Ngelechei v Kipkoech & 6 others (Environment & Land Case 155 of 2013) [2025] KEELC 4184 (KLR)
The bottom line
#The court confirmed land boundaries must follow official survey maps, ordered them restored, but refused the landowner damages because everyone had encroached on someone.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's land is 3.6 acres or 2.484 hectares
- 2.Whether the 1st Defendant has encroached on the Plaintiff's land
- 3.Whether the Plaintiff is entitled to the reliefs in the plaint
- 4.Which order should be made on costs
Key legal issues
#Size of the Plaintiff's parcel
The Plaintiff's land is 2.484 hectares as per the title, not 3.6 acres as contended by the Defendants.
The Defendants merely asserted the 3.6-acre figure without documentary proof. The Plaintiff produced his title as exhibit 2 showing 2.484 hectares. The court therefore preferred the documentary evidence of title over unsupported assertions of the Defendants.
Encroachment on the Plaintiff's land
There was encroachment onto the Plaintiff's parcel 218 by the owner of parcel 78, with the chain of encroachment traced back to parcel 80.
PW2, a surveyor, produced a survey report dated 16th December 2014 showing the Plaintiff's land on the ground was triangular instead of rectangular, and quantified encroachments across parcels 80, 79, 78, 218, 77 and 76. The court found the 1st Defendant (owner of parcel 78) encroached onto parcel 218 by 2.367 acres.
Entitlement to reliefs
Declaratory and restoration orders were granted, but mesne profits and damages for trespass were refused.
The court found the Plaintiff partially succeeded. Since the survey showed the encroachment originated from parcel 80 (7th Defendant), and the Plaintiff himself encroached on parcel 77, and the Defendants other than the 1st were joined on the court's own motion, general damages against the 1st Defendant were unwarranted.
Legal principles established
#- A party cannot claim both mesne profits and damages for trespass; the court may grant only one.
- A continuing trespass gives rise to a fresh cause of action from day to day, so limitation does not bar it.
Court orders
#- 1.A declaration that there is encroachment affecting parcel numbers Cheptiret/Kapkoi Block 1 (Kerita)/80, 79, 78, 218, 77 and 76
- 2.An order that the boundaries of parcel numbers Cheptiret/Kapkoi Block 1 (Kerita)/80, 79, 78, 218, 77 and 76 be restored back on the ground as per the position on the Registry Index Map as was identified in the survey report of 16th December, 2014
- 3.The costs of the restoration shall be shared equally amongst the owners of the affected parcels
- 4.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (further amended plaint dated 6th April, 2021)
Relief refused
#Mesne profits and damages for trespass (prayer (e))
A party cannot claim both mesne profits and damages for trespass; and given the survey findings that encroachment originated from parcel 80 and that the Plaintiff himself encroached on parcel 77, no basis existed to order the 1st Defendant to pay general damages.
Costs of the suit against the Defendants
The 2nd to 7th Defendants were joined on the court's own motion and the 1st Defendant was not the sole cause of encroachment.
Costs
Each party shall bear their own costs; costs of the restoration to be shared equally amongst the owners of the affected parcels.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore find that the Plaintifi's land is 2.484 hectares.
I therefore find that there is encroachment on to the plaintifi's land by the owner of parcel 78.
In view of the fact that the 2nd to 7th Defendants were added as Defendants on the court's own motion and given that the 1st Defendant was not the sole cause of encroachment, each party shall bear their own costs.
A declaration that there is encroachment afiecting parcel numbers Cheptiret/Kapkoi Block 1 (Kerita)/80, 79, 78, 218, 77 and 76.
The costs of the restoration shall be shared equally amongst the owners of the afiected parcels in (2) hereinabove.
Issues in the judgment
#Judgment omits the case number and neutral citation.
Inconsistent duplication in the encroachment figures: parcel 218's encroachment onto parcel 77 is stated twice, and parcel 76 is said both to encroach on parcel 77 and to be affected, creating internal ambiguity.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngelechei v Kipkoech & 6 others (Environment & Land Case 155 of 2013) [2025] KEELC 4184 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4184/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.