https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4351

Noari v Muchelule & 10 others (Environment and Land Case 64 of 2017) [2026] KEELC 4351 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEELC 4351 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case 64 of 2017 A Nyukuri, J July 8, 2026 Between Justine Olendo Noari Plaintiff and Zakayo Muchelule & 10 others & 10 others & 10 others Defendant Judgment 1.By a plaint dated 28th February, 2017, and amended on 29th November 2022, the plaintiff sought against the defendants the following orders;a.An order directing the Kakamega County Land Registrar and Surveyor to visist Land Parcel Nos. North Wanga/ Mayoni/1819, 1225, 1665, 2144 and 427 and ascertain the exact boundaries between the aforementioned parcels.b.An order for the District Surveyor and Land Registrar, Kakamega County to visit and ascertain the exact boundaries of land parcel No. North Wanga/Mayoni/1819 and the road of access leading thereto as per the original map.c.A permanent injunction restraining the defendants, their agents, servants, employees or anybody through them from trespassing, laying claim for or in any way interfering with the plaintiff’s land parcel No. North Wanga/ Mayoni/1819.d.Costs of this suite.Any other relief this Honourable court deems fit and just to grant. 2.The plaintiff averred that he was the registered proprietor of parcel No. North Wanga/Mayoni/1891 measuring 1.13 Ha. while the 1st to 4th defendants were the registered proprietor of parcel Nos. North Wanga/Mayoni/ 1225, 1665, 2144 and 1427 respectively and that the latter had encroached on the plaintiff’s parcel of land. That in 2014 the plaintiff had a protracted boundary dispute with the defendants and that efforts by the provincial administration to cause the Kakamega County Land Surveyor through the Kakamega County Land Registrar to visit the land and determine the boundaries of the parcels have been futile necessitating this suit. That the defendants have encroached on his land. 3.The 1st defendant filed defence on 25th May 2023. He denied the plaintiffs claim in its entirety. The 3rd defendant filed defence dated 11th October 2023 denying the plaintiffs claim in its entirety. The other defendants neither filed defences nor participated in this matter. 4.On 26th February 2018, the court ordered the District Registrar and surveyor to visit parcel No. North Wanga/Mayoni/1819 to establish the acreage and boundaries and file a report in 60 days. Following that order, the District Surveyor visited the suit property and made a report dated 3rd February 2019. Further that report, he stated that the said order could not be implemented. That parcel Nos. 1819, 1225, 1665, 1427 and 1829 are landlocked and that the map could not be amended to completion. 5.The District Surveyor further stated that Field check for parcel No. 1148(subdivision of 541) to establish the road of access since in the mutation created, there was no road of access. The other reason the order could not be implemented was because it affected parcel Nos. 1663, 1225, 2140, 2144, 1225, 1665, 1427, and 1820 which were not mentioned in the order. 6.Subsequently, the court issued another order on 18th February 2019 to the effect that the Land Registrar and surveyor to visit parcel Nos. North Wanga/Mayoni/1819, 1663, 1225, 2140, 2144, 1225, 1665, 1427 and 1829 to establish the acreage and boundaries thereof and file a report within the next 60 days. 7.Pursuant to the order of 18th February 2019, the District surveyor visited the said parcels and prepared a report dated 22nd July 2019 where she made findings that the physical occupation of the parties differs with what was drawn on the map; that there were physical boundaries (trees and fences); that there is no access road to parcel No. 1819; that there are buildings and parties live on their respective parcels. She also specified acreages for each parcel as follows; parcel No. 2141 – 0.06 Ha; parcel No. 2140 – 0.03 Ha; parcel No. 1663 – 0.09 Ha; parcel No. 1225 – 0.17 Ha; parcel No. 2144 – 0.07 Ha; parcel No. 2147 – 0.04 Ha; parcel No. 1665 – 0.11 Ha; parcel No. 1427 – 0.08 Ha; parcel No. 1820 – 0.07 Ha; and parcel No. 1819 – 0.87 Ha. She observed that some parcels have not been amended because some discrepancies were discovered during map amendment hence incomplete process and query on the map. She availed ground sketch and map sketch and recommended that since the map is not an authority on boundaries, a new mutation be drawn to correct the map and to represent the actual ground positions. 8.When this matter came up for hearing on 12th March 2025, the plaintiff informed court that the 4th defendant one Ishmael Washiswa was deceased having died before the suit was filed. The plaintiff merely sneaked in the 4th defendant’s widow and began serving her with pleadings without orders of substitution required under Order 24 of the Civil Procedure Rules. 9.The matter was heard by way of viva voce evidence. The plaintiff, the 1st defendant and 3rd defendant, each presented one witness. Plaintiff’s evidence 10.PW1 was Justine Olendo the plaintiff. He adopted his witness statement as his evidence in chief. He testified that his complaint was against the 1st to 4th defendants. That the rest of the defendants were mere spectators and are not close to him and that he does not even know some of them. His complaint was that the 1st to 4th defendants had destroyed the boundary of his land by uprooting the sisal boundary and that they built on his land instead of their respective parcels. He confirmed having sold a plot to the 3rd defendant, showed him his boundary and contended that the later was cultivating beyond his boundary and had uprooted the sisal boundary. 11.He produced the surveyor’s report mentioned hereinabove. He maintained that the acreage in the surveyor’s report differed with the acreage of his parcel as stated in his title deed. He also produced the title deed for parcel No. 1819 as P-Exhibit 2. He criticized the surveyor’s report and argued that the same was not properly done. He sought that the court orders the Land Registrar to visit the suit property and establish boundaries and acreages of his parcel using what he termed as the original map. 12.On cross examination, he stated that the 1st defendant destroyed the boundary between his land and DW1’s land. That the surveyor did not take measurements correctly. He conceded that he was the one who brought the surveyor who prepared the report. That the land originally belonged to his father the late John Ndari whose succession he had conducted. He confirmed that the 1st defendant purchased land from his brother called Joseph Musindalo. That the County Government had not opened a road near his land. That he did not know parcel No. 664. He confirmed selling land to the 2nd defendant measuring 100 feet by 100 feet. That marked the close of the plaintiff’s case. Defence Case 13.DW1 was Zakayo Muchelule. He adopted his statement dated 23rd May 2023 as his evidence in chief. His testimony was that he purchased his parcel from Joseph Musindalo in 1992 when the land was still registered in the vendor’s father’s name while still registered as parcel No. 541. That his plot measures 300 feet by 50 feet. That upon conclusion of succession proceedings, Joseph Musindalo gave him his title for land parcel No. 1225. 14.Further that in 2017, the plaintiff told him he wanted to bring a surveyor on the land and that the surveyor visited the land in 2019. That the surveyor confirmed boundaries. That the plaintiff argues that he needs a road of access but he cannot lawfully obtain it from the witness’ parcel. That the County Government placed a road inside his land and so he has no where to built his house. 15.On cross examination, he stated that he did not obtain a search certificate before purchase. He denied misleading the surveyor. 16.DW2 was Mohammed Juma. He adopted his affidavit evidence as his evidence in chief. His testimony was that he purchased land measuring 50 feet by 100 feet from the plaintiff. That it was the plaintiff who brought the surveyor on the land. That the plaintiff caused his land to be surveyed, granted him an access road and executed all necessary documents whereof he was issued with a title deed. He added that the mutation form had been filed and that the same was in regard to parcel No. 1664. 17.On cross examination, he stated that the plaintiff was the one who signed the mutation form. That he had purchased two different portions of land; one from the plaintiff and another from the plaintiff’s brother Joseph Musindalo, but is yet to obtain title in respect of the portion purchased from Joseph Musindalo. That marked the close of the defence case. 18.Parties filed submissions. On record are submissions filed by the plaintiff dated 25th November 2025 and those filed by the 1st and 3rd defendants dated 11th November 2025. Submissions. 19.The plaintiff submitted that the measurement of his parcel No. 1819 in his title is 1.13 Ha, while the measurements indicated in the surveyor’s report is 0.87 Ha. That the surveyor listed intruders into his land stating that they were his neighbours. He argued that the defences herein were mere denials and no documents were presented to support the defence case. That the plaintiff sold the 3rd defendant a plot No. 1427, but that the 3rd defendant owns two plots. That he produced the title deed, mutation, surveyors report and the chief’s letter in support of his claim. That his evidence was unchallenged and hence the orders sought ought to be granted. 20.The 2nd and 4th defendants submitted that they were not party to the subdivision done by the plaintiff and his brother which was done 30 years ago. Further that the issue of encroachment and creation of access road was supposed to be raised 30 years ago. They referred to section 45 of the Law of Succession Act and argued that property of a deceased person ought not be intermeddled with. Reliance was placed on the cases of Gitau & 2 Others v Wandai & 5 Others [1989] KLR 231 and John Kieti v Tabitha Nzivulu Kieti & Another (2000) KLR for the proposition that filing suits in regard to a deceased person’s estate is tantamount to intermeddling with the same. Analysis and determination. 21.The court has carefully considered the pleadings, evidence and rival submissions. The issue that arises for determination is whether the plaintiff deserves the orders sought. 22.In his amended plaint the plaintiff sought an order directing the Kakamega Land Registrar and surveyor to ascertain the acreage and boundaries of parcel Nos. North Wanga/Mayoni/1819, 1225, 1665, 2144 and 427. He also sought for an order compelling the Kakamega Land Registrar and surveyor to visit and ascertain the exact boundaries for his parcel No. 1819 and the road of access leading to that parcel as per the original map. Further that a permanent injunction be issued to restrain the defendants from trespassing or interfering with his parcel No. 1819. 23.In regard to the prayer for visiting the six parcels, the record shows that at the plaintiff’s instance, both the surveyor and land registrar visited the said properties, and established the acreage of each parcel pursuant to the order of 18th February 2019. They also gave the status of the parcels herein and stated that physical boundaries differed with what was on the map. Most importantly and relevant to the dispute herein, the mutation demonstrated that the plaintiff’s parcel No. 1819 had no access road, and that due to the discrepancies, the process of amending the map to show the parcels herein was incomplete. The District Surveyor recommended that a new mutation be drawn to correct the map. 24.The plaintiff produced the mutation. That mutation shows that his parcel No. 1819 was landlocked and had no access road. Therefore, the plaintiff and his family cannot run away from the recommendation made by the District Surveyor Kakamega, which required that a new mutation be drawn. A mutation with no access road to parcels created from a subdivision, which the plaintiff herein relies on is nothing but a proposal anchored on confusion, and which cannot be lawfully implemented. A proper mutation ought to provide access to every new parcel created after subdivision. 25.In this case, what the plaintiff is concerned with is his acreage. Suffice it to state that he should remember that upon subdivision, total acreage may certainly reduce due to creation of access roads. That means that since the process of creating the map in respect of the disputed property is incomplete, the mutation signed by the plaintiff herein cannot form the basis of ascertaining the plaintiff’s parcel’s position and acreage. Therefore, there is no lawful document from the Director of surveys, lawfully registered to show the boundaries of the plaintiff’s land and how much it is. The mere fact that acreage is indicated in the plaintiff’s title, when the survey process is incomplete, does not mean that the plaintiff’s parcel is exactly 1.13 Ha as stated in the title. 26.The plaintiff’s prayer for the surveyor and Land Registrar to visit the suit property having been granted by this court vide its order of 18th February 2019 and both offices having complied with the said order by visiting the suit properties and filing the report dated 22nd July 2019, that prayer is now spent. As there is no evidence of a valid map from the Director of surveys, the prayer for injunction is unsupported and is therefore declined. 27.In the premises, I find and hold that the plaintiff’s suit lacks merit and the same is hereby dismissed with costs to the 1st and 3rd defendants. 28.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 8TH DAY OF JULY 2026A. NYUKURIJUDGEIn the presence of;Plaintiff in person1st and 3rd defendants in personCourt Assistant- Delphine