plaintiff resided in a different place separate from that of the Defendant.
37. Upon reexamination, he stated that he had a portion of land in Chesira Group Ranch where he resided.
38. Augustine Nyongesa Wamalwa the County Surveyor, West Pokot testified as DW3. He did not have the work card in court. He took over as the County Surveyor in Charge early 2023 after his boss retired. He testified that he was in West Pokot in 2012. It was his testimony that the surveyor who was in charge before he took over was Henry Lumasai. In 2013, they received a court order which directed them to visit the disputed parcels of land and confirm who had occupied the parcels of land. He was the one tasked to implement the order and added that he liaised with the Land Adjudication Office. He established that the Chesira Group Ranch was registered under the Community Land Act now 2016. He issued summons to the Plaintiff, Defendant and the area Chief and fixed the date of the site visit. The summons had a date. He visited the site on 27th February, 2019.
39. When they arrived at the site they found about 20 persons present. He put their names in his report. There were representatives from both the Plaintiffs and Defendants side. The Plaintiff’s representatives were listed as nos. 10, 11 and 13.
40. The Defendant’s family members were listed as no. 2, 3 and 5. The report was dated 27th February, 2019 and filed on 14th March, 2019. The land boundaries had been demarcated by sisal plants and that there was a river to one side. He and his team used the GPS and picked the coordinates of the boundaries as well as the GPS positions of the homestead. They asked the names of the people occupying the homestead where they were given. The land in question had been demarcated into 3 portions, the 1st portion was supplied by the Defendant which was marked as portion ‘A’, the 2nd portion “B” was occupied by Lokemer Loranga and his family while the 3rd one was occupied by Lotukenyan Lorenga and referred to it as parcel no. “C”. There was church inside the portion occupied by Lokemer near the corner. There was no homestead on the Plaintiff’s portion. The Plaintiff could not identify his homestead since he alleged that the Defendant had burnt them. After the survey, he drew a sketch plan which he had attached to the report. He produced the report dated 27th February, 2019 as D-exhibit 1.
41. Upon cross examination, DW3 confirmed that the exercise took place in land which was under the Land Adjudication. He did not know the membership parcel number in the Group Ranch as the numbers are captured in the Land Adjudication office records. The chairman of the Group Ranch was present during the site visit. The chairman, confirmed that the Plaintiff resided across the river. The Plaintiff and his witnesses were present during the survey. The people did not sign his record. He did not have any affidavit of service to show that the persons were served. In the Group Ranch membership, members could exist but on different portions. He stated that the Plaintiff was not resident on the disputed area.
42. The order by the court dated 14th March, 2017 was that he visits the site and determine the portions acreage of the parties. The parties were only shown (by the Ranch) portions to occupy on the ground. After adjudication is done the register of the adjudication shows numbers which will then crystalize when title deeds are to be issued. The Group Ranch was dissolved. He stated that the two numbers 038 and 011 existed in the Group Ranch. He also stated that he got the names of the Plaintiff and his family members when he visited the ground. He added that they were all present and the Plaintiff never complained that those were not his names since he gave him the report in 2017. He confirmed that there were two area chiefs present and the Pokot village elders. He further confirmed that the area chief identified the Plaintiff (from among the people) and they stepped out and confirmed they were the ones. He denied being partisan or having any interest in the land.
43. DW3 clarified to the court that the land had not been surveyed as at then. Survey was to take place the following week or after. No new boundaries would be created since the surveyors will follow the already demarcated boundaries under the guidance of the Committee Members and Land Owners. It was only a matter of picking the boundaries. The Registry Index Map (RIM) would also be prepared. His assumption was that at there were no disputes and added that their title deeds would be issued by the Land Registrar. During his visit to the suit land, none of the persons present confirmed the claim by the Plaintiff that he ever resided on a parcel/portion claimed. He added that even his own representatives did not confirm the said allegations.
44. That marked the close of the Defence case. The Plaintiff’s counsel prayed for another surveyor to visit the suit land. The then County Surveyor was ordered to carry out another survey. He was called to testify , upon the case being re-opened.
45. Raymond Ruto, the County Surveyor West Pokot testified that he had a report dated 9th July, 2024. He further testified that he was to implement the court order dated 6th May, 2024. He visited the ground on 30th May, 2024 in the company of the land adjudication officer with two other surveyors from his office and 4 police officers from Kapenguria to provide them with security. The assistant Chief Naramam sub-location was present together with the group ranch committee members and the committee interim chairman. Both the Defendant and the Plaintiff together with their families were all present. He testified that the neighbors were also present.
46. His findings were that the boundaries were put in place in 2014. He was informed of the same by the committee. He got the current position on the ground as per the information from the committee members present that the plaintiffs and his family were evicted from the ground. The Plaintiff showed him some remains of structures confirming that the houses which were burnt. He testified that he requested the Plaintiff and the Defendant to give them surveyors, as the lead person to direct them around. The houses marked 1, 2, 3, and 4 were the Defendant’s houses while the houses marked as 5, 6, 7, 8, 9 and 10 was the evidence of the burnt houses. He did not receive information on how the Plaintiff was evicted from the ground. The current committee had been recently elected for Chesira Ranch. The Ranch committee had a record of the membership but they did not produce them. His mandate was to report whether there was encroachment and if the two parcels of land were adjacent to each other which he did.
47. It was his testimony that they asked the committee, where they confirmed that both the Plaintiff and Defendant claimed interest on the parcel of land. He, the surveyor, was assisted to identify the membership numbers 011 and 038 claims on the ground. He added that they both claimed the same parcel of land on the ground. Tthe current committee members confirmed that each person who had been allocated land knew their positions on the ground. He added that the committee had only the register where they confirmed that the said the land was allocated in 2024.
48. He added, in his report, he indicated the membership number of the Plaintiff and Defendant being 011 and 038 respectively. He got the acreage of the land. The Defendant was the one on the land. Both parties were supposed to be on the land and that was the reason why the Plaintiffs houses were burnt and the same was shown on the ground and sketch map he drew. The committee only had the register. He was not aware that the former chairman came and testified that both the Plaintiff and Defendant’s parcel were separate. He testified that they were shown the same parcel number and surveyed the land.
49. Upon cross examination, he confirmed that both parties were present 30th May, 2024 when they visited the land and surveyed it. He further stated that the parcel was occupied by the Defendant who had four houses on the land as his homestead. He added that the Defendant’s family resided on and utilized the land.
50. The county surveyor confirmed further that the purported burnt houses were pointed out by the Plaintiffs but he stated that he could not confirm if the structures were burnt houses.
51. His further testimony was that the role of the land adjudication officer was to confirm if the Defendant and Plaintiff were members of the Ranch and the Committee was the right one to do so. He added that the Assistant Chief was to provide security together with the four police officers. The four Committee members were to show them the boundaries of the Plaintiff and Defendant’s parcels. Each committee member confirmed that they knew their boundaries. The land measured 45.8 Ha. The land adjudication officer had an adjudication register with him.
52. He, the Surveyor, was unable to establish how many acres each person was given. He had not established where or how far away the Plaintiff currently lived. The assistant chief confirmed that he did not have records of the alleged eviction.
53. He stated that the report confirmed that the Plaintiff was evicted. In the records the membership numbers of the Plaintiff and Defendant were different. He stated that according to the report, the membership number 011 belonged to Karengang Kilimak while membership 038 was of Lorenga Rono.
54. The Plaintiff’s witness at the site, Longariadomo Lokunyole, said that he was representative of Karenyang Kilimak while the Defendant was as the representative was of Lorenga Rono in 038. He stated that the current Committee said they were not present during the Adjudication process hence they could not tell the specific position on the ground. He could not confirm that the two different numbers could not share the same position on the ground. He requested the Plaintiff and Defendant to show him their sketches but they didn’t give him any.
55. He clarified to the court that the Group Ranch had not been Adjudicated. The Plaintiff said the entire land belonged to them only that they were chased by the Defendant. He added that the Defendant also showed them the entire land and claimed that it belonged to them and they also lived there. He clarified that the land fell under what was the Group Ranch under the previous law but after transition it was now known as Chesira Community land.
56. He added that the Chesira Community land had a certificate of incorporation. He also clarified that it was last year (the previous year to his testimony given on 2nd October, 2024, when the Community got the consent for sub-division. All the members who had disputes, their parcels had not been surveyed. He also added that they (his offices) were in the process of doing sub-division for the undisputed parcels.
Submissions
57. Counsel for the Plaintiff filed his submissions dated 22nd October, 2024 where he submits that three surveyors visited the suit land and made different reports. He submits that the first visit by the county land adjudication officer as per his report dated 10th November, 2016, which indicated that there was tension between the parties and the exercise was aborted. He submits that the second visit was pursuant to the court’s order dated 14th March, 2017 which brought about the surveyor’s report dated 27th February, 2019. He submits that the report was disputed by the Plaintiff on the ground that he was never invited to be present though his name and that of his family members appeared in the report.
58. He submitted that the finding on the said report was that the suit land was occupied by the Defendant and his family and that the Plaintiff did not own a homestead on the land. The surveyor attached a map that showed houses that belonged to the Defendant and his family together with his brothers as his neighbors. He submits that the final report was vide the court’s order issued on 6th May, 2024 which directed the county surveyor in the company of the land adjudication officer together with the group ranch officials. He submits that the visit on the site was on 30th May, 2024 and the report indicated that he was able to pick the coordinates. It was counsel’s submission that the said report was subject to cross examination where the surveyor confirmed that the Plaintiff and his family used to be on the suit land but their houses were burnt and they were evicted as the evidence left was that of the ash of burnt houses.
59. He argued that the said evidence supported the Plaintiff’s claim that before eviction, they occupied membership number 011 which was the disputed land where their houses were burnt. He submits that the surveyor tried to mislead the court that members from the Plaintiff’s family were the ones who assisted him in identifying their land. He argues that the evidence contradicted with his findings at the last paragraph of his report which confirmed that he was assisted by the group ranch committee to pick the coordinated.
60. He added that there was a copy of the member’s register availed by the adjudication office which confirmed that there was membership no. 038 and 011. It was his submission that the fact that the surveyors failed to identify the two membership numbers on the ground, the evidence confirmed that the Plaintiff has been in no. 011.
61. Counsel submitted that since the adjudication process was ongoing where the Defendant had encroached, there was a likelihood that the Defendant was going to be registered as the owner on the land which he had evicted the Plaintiff. He urged the court to make a declaration that the land comprised membership no. 011 belonged to Karengan Kiliman and the Defendant should give vacant possession.
62. On his part the Defendant submitted that the County Surveyor could not tell how he arrived at his report. Further, that the evidence of the Plaintiff that he had been evicted was only his creation since there was no report made at the police station or other independent verification done.
ISSUE, ANALYSIS AND DETERMINATION
63. This Court has carefully considered the pleadings, the evidence, the exhibits, the submissions. It finds that the issues for determination are:
a) Whether the land currently occupied by the Defendant and his family within Chesira Group Ranch belongs to Karengan Kiliman (deceased) comprised within membership number 011.
b) Whether the Plaintiff is entitled to the orders sought.
c) Whether the Defendant is entitled to the orders sought in his counterclaim.
d) Who to bear the costs of the suit
64. This court proceeds to determine the issues sequentially.
a) Whether the land currently occupied by the Defendant and his family within Chesira Group Ranch belongs to Karengan Kiliman (deceased) comprised within membership number 011.
65. It is not in dispute that the Plaintiff’s late brother and the Defendant’s late father were both members of Chesira Group Ranch with membership no. 011 and 038 respectively. It is also not in dispute that the Defendant and his family are in occupation of the disputed land 011 which the Plaintiff claims to be theirs. It is a fact that the Plaintiff and his family are not in occupation of the suit land. It was the Plaintiff’s case that the Defendant’s sons chased them away from the suit land and allegedly burnt their houses down. He sought for a permanent injunction against the Defendant and his family from occupation of the suit land. The Defendant on the other hand claims that the Plaintiff had encroached onto their land being 038 and sought for an eviction order against him. 
66. It was clear from the evidence and testimonies of PW4 an elder in the Group Ranch and the county surveyor that the ranch had not yet been surveyed or demarcated. The county surveyor confirmed that he was unable to confirm the acreage of each member on the group ranch. He also confirmed that each member knew the extent of their land on the ground. It is this court’s view that it was not clear from the evidence whether or not the Plaintiff and his family were evicted from the suit land by the Defendant.
67. Article 63(3) of the Constitution provides that:
“Any unregistered community land shall be held in trust by County Governments on behalf of the communities for which it is held”.
68. Section 4(3) of the Community Land Act (No. 27 of 2016) provides as follows:
“Community Land shall vest in the community and may be held under any of the following tenure system –
a. Customary
b. Freehold
c. Leasehold, and
d. Such other tenure system recognized under this Act or other written law”.
69. It is noteworthy that in as much as the county surveyor testified that survey and the registration process was in the pipeline, he did not adduce any documents to confirm the same. It is this court’s view that the occupation and use of the suit property by the Plaintiff and his family before the alleged eviction by the Defendant does not automatically qualify the suit property as private land. It is noteworthy that the mere occupation of an unregistered community land or any portion thereof does not crystallize as private proprietorship claims and neither does it grant any community member thereof a better title to the use, occupation, or even disposal of the same at the expense of other community, family, or clan members.
70. In the case of Bahola Mkalindi Rhigho & 9 others V Michael Seth Kaseme & 3 others [2016] KEELC 1015 (KLR), the court held as follows:
“For as long as Trust land remained unadjudicated and unregistered, it belonged to the local tribes, groups, families and individuals of the area. Once adjudicated and registered, Trust land was transformed into private land.”
71. It is trite law that as long as trust land was unsurveyed and unregistered, the same belonged to the community in undivided share. In the instant case, the Plaintiff claims 40 hectares being a portion of the greater Chesira Group Ranch specifically under membership no. 011. It is clear from the surveyor’s evidence that adjudication had not taken place. In addition, it is a fact that the County Land Adjudication and Settlement despite having visited the ground, failed to ascertain the coordinates position on the ground and therefore it this court’s view that the suit land being undivided remains as community land for use by all members of Chesira Group Ranch and no member can individually claim a portion. I thus find that the Plaintiff cannot claim that the 40ha portion under membership no. 011 individually belonged to Karengan Kiliman (deceased). 
b) Whether the Plaintiff is entitled to the orders sought.
72. Having found that the suit property did not belong to Karengan Kiliman (deceased), it therefore meant that the Plaintiff is not entitled to the prayers as sought in his Plaint dated 3rd September, 2015. 
c) Whether the Defendant is entitled to the orders sought in his counterclaim.
73. The Defendant sought for eviction orders against the Plaintiff from the portion of land parcel under membership no. 038 forming the greater Chesira Group Ranch. It is this court’s finding that the claim that membership no. 038 belonged to his deceased father cannot stand since the land is community land which remains unsurveyed. It means that the land is owned by the greater Community of Chesira and is communally managed. The suit land(s) should be managed as such for and on behalf of the members of the community. Issuance of membership numbers does not translate to individual private ownership but rather a temporary document to entitle the person to reside on or occupy on a temporary basis a portion of the community land which is subject to change with time, based on the structures of the community that owns the land. 
74. The upshot of the foregoing is that both the Plaintiff and Defendant failed to prove their case on a balance of probabilities to warrant granting of this court’s orders.
75. Consequently, both the Plaintiff’s case and Defendant’s Counterclaim are hereby dismissed. The parties are directed to seek their occupation and use of the respective portions they claim in and within structures and mechanisms of the Group Ranch until their issues crystalize in accordance with the law.
d) Who to bear the costs of the suit
76. Each party to bear its own costs.
77. It is so ordered.