Atabo (Suing as the legal representative of the Estate of the Late Sarah Atambo Esironi) v Land Registrar-Kitale & another (Environment and Land Case 54 (E049) of 2021) [2026] KEELC 1203 (KLR)

4. The plaintifi avers that as a result of the encroachment and the illegal caveat, she is unable to access, use, farm, and or utilise the encroached portion. The plaintifi prays for: a. An order for a survey of the portion owned by the plaintifi and registered as Kitale Municipality Block 16/Kaura Wa Bechau/74, to determine the actual mutation as per the existing survey and mutation drawing on the ground, and the level of encroachment and the illegal takeover and or grabbing of more hectares committed by the 2nd defendant. b. Order that the illegal encroachment, takeover, grabbing, and boundary walls and fence, as erected on more hectares of title No. Kitale Municipality Block 16/Kaura Wa Bechau/74 is illegal and unlawful. c. Declaration that the encroached and or grabbed land of more acres on the suit property belongs to the estate. d. An order compelling the 1st defendant to rectify the register of any entry invalidating the purported caution on the title to the suit property placed on the register by the 2nd defendant on 4/6/2010. e. Permanent injunction restraining the 2nd defendant, his agents, servants, or assignees from interfering with the plaintifi’s quiet possession, use, occupation, and enjoyment of the suit property; from trespassing, or in any way dealing with her land, and an order compelling them to vacate her land, failure to which he be forcefully evicted from the suit property. f. General and exemplary damages as compensation for the trespass and the illegal activities thereon, with efiect from 4/6/2004 to date. g. Order that the OCPD Kitale and DCIO Kiminini ensure compliance with the orders granted of both permanent injunction and eviction, should the 2nd defendant refuse to vacate the land voluntarily. 5. The 1st defendant opposed the suit through a statement of defence dated 3/2/2022. It is denied that the deceased was the registered owner of land title No. Kitale Municipality Block 16/Kaura Wa Bechau/74 acquired in 1980, measuring approximately 3.175 Ha, or that it had been encroached upon by the 2nd defendant, and a caution/caveat was registered by the latter against its title register. 6. The 1st defendant averred that if indeed any caveat/caution was registered against the title register for the alleged suit property, which is denied, nothing would have stopped the 2nd defendant from lodging such an application with it, as the law allows the 2nd defendant if he has an interest on any land to lodge one, to preserve such property pending determination of any imminent threat to such interest in land. 7. The 1st defendant averred that if satisfied, it would register the caution after determining the capacity of the person lodging the caution, to preserve the interest of the cautioner against any other person from dealing with the land in a way that prejudices the said interest. 8. Further, the 1st defendant denied the alleged unsuccessful attempts by the plaintifi to remove the caution, and if at all any such attempts were made, the 1st defendant would not have removed the restriction as the 1st defendant was not satisfied that the plaintifi held any interest or right over the suit property, to warrant the removal of the caution on her behalf, under Section 73(2) and (3) of the Land Registration Act. 9. The 1st defendant averred that the caveat was not lifted for failure by the author of the request to provide a grant of letters of administration as proof that she was the legal administrator of the estate of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 2

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registered owner, with legal rights to have dealings over the suit property. The 1st defendant denied knowledge of the alleged encroachment, or illegal takeover of the suit property by the 2nd defendant. 10. The 1st defendant averred that no demand or intention to sue was made to it, contrary to the law. 11. The 2nd defendant opposed the suit through a statement of defence dated 26/7/2022. He denied the alleged encroachment, illegal takeover, or grabbing of a portion of the suit property, as alleged by the plaintifi, or at all. The 2nd defendant averred that on diverse dates between 15/10/1990 and 10/5/1994, he bought 2 acres of land from the late Atambo Esiron Nakiran at Kshs.120,000/=, as part of the land comprised in Kaura Farm, plot number 22, which caused the subdivision of the said farm sometime in 1995, whereby she was issued a title deed on 22/4/1996 for the suit property measuring 3.175 Ha. The 2nd defendant obtained his title No. Kitale Municipality Block 16/Kaura Wa Bechau/75, measuring approximately 0.8093 Ha. 12. The 2nd defendant averred that on or about 23/4/1994, the plaintifi and he agreed to resolve their dispute, and he gave her access to the road to the river. Thereafter, the late mother surrendered the lower part of the suit property to the 2nd defendant. The 2nd defendant averred that he had a very cordial relationship with the deceased and they had no boundary dispute with her at all. 13. Further, the 2nd defendant specifically denied being in illegal occupation, taking over, or encroachment of 2.3657 Ha of the suit property. 14. The 2nd defendant denied that the plaintifi is the legal administrator of the estate of the late Atambo Esiron Nakiran, and shall raise a preliminary objection that she has no locus standi to bring the suit. The 2nd defendant avers that the boundaries between land parcel Nos. Kitale Municipality Block 16/ Kaura Wa Bechau/74 and 75 were demarcated on or about 15/10/1990, which is over 32 years ago, and titles issued on 22/4/1996 and 6/2/1998, respectively; hence, the plaintifi’s claim is barred under Section 7 of the Limitations of Actions Act. 15. At the hearing, Catherine Orondo Atambo testified as PW1. She relied on a witness statement dated 11/11/2021 as her evidence-in-chief. PW1 told the court that her late mother acquired title No. Kitale Municipality Block 16/Kaura Wa Bechau/74 in the 1980s, measuring 3.175 Ha, following which a title deed was issued in her name on 22/4/1996. PW1 told the court that later she sold and transferred 1 acre of her land to the 2nd defendant as per a sale agreement dated 15/10/1990, which he took possession of, but later discovered that he had fenced ofi, encroached, and illegally taken over more land than he had been sold and transferred. 16. PW1 stated that these developments prompted her late mother to write a letter dated 11/11/1998, to the 1st defendant for intervention. PW1 said that the 2nd defendant, despite protests, has continued to illegally occupy more hectares of the suit property, even though he only purchased 0.8093 hectares as per the title deed issued to him for Kitale Municipality Block 16/Kaura Wa Bechau/75. PW1 explained that the 2nd defendant hindered her mother from accessing her land until she passed away on 31/7/2004, by blocking her access to the riverbank. 17. PW1 said that on 12/10/2016, she discovered that the 2nd defendant had secretly, illegally registered a caution over the title register to the suit land with the 1st defendant, and despite letters dated 13/10/2016 and 8/11/2021 to the 1st defendant to intervene, the caution has not been lifted. 18. Further, PW1 said that the original mutation form used to hive ofi the 2nd defendant’s land by the 1st defendant and the surveyor from the suit property is clear, otherwise the 2nd defendant’s acts are not only fraudulent, illegal, but have also interfered with or violated her constitutional rights under Article https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 3

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40 of the Constitution, for hiving ofi and occupying more land than he was entitled to, which amounts to self-allocation, grabbing, and trespass to land. 19. PW1 produced as exhibits a copy of the title No. Kitale Municipality Block 16/Kaura Wa Bechau/74, sale agreement dated 15/10/1999, letter dated 11/1/1998 by the deceased to the 1st defendant, an oficial search certificate dated 11/11/1998, for Kitale Municipality Block 16/Kaura Wa Bechau/75, oficial search dated 3/11/2020 for the suit property, letter dated 13/10/2016 over encroachment, letter dated 8/11/2021 to the defendants, demand letter dated 8/11/2021, copy of original mutation form and the survey plan for the two titles, surveyor’s report dated 28/4/2022, court order dated 24/3/2022, copy of a letter dated 16/3/2021, certificate of confirmation of grant issued on 21/10/2021, court order issued on 25/2/2025 in the succession cause, Kitale P & A No. E011 of 2020, as P. Exhibit No. (1) - (15) respectively. 20. PW1 said that she discovered the caution while trying to file for the succession proceedings. PW1 said that the extent of the encroachment is 1.16 acres, a portion of which the 2nd defendant did not pay for or obtain legally, from her late mother, which is a river at the lower side of the suit property. PW1 denied that her late mother had 9 other children, as alleged by the 2nd defendant. 21. Equally, PW1 denied that her late mother received any consideration for the extra 1.16 acres from the 2nd defendant as per the acknowledgement notes or sale agreement dated 15/10/1990, in the list of documents in the 2nd defendant’s trial bundle. 22. PW1 denied that the area chief, Milimani, witnessed any sale agreement for the portion between her late mother and the 2nd defendant. Regarding P. Exhibit No. (13), and DMFI-(4), dated 23/4/1999, PW1 disputed the alleged signature on the documents as belonging to her or being in attendance at such a meeting before the area chief on 23/4/1999. PW1 denied executing such an agreement before the area chief. PW1 said that she learned about her late mother’s complaint at the land ofice. PW1 denied knowledge of the surveyor's resolution, after an alleged site visit by a Mr. Ayumba, to which the 2nd defendant paid Kshs.11,000/= as survey fees, to draw a sketch map. 23. As to the letters dated 7/12/2009 and 15/12/2009 to the 2nd defendant, PW1 said that she was not privy to the same, or their makers, alleged to be her siblings. As to the surveyor’s report dated 14/9/2023, PW1 denied that 0.48 acres of the suit property is riparian land. PW1 denied illegally obtaining the title deed for the suit property dated 22/4/1996. 24. The plaintifi was categorical that the boundary for the two parcels of land was fixed after the 2nd defendant bought the 2 acres; he ignored the same and fenced more land than he is entitled to, contrary to the Registry Index Map. 25. PW1 said that her late mother was in active occupation of the disputed portion through a farm worker, where there used to be a structure. PW1 said that the county land surveyor's report was clear that the 2nd defendant had encroached on her land, contrary to what he was sold as 2 acres by her late mother. The plaintifi disowned the receipts relied upon by the 2nd defendant for Kshs. 70,000/=, allegedly paid to acquire the disputed portion. 26. PW1 blamed the 1st defendant for registering and maintaining a caution over her title for no justification. PW1 said that the 2nd defendant had protested against the succession cause. Further, PW1 said that she was the sole beneficiary of the estate of her late mother as per P. Exhibit Nos. (12), (13), (14), and (15); otherwise, no one else, as alleged by the 2nd defendant, came out to jointly claim to have been a sibling or beneficiary of her estate. PW1 said that the alleged siblings did not feature in the succession proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 4

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27. PW1 said that though the 2nd defendant shows 0.80093 Ha, the county surveyor's report established that he is occupying more land on the ground than he is entitled to, which forms part of her title deed. 28. Further, PW1 said that, as per the RIM, her late mother’s land should extend to the river. PW1 disputed the alleged sketch map and report by the 2nd defendant, since it was not made by a licensed surveyor, and she was not a party to his visit or report. PW1 said that her late mother never authorized the planting of trees on the disputed portion by the 2nd defendant. 29. Protus Muindi testified as PW2. As a Land Surveyor, he told the court that following a court order dated 24/2/2022, he visited the two parcels of land Nos. 74 and 75, in the company of the parties on 28/4/2022, executed the terms and conditions of the order, and prepared a report dated 28/4/2022, produced as P. Exhibit No. (11). 30. PW2 told the court that his findings were that, contrary to the description on the RIM, the parcel No. 75 occupies more land than what is on the title, which portion belongs to parcel No. 74, as it is supposed to be 3.15 Ha, which is equivalent to 7.85 acres, in line with the title deed. 31. PW2 said that on the ground, parcel No. 74 covers 6.48 acres, which is less than the ground by 1.16 acres. PW2 said that the extra 1.16 acres belonging to parcel No. 74 are occupied by the 2nd defendant, whose land is supposed to be 2 acres instead of 3.16 acres; he currently has it fenced ofi. PW2 said that parcel No. 75 is wrongly demarcated on the ground, such that it encroaches onto parcel No. 74 by 1.16 acres, cutting ofi access to the stream from the plaintifi. 32. PW2 said that the attached to P. Exhibit No. (11) are certified copies of the RIM for the two parcels of land, which he relied upon in making his report. PW2 said that the ground measurements and realities must be aligned with the acreage in the title deed, in which case the 2nd defendant must cede to the plaintifi the extra acreage, belonging to title No. Kitale Municipality Block 16/Kaura Wa Bechau/74. 33. PW2 said that he visited the land on 13/4/2021, but not on 13/4/2022, after he was issued with the court order. PW2 said that he was not privy to the sale agreements between the deceased and the 2nd defendant. PW2 said that the RIM was not amended to refiect any agreements made between the 2nd defendant in relation to the access roads. He denied that there was any isolated riparian land in the RIM. In any event, PW2 said that parcel No. 74, as per the map, is supposed to touch the stream. PW2 said that the plaintifi’s land is the one that should be touching the stream and not plot No. 75. 34. Professor Wanjala testified as DW1. He relied on a witness statement dated 26/7/2022 as his evidencein-chief. He told the court that on 15/10/1990, he entered into a sale agreement with the late Atambo Esiron Nakiran to purchase 1 acre of land for Kshs.50,000/=, which he paid for, and that in 1990, he bought another 1 acre, plus the catchment area at Kshs.70,000/= which he paid on various dates as per the acknowledgement receipts, till he cleared the balance on 10/5/1994. 35. DW1 said that sometime in 1995, the seller executed a consent for subdivision and transfer, following which he obtained title deeds for the two parcels of land for parcel No. 74 measuring 3.175 Ha and No. 75 for 0.8093 Ha. DW1 said that they did not have a dispute over the boundary with the seller until 1999, when there was a complaint at the chief’s ofice, Kibomet Location, on the access road to the river, by the plaintifi, on behalf of her late mother. 36. DW1 said that on 23/4/1999, they appeared with the plaintifi before the area chief and executed an agreement to resolve the dispute, and he agreed to grant the plaintifi an access road to the river, marking the end of the dispute. DW1 said that at the time, the plaintifi at the time did not complain of any encroachment or occupation. DW1 said that he has been in occupation, since 1990, of his 2 acres of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 5

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land, which includes the wetland that extends to the river, for a period of 32 years, and 24 years since he obtained the title deed for his land, without objection from the seller. 37. DW1 termed the suit a witch hunt, malicious, and coming too late. DW1 said that the plaintifi has siblings who are beneficiaries of her estate and lack locus standi to sue on behalf of the estate. DW1 denied receiving notices or letters from the plaintifi in relation to the issue before the suit was filed. 38. DW1 denied that he had encroached on the plaintifi’s land. DW1 produced as exhibits a copy of the sale agreement dated 15/10/1990, bundle of receipts, copy of the title deed for Kitale Municipality Block 16/Kaura Wa Bechau/75 dated 6/2/1998, copy of the dispute resolution agreement dated 23/9/1999, survey sketch map, final map, and receipts dated 30/12/2001, letter dated 7/12/2009, survey report dated 14/9/2022, letter dated 11/5/2010 from the area chief to the Land Registrar, as D. Exhibit No. (1), 2(a)-(g), (3), (4), DMFI-(5), (6), (7), DMFI-(8), and (9) respectively. 39. DW1 told the court that he has been on the land since 1995, after he fenced ofi the portion, planted trees now in their maturity, for over 30 years, with no objection from the seller. DW1 said that he was not aware of the RIM until it was produced in court, yet what he said was done 10 years after he erected his fence. DW1 said that the surveyor did not visit his land and verify the correct boundary as it was agreed on 29/4/1999, following the dispute resolution as per D. Exhibit No. (4). 40. DW1 said that the seller called the chief at the meeting, saying that she had no claim over his land in the presence of the plaintifi. DW1 said that after all the parties executed D. Exhibit No. (4), they were happy, except for the issue that arose following the death of the seller in 2004, which was harassment or malice on the part of the plaintifi. 41. As to the caution. DW1 said that the same was filed by the plaintifi’s siblings, as per entry No. (4) and also his entry No. (5) dated 4/6/2010. DW1 said that up to the death of the seller in 2004, no one disputed his occupation or the boundary after D. Exhibit No. (4) was execution, though its recommendation or terms were yet to be implemented on paper, following the plaintifi taking away the original title deed. 42. DW1 said that D. Exhibit No. (9) was written after she complained over non-implementation of D. Exhibit No (4). DW1 said that though he had filed his protest in the succession cause, he could not tell the outcome. DW1 admitted that he is currently occupying more than is stated in the title deed issued on 6/2/1998, because it forms part of a wetland. 43. DW1 said that from the RIM, his land does not touch the river line. DW1 said that although the sale agreement relates to 1 acre, the receipts he has produced refiect how he bought the extra land, including Kshs.70,000/=, for another 1½ acres. 44. DW1 insisted that the acknowledgement notes were legally executed. DW1 confirmed to have received the demand letter and responded to it as per D. Exhibit No. (7). DW1 said that the initial boundary was shifted in 1995 after he planted the trees with the consent of the deceased seller. DW1 said that the extra land under his use since 1995 legally belongs to him after he paid Kshs.70,000/= going by D. Exhibit No. 2(a) -(g). 45. DW1 said that the RIM was drawn on 10/1/2005, after he had already acquired the extra land as per D. Exhibit No. (4) DW1 said that he was authorised by the deceased to plant trees on the disputed land. DW1 confirmed that the deceased used to have a semi-permanent house on the disputed portion, which was occupied by her farm workers. 46. Shem Kiptoo Sawe testified as DW2. He relied on a witness statement dated 26/7/2022 as his evidencein-chief. As a former Senior Chief Kibomet Location, now retired. DW2 told the court that he was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 6

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aware of D. Exhibit No. (4), which the plaintifi and the 2nd defendant executed before him, to settle a land dispute between parcels No. 74 and 75 into an access road, where the plaintifi was complaining on behalf of her late mother. 47. DW2 said that the two parties amicably resolved the issue by signing an agreement. DW2 confirmed writing a letter dated 15/5/2010 to the Land Registrar, seeking his intervention as per D. Exhibits No. (7) and (9). DW2 confirmed visiting the suit property. DW3 said that on 23/4/1999, the deceased called him and confirmed that she was in Lodwar during the arbitration process. DW2 told the court that he handled the matter, though he had no powers in law to determine boundaries and matters of trespass. 48. Ben Wanyama testified as DW3. He told the court that he is a Survey Assistant No. 253 working under Opiyo & Associates, ISK No. 4682, though he had not attached his credentials to the report marked as DMFI-(8) dated 14/9/2023. DW3 confirmed visiting the two parcels of land. DW3 told the court that the RIM was not refiective of the situation on the ground, hence its need to align the same with reality. He produced DMFI-No. (8) as D. Exhibit No. (8). Asked what P. Exhibit No (1), DW3 faulted the same as regards the riparian land. 49. DW3 confirmed that under Sections 33(5), 36(b) of the Survey Act and the letter dated 13/11/2025, he was not a licensed surveyor and therefore Exhibit No. (8) was invalid to the extent that it was not countersigned or prepared with the assistance of his principal licensor. DW3 admitted that his report did not comply with Section 33(5) of the Survey Act; hence, he was not competent to prepare and produce it. 50. DW4 was James Omoni. He relied on a witness statement dated 26/7/2022. He disowned knowing the plaintifi. DW4 said that he never wrote a witness statement as alleged by the 2nd defendant to state that the late Atambo Sarah was his late mother, or that the plaintifi. DW4 said that he does not know anything about parcels No. 74 or 75, or details about the deceased before the court. DW4 said that his mother is called Liguran and not Sarah Atambo. DW4 said that the 2nd defendant was a customer only who took his identification card for purposes of ofiering him employment at the County Government of Trans Nzoia, where he used to work. 51. Jared Sharon testified as DW5. As the Deputy Land Registrar, Trans Nzoia County. DW5 produced copies of the green card for parcels No. 74 and 75 as D. Exhibit No (10). DW5 also produced the area list for Kaura Wa Bechau Farm and a letter dated 29/11/2022 as D. Exhibit No. (11) and (12). DW5 said that from her land records, the two parcels of land were not subdivisions of each other but original parcels of land. DW5 confirmed that the title register for parcel No. 74 had a caution registered by the 2nd defendant, claiming a purchaser’s interest. 52. DW5 said that the title for parcel No. 74 was tallying with the acreage in the green card as per P. Exhibit No. 11(b). Equally, DW5 said that the acreage of parcel No. 75 tallies with what is in the green card and the RIM. DW5 said that the RIM shows that there exists both an access record and a river accessed by parcel No. 74. 53. Further, DW5 had no records of the details of the cautioner and the nature of his grievances. DW5 said that the caution was not lifted, since the plaintifi at the time had no letters of grant of administration until it was presented to her ofice in December 2022, accompanied by Forms No. LR 39 and 42. DW5 said that the prescribed form to lift the caution was never filled out. 54. The plaintifi relies on written submissions dated 15/12/2025, isolating seven issues for the court’s determination. The plaintifi submits that the suit is not time-barred as claimed by the 2nd defendant under Section 7 of Cap 22 in view of the court’s ruling dated 29/3/2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 7

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55. Regarding the caution lodged on 4/6/2010, the plaintifi submits that it was an unlawful exercise without justification, for the 2nd defendant has been unable to produce evidence of payments, acknowledgement receipts, a sale agreement, a mutation form for the extra portion measuring 1.16 acres, and a valid title for the same, compared to the plaintifi’s evidence and that of the 1st defendant in relation to the copy of records, title deed, area list and the surveyor’s report. 56. The plaintifi submits that despite written letters and a meeting at the Land Registrar, the 2nd defendant failed to lift the caution. The plaintifi submits that she did all that was expected of her under Section 73(1), (2), and (3) of the Land Registration Act, as admitted by DW5, yet the caution was not lifted. The plaintifi submits that the acts of the defendants interfered with her rights under Sections 24, 25, and 26 of the Land Registration Act, without justification for lodging and maintaining the caution. Reliance is placed on Maria Ngangi Gwako -vs- Charles Mwenzi Ngangi [2014] eKLR. 57. The plaintifi submits that even before the court, the 2nd defendant has been unable to substantiate his right or justification to occupy 1.16 acres, belonging to the estate of the deceased, with authentic documents of sale. The plaintifi submits that she is a bona fide legal administrator of the estate of her deceased mother, as per P. Exhibit No. (12), (13, (14), and (15) based on the copy of the title, green card, and confirmation of ownership and acreage by DW5. Her title for parcel No. 74 remains indefeasible on account of unsubstantiated interests by the 2nd defendant. 58. On encroachment, the plaintifi submits that her testimony and documentation, and the testimony of the surveyor, coupled with admission by the 2nd defendant, confirm the extent of trespass to land of 1.16 acres by the 2nd defendant, which is not justified at all. The plaintifi submits that the letters produced by the 2nd defendant, dated 23/4/1999, 7/12/2009, 15/12/2009, and 11/5/2020, are not admissible in law because the alleged advocate who wrote them died in 2014, and hence amount to hearsay evidence. 59. As to D. Exhibit No. (4), the plaintifi submits that the chief did not produce the original. The plaintifi submits that she was not privy to or a signatory of the same, and that there was no forensic document examiner report to show that she signed it as per Sections 48 and 70 of the Evidence Act. The plaintifi submits that the area chief lacks powers under the Chief’s Act to handle such a dispute on boundary or encroachment, and therefore, D. Exhibit No. (4) and his evidence lacks probative value. 60. As to the evidence of DW3, the plaintifi submits that the letter dated 12/11/2020 from the Land Surveyor’s Board confirms that he is not a Licensed Surveyor and therefore his report ofiends Section 33(5), (6), and (7) of the Survey Regulations and Section 14 of the Licensed Surveyors Code of Conduct. The court was urged to disregard or expunge the report from the court record. 61. On trespass, the plaintifi submits that the survey report dated 28/4/2022 by PW2, documents by the Land Registrar, and her own evidence were consistent that the 2nd defendant is occupying 1.16 acres of land belonging to parcel No. 74; hence, trespass has been duly proved. 62. On damages, the plaintifi submitted that she is entitled to such a remedy. Reliance is placed on Park Towers Ltd -vs- Joh Mithamo Njika [2014] eKLR, Halsbury’s Law of England 4th Edition Vol. 45 para 26, 1503, Gakuria & Another -vs- Mwangi & Others [2025] KEELC 1041 [KLR], Parkar & Another -vs- NQ & Others Civil Appeal No. 139 of 2020, Republic -vs- John Nganga Njeri Criminal Case No. 73 of 2016, and John Chumia Nganga -vs- Attorney General & Another [2019] KEELC 3621 [KLR]. 63. The 2nd defendant relies on written submissions dated 16/12/2025, isolating six issues for the court’s determination. On the purchaser of the land from the deceased by the 2nd defendant, it is submitted that there is evidence tendered that what was bought was cumulatively 3 acres, inclusive of the riparian https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 8

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land. The 2nd defendant submits that the existing boundary for 26 years should not be interfered with, and replaced by the boundary shown in the RIM and sheet map(s) drawn and registered in 2005, long after D. Exhibit No. (4) was executed by the parties. The 2nd defendant submits that it is the RIM that should be amended to refiect the existing boundary. 64. The 2nd defendant submits that the suit is time-barred in view of the issuance of titles in 1996 and 1998 and the erecting of the boundary in 1995, which shows the suit is filed after 30 years, hence ofiending Section 7 of the Limitation of Actions Act. 65. Further, the 2nd defendant submits that the plaintifi cannot purport to be the only beneficiary of the estate of her late mother, going by P. Exhibit No. (2), D. Exhibit No. (2), D. Exhibit No. (6), and DW4 testimony or written statement and afidavit before the court, which unfortunately he disowned. The 2nd defendant urges the court to find that the plaintifi falsely obtained a confirmation of grant as the sole beneficiary of the estate. 66. On lifting the caution, the 2nd defendant submits that the green card before the court shows that the 2nd defendant was not the only one who had lodged a caution against the title given entry No. 4 dated 19/11/2004, by one of the children of the deceased. Therefore, the 2nd defendant submits that he filed the second caution to ensure that the plaintifi’s siblings' interests were protected, and therefore it is for the court to decide the matter concerning other siblings of the deceased before the caution can be lifted, otherwise he had exercised his duties as per the instructions of the late Sarah Atambo Esiron. 67. The 2nd defendant urged the court to find the case as overtaken by efiuxion of time, find the boundary was in existence for about 10 years before the RIM was drawn and registered, decline to interrupt the status quo on the ground, and dismiss the suit with costs. 68. The issues calling for my determination are: 1. If the plaintifi has established trespass, encroachment, grabbing, and illegal takeover of the suit property. 2. If the 2nd defendant was justified in entering, occupying, using, and developing the 1.16 acres of the suit property. 3. If the 2nd defendant was justified in admitting registering and sustaining the caution over L.R. No. Kitale Municipality Block 16/Kaura Wa Bechau/74. 4. If the plaintifi is entitled to the reliefs sought. 5. What is the order as to costs? 69. Trespass to land is governed by Section 3(1) of the Trespass Act Cap 294. It is an intrusion by a person into a land of another who is in possession and ownership without his authority, consent, or justification. Once proved, trespass is actionable per se, without proof of damages, as held in Park Towers Ltd -vs- Mithamo (supra). 70. In Azzuri Ltd -vs- Pink Properties Ltd Civil Appeal No. 93 of 2017, the claim was that the defendant had erected permanent constructions on the appellant’s suit land exceeding the legal boundaries, thereby constituting trespass. 71. At the trial, the court found that what was disputed was a general boundary over which the court had no jurisdiction. The Court of Appeal agreed with the trial court. It was observed that the appellant had not raised the issue of encroachment with the Land Registrar or the neighbours, for it to be fixed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 9

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72. In Kenya Power and Lighting Company -vs- Ringera & Others [2022] KECA 104 [KLR], the court cited M’Mukunya -vs- M’Mbijiwe [1984] KLR 161, where the court cited with approval Municipal Council of Eldoret -vs- Titus Gatitu Njau [2020] eKLR, that trespass is a violation of the right of possession and a plaintifi must prove that he has the right to immediate and exclusive possession of the land, which is difierent from ownership. 73. In this suit, the plaintifi takes the view that the only land that her late mother sold to the 2nd defendant was 2 acres, which was lawfully transferred and registered under his name and no more, as per the title deed held in the name of the late mother and the 2nd defendant. 74. The plaintifi denies that the 2nd defendant was entitled to the 1.16 acres of land, now established by the surveyor’s report as under his occupation. D. Exhibit No. (3) was issued on 6/2/1998 for 0.8093 Ha under RIM 1(75/3/20). It is the same RIM that is refiected in P. Exhibit No. (1), for title No. Kitale Municipality Block 16/Kaura Wa Bechau/74, measuring 3.175 Ha. 75. The plaintifi’s title deed was the first to be issued on 22/4/1996, unlike that of the 2nd defendant. P. Exhibit No. (2) is the sale agreement produced as D. Exhibit No. (3). P. Exhibit No. (3) was written by the deceased to the 1st defendant, complaining about encroachment on 11/11/1998. This was almost nine months after the 2nd defendant obtained his title deed. The initial complaint was followed by P. Exhibits No. (6), (7), (8), and (9) dated 13/10/2026 and 8/11/2021, in relation to the caution. 76. After the 1st and 2nd defendants took no action, the plaintifi had no option but to move to court and obtain a court order dated 24/11/2022, produced as P. Exhibit No. (12), out of which the surveyor visited the land and prepared P. Exhibit No. (11) showing the extent of the encroachment. 77. From the plaintifi’s further exhibits, it appears that she obtained a grant of letters of administration on 16/3/2021 and later a confirmation of grant on 21/10/2021, produced as P. Exhibits No. (13) and (14), as the sole heir and legal administrator of Title No. Kitale Municipality Block 16/Kaura Wa Bechau/74. Therefore, by the time the P. Exhibits No. (7), (8), (9), and (10) were written to the 1st and 2nd defendants; the plaintifi had already been appointed and confirmed as the legal representative and the sole beneficiary of the suit property. 78. The plaintifi, in view of the restriction against the title deed, has not been able to transfer the land to her name. In P. Exhibit No. (15), the application dated 17/11/2022 was withdrawn, and the estate was decreed and remaining in the name of the plaintifi. From the copy of records listed in the list of documents to the 1st defendant, entry No. (5) is a caution recorded against the title by the 2nd defendant on 4/6/2020. It remains the sole restriction on the title to date, after the caution registered on 1/11/2004 was withdrawn on 1/11/2016, pursuant to entry No. (6). 79. The 2nd defendant in the caution claims the purchaser’s interests. To sustain his statement of defence, the 2nd defendant relies on D. Exhibits No. (4), (5), 5(b), (6), (7), (8), and (9). In the letter dated 15/12/2009, the 2nd defendant states that the land alleged to be under trespass was bought on 15/10/1990. In the letter dated 11/5/2010 to the 1st defendant, the 2nd defendant states that he had bought the land from the deceased. 80. Courts do not rewrite contracts between parties, but enforce them unless vitiated by illegality, fraud, or misrepresentation. See National Bank of Kenya Ltd -vs- Pipeplastic Samkolit (K) Ltd & another [2001] eKLR. The law of the Contract Act, Cap 23, was amended with efiect from 2003. 81. Section 3(3) of the Act provides that a contract on the disposition of an interest in land must be in writing. See Peter Mbiri Michuki -vs- Samuel Mugo Michuki [2014] KECA 342 [KLR]. It is the 2nd https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 10

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defendant who claims the purchaser’s rights. The same claim is the one that has caused the existence of the restriction. The burden is on he who alleges the existence of certain facts to prove them under Sections 107-112 of the Evidence Act, 82. The 2nd defendant relies on D. Exhibit No. (7). The sale agreement does not indicate the parcel number and its locality on the ground. It speaks to one acre of land and not more than that. D. Exhibit No. 2(a)-(g) do not indicate the parcel numbers and the issuer of the receipts as the deceased mother to the plaintifi. The 2nd defendant has not produced any forensic document examiner report to show that the maker of the receipts or the recipient therein was the plaintifi’s deceased mother, who appended her signature or thumbprint thereon. The said receipts do not amount to a sale agreement as envisaged by Section 3(3) of the Law of Contract Act and Section 38 of the Land Act. 83. The late Sarah Atambo Esiron passed on, on 31/7/2004. Between 1990 and 2004, there is no evidence that the 2nd defendant regularized any transfer of the alleged extra acres of land measuring 1.16 acres, before the registered owner passed on. 84. Between 2004 and the filing of this suit, there is no evidence that the 2nd defendant sought from the plaintifi to have the transfer efiected. D. Exhibit No. (4) is not a transfer form. There is no evidence that the 2nd defendant prepared an application for land control board consent, booked the board for both subdivision and transfer, to have the 1.16 acres of land transferred to his name. 85. Indeed, after the plaintifi obtained a confirmed grant in 2021, there is no evidence that the 2nd defendant sought to have the land under his occupation formally transferred and registered under his name. D. Exhibit No. (7) and (9) do not speak to any such demands for a formal transfer at all. The 2nd defendant bought the extra 1.16 acres from the deceased before 1998, as alleged in paragraphs (5), (6), and (7) of the statement of defence dated 26/7/2022. It defeats logic why he obtained a title deed for parcel No. 75, which is less in acreage, and thereafter did not demand from the deceased before 2004 for the transfer of the remainder of the acreage. 86. In the letters dated 11/11/1998, 13/10/2016, and 2/11/2021 produced before this court, the deceased and the plaintifi have been emphatic that the 2nd defendant is encroaching on the suit land. 87. In all the 2nd defendant’s letter produced before this court, there is no mention of the exact sale agreement terms and conditions thereof, consideration, dates of payments of the consideration, and timelines which the two parties to the sale agreement(s) in relation to the 1.16 acres of land were executed, signed, and completed. The letters written by the 2nd defendant are not consistent with D. Exhibit No. 2(a)-(g). 88. Further, and more importantly, there is no indication in the 2nd defendant’s pleadings and his testimony when he sought and obtained the vendor(s) consent authority or approval to take vacant possession of the 1.16 acres. The 2nd defendant, in his defence, has not sought specific performance of the sale agreements he alludes to. Instead, he asks the court to find the plaintifi lacking locus standi, despite D. Exhibit No. (14) and (15), 89. In paragraph 14 of the defence, the 2nd defendant pleads that the boundaries between parcel Nos. Kitale Municipality Block 16/Kaura Wa Bechau/74 and 75 were demarcated on 15/10/1990, over 32 years ago, and title deed issued on 22/4/1996 and 6/2/1998, hence the plaintifi’s suit is time-barred. It is the 2nd defendant who is alleging entry into the suit property on account of a sale agreement. If his sale agreements were made in 1994, then the claim for the land out of a contract expired after 6 years as per Section 4(1) Cap 22. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 11

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90. On the other hand, the plaintifi's cause of action is based on trespass, which has continued from 1998 to the present. In Eliud Njoroge Gachiri -vs- Stephen Kamau Nganga [2018] eKLR, a case of continuing trespass was said to consist of a series of acts done on consecutive days that are of the same nature and are renewed or continued from day to day, making an aggregate indivisible harm. See also Muthiora vs- Marion Muthama Kiara [2022] KECA 28 [KLR]. In Gladys Koskey -vs- Benjamin Mutai [2017] eKLR, the court found the preliminary objection not merited or substantiated during the hearing. 91. Coming to the lodging, registration, and sustenance of the caution since 2010, a caution is a legal notice registered against a title deed. The law allows a Land Registrar to register a caution for anyone with an equitable or legal interest over the land. A caution typically forbids any new dealing on the land without first notifying the cautioner. It gives a party a chance to protect the alleged interest in the land. 92. A caution can be withdrawn voluntarily or where the registered owner applies for the removal. The Land Registrar may hold a hearing if the cautioner objects. The plaintifi has termed the acts of the 1st and 2nd defendants as illegal and unjustified. The plaintifi has tendered evidence of letters that she wrote seeking the lifting of the caution under Section 71(3) and 73(1) of the Land Registration Act. The onus was on the 2nd defendant to justify its existence or sustenance before the 1st defendant. See Maria Ngangi Gwako -vs- Charles Mwenzi Ngangi [2014] eKLR. 93. In Simon Kimemia Muthondu -vs- Moses Mugo Maringa [2017] eKLR, the court said in considering an application for removal of a caution, the court looks into the circumstances, and the justification for which the caution was lodged, what interests the person lodging the caution has on the land and what prejudice will be caused to the other party, if the caution is lifted. Section 75 of the Land Registration Act provides that a person who lodges or maintains a caution wrongfully or without unjustifiable cause may be liable for damage. 94. In Zablon Kamau Nyoro (Suing as the legal representative of the estate of John Nyoro Ngigi) -vs- Lason Mayodi Ombisa & 2 others [2019] KEELC 133 (KLR), the court cited Ahmed Ibrahim Suleiman & Another -vs- Noor Khamisi Surur [2013] eKLR, that a caution acts as a stopgap measure to enable the cautioner or caveatee to initiate an action to establish his or her interest. 95. Three ways to remove a caution include voluntary withdrawal, a court order, and by the Land Registrar. See Joseph Kibowen Chemjor -vs- Willian C. Kisera [2012] eKLR. In Peter Kagunza Adaji -vs- Sikukuu Maritim Maiyo & Another [2017] eKLR, the court found the caution improper, illegal, and unjustified for the 2nd defendant lacked the capacity to impose one. 96. The 2nd defendant, in my view, now and as at the time of the lodging of the caution, has been unable to justify the basis. I find the caution was maliciously registered and sustained. I say so because the 2nd defendant, until he was sued, had not made any efiorts to advance his claim either against the deceased before the caution, or soon thereafter, until he was sued in 2021, he had not made any claim for the suit property. 97. The next issue is whether the plaintifi is entitled to general damages for trespass and encroachment. Trespass is actionable per se as held in Park Towers -vs- Mithamo (supra). In Obongo -vs- Municipal Council of Kisumu [1971] EA 91, the court said that once the plaintifi proved ownership and encroachment, the burden shifted to the defendant to justify the trespass. 98. The plaintifi has testified that with efiect from 1998, the 2nd defendant has not only been on the suit property, but also has used the caution to prevent her use, occupation, and possession of the suit property without justification. The plaintifi, as a registered owner, has a right under Article 40 of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 12

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Constitution. The denial of the enjoyment of those rights from 1998 to the present has not been denied by the defendant. 99. The caution still exists on the title register. The plaintifi is unable to efiect any dealings on the title even after she acquired a confirmation of grant in 2021. The same case applies to entry into and use of the suit property. So, the plaintifi has sufiered both ways courtesy of the 2nd defendant. 100. A permanent injunction is granted upon the merits of the case after the rights of the parties are determined. It is granted in perpetuity to prevent breach of or commission of acts by the defendant. See Kenya Power & Lighting Co. Limited -vs- Sherifi Molana Habib [2018] eKLR. 101. A mandatory injunction, on the other hand, is granted as held in Kenya Breweries Limited -vsWashington Okeyo (2002) 1 EA 109, where a defendant attempts to steal a match from the plaintifi. 102. In this suit, there is no doubt that the plaintifi has been subjected to sufiering loss and damage by the 2nd defendant. I think the plaintifi is entitled to the reliefs sought. I proceed to enter judgment as follows. That: 103. a. The illegal encroachment, takeover, grabbing, and boundary walls and a fence, as erected on more hectares of title No. Kitale Municipality Block 16/Kaura Wa Bechau/74 is illegal and unlawful. b. The encroached and or grabbed land of more acres on the suit property belongs to the estate of the deceased. c. An order is hereby issued compelling the 1st defendant to rectify the register of any entry invalidating the purported caution on the title deed to the suit property placed on the register by the 2nd defendant on 4/6/2010. d. Permanent injunction restraining the 2nd defendant, his agents, servants, or assignees; (i), from interfering with the plaintifi’s quiet possession, use, occupation, and enjoyment of the suit property; (ii), from trespassing, or in any way dealing with the suit property, and; (iii) an order compelling them to vacate the suit property, failure to which they be forcefully evicted from title No. Kitale Municipality Block 16/Kaura Wa Bechau/74. e. General and exemplary damages at Kshs.2,000,000/=, as compensation for the trespass and the illegal activities thereon, with efiect from 4/6/2004 to date. f. Order that the OCPD Kitale and DCIO Kiminini ensure compliance with the orders granted of both permanent injunction and eviction in line with the law, should the 2nd defendant refuse to vacate the land voluntarily. g. Costs of the suit to the plaintifi are to be met by the 2nd defendant. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 25TH DAY OF FEBRUARY 2026. In the presence of: Court Assistant - Dennis Mr. Kaikai for the plaintifi Nyakundi for the defendant present https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 13

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HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1203/eng@2026-02-25 14

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