https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3513

Kantim (Suing as the Next of Kin and Personal Representative of the Estate of the Late Ntopia Noonkuta Masitoi) v Kiu (Sued as the Next of Kin and Personal Representative of the Estate of Daniel Talengo Kiptunen) (Environment and Land Case 2 of 2021) [2026] KEELC 3513 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3513 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Case 2 of 2021 MN Mwanyale, J June 11, 2026 Between Hellen Nashipae Kantim (Suing as the Next of Kin and Personal Representative of the Estate of the Late Ntopia Noonkuta Masitoi) Plaintiff and Naserian Josephine Kiu (Sued as the Next of Kin and Personal Representative of the Estate of Daniel Talengo Kiptunen) Defendant Judgment 1.The Plaintiff Hellen Nashipae Kiantiru suing as the personal Representative of Estate of the Late Ntopia Noonkula Masitoi vide her Amended Plaint Amended on 9th November 2022 sued Josephine Naserian Kiu the Personal Representative of the Estate of Daniel Talengo Kiptunen and sought the reliefs as against her, in terms of; -a.A declaration that the Estate of the deceased Ntopia Noonkuta Masitoi is the rightful owner and entitled to exclusive quiet and peaceful enjoyment of all that parcel of land known as Transmara/Ololchani/300.b.The subcounty Land Registrar, Transmara/West/East be obliged to rectify his records in respect of title No. Transmara/Ololchani/300 and register it in the name of the deceased NTOPIA NOONKUTA MASITOI and issue title in the said name.c.An eviction order be issued to remove the Defendant by himself, his agents and servants from the deceased’s parcel of land known as parcel NO. Transmara/Ololchani/300 to be executed through a court bailiff with the help of the OCPD Transmara and OCS Kilgoris police station.d.A permanent order of injunction restraining the Defendant, his servants, licencees, agents and/other person acting on his behalf from howsoever trespassing, occupying or harassing or interfering with the ownership, quiet possession and occupation by the Estate beneficiaries and Plaintiff of all that parcel known as Transmara/Ololchani/300.e.Special damages for trespass and destruction of vegetation.f.Costs of the suit inclusive costs of eviction exercise and further or other relief deemed just by this court. Plaintiff’s case and evidence 2.It is averred by the Plaintiff that; -i.The deceased Ntopia Noonkuta Masitoi, was a Bonafide member of Ololchani Adjudication Section/Group Ranch and upon demarcation of the Group Ranch the deceased was allocated parcel No. 109 measuring approximately 40 acres which was later subdivided and registered as Transmara/Ololchani/109 and Transmara/Ololchani/300 respectively, was shown the boundaries thereof and took possession. She entered into an Agreement for sale in 1984 during the demarcation stage and sold to the Defendants about 10 acres of the said portion in Ololchani/109, a fact that he acknowledged vide her letter dated 12th of May 2008 to the District Land and Settlement officer.ii.That the Defendant fraudulently and falsely caused to be registered in his name the residue of parcel No. Ololchani 109 so as to create parcel No. Transmara/Ololchani/300 from the original parcel No. Ololchani 109; which action the deceased had protested and objected to the relevant Government officials, who summoned the Defendant, but which summons were ignored by the Defendant 3.The Plaintiff pleaded particulars of interference as against the Defendant together with particulars of misrepresentation and irregularities. 4.The Plaintiff pleaded particulars of damage to be deprivation of peaceful and quiet enjoyment of their property interalia, and sought for the reliefs set out at paragraph 1 of this judgment. 5.The matter proceeded partly before E. Washe J, who took evidence of 4 witnesses including the Plaintiff and upon his transfer parties took directions to proceed from where it had reached under the provisions of order 18 Rule 8 of the Civil Procedure Rules. Plaintiff’s Evidence 6.It was the Plaintiff’s evidence as P.W.1 while adopting her witness statement as part of her evidence in chief, that; -i.The suit property belonged to her mother the Late Ntopia Nooonkuta Masitoi.ii.The original property was 50 acres but the4 Plaintiff’s mother sold 10 acres the Defendant took possession later on and fenced 40 acres, which included 30 acres for the Plaintiff’s mother. The Plaintiff’s mother had died before the matter was resolve.iii.That property that the Defendant fenced was called Transmara/Ololchani/300, which is the same as Transmara/Ololchani/109. At the time of purchase the property had not been subdivided. In support of her case the Plaintiff produced the following document, that had been listed in her list of documentsDocument 1 – a copy of letter Ad Litem issued on 17.09.2020.Document 2 – copy of official search of Transmara/Ololchani/109.Document 3 – copy of official search of Transmara/Ololchani/300.Document 4 – letter dated 27.11.2000 to Principal Land Adjudication officer.Document 5 – letter to Adjudication officer from Plaintiff dated 12.05.2008.Document 6 – copy of death certificate dated 27.03.2018.Document 7– letter to NLC form the Plaintiff. 7.The documents No. 6 to 10 on the Plaintiff’s list of documents were marked for identification by the Plaintiff and were to be produced by other witnesses, but she produced documents 1, 2, 3, 9, 10 as her exhibits. 8.In cross-examination, witness stated that she had no documents to show that plot No. 109 was adjudicated to her mother. The witness on being shown the adjudication record, she stated that plot number Ololchani/109 was recorded in the name of the Defendant and measured 4.30 hectares (10 acres). 9.The witness indicated that her interest was in Ololchani 109. She confirmed that the Defendant had built on the suit land. Re-examination 10.On re-examination the witness indicated that she was claiming parcel No. Ololchani/109, because Ololchani 300 was super imposed on Ololchani 109. The witness stated that she did not know how the Defendant was allocated 109 yet her mother was on the ground. She stated that Defendant took possession of 109 by virtue of a sale. 11.Tuno Nkodedia, adopted his witness statement as part of his evidence in chief, it was his further testimony that he knew the deceased plaintiff who lived near the Secondary school in Lepolos. He stated that he knew the deceased defendant who initially lived in Oldonyo Nkopit which was not in Ololchani Adjudication Section. The deceased defendant had purchased 10 acres from the deceased plaintiff. The deceased plaintiff had about 55-60 acres. He stated that Plot No. 109 belonged to the deceased plaintiff as the deceased defendant was from a different area and was not entitled to be adjudicated land in Ololchani. The witness stated that he was a village elder and a member of the border committee of the adjudication committee. 12.On cross-examination, the witness indicated that he did not remember the parcel number but knew its location. He stated that he was a border committee and village elder but not a member of the adjudication committee. He did not remember the acreage of plot No. 109. He did not have list of members of Ololchani Adjudication section, and did not know how the deceased defendant got his title. He did not remember whether the deceased plaintiff had filed any objections, but the deceased defendant fenced all the suit property. He denied signing any witness statement before Mr. Kamwaro Advocate. 13.On re-examination, the witness stated that the border committee had the task to place demarcation markings as shown by the occupants. 14.Sawani Ole Ngoisa also testified, and adopted his witness statement as part of his evidence in chief. The witness stated that the deceased plaintiff had been allocated the suit property known as Plot No. 109 and he had hitherto sold 10 acres to the deceased defendant, she was unwell and relocated to another place, and at adjudication time in the absent of the deceased plaintiff (Ntopia Masitoi) the deceased defendant (Daniel Talengo) was adjudicated the entire parcel, which he had fenced. 15.The deceased plaintiff had sold 10 acres to the deceased defendant but the 10 acres was not demarcated. The property was sold in his presence. The deceased plaintiff found that the deceased defendant had fenced all the property more than the 10 acres he had sold save for parcel sold to Ali Leshoo. 16.The witness moved out of the property after the Defendant fenced the entire parcel. 17.On cross-examination, the witness stated that the sale took place in 1988, and it was fenced in 1990, no objection proceedings were filed in respect of the suit property. 18.The witness stated that the defendants were living more than 30 years and that he had been allocated his own property by the committee. 19.On re-examination, the witness stated that the deceased plaintiff had sold 10 acres to the deceased defendant and 6 acres to Ali Leshoo 20.Esther Silangai Enole Ruka, testified, she adopted her witness statement as part of her evidence in chief, it was her further testimony, that the deceased plaintiff owned Transmara/Ololchani/109, where she lived together with the deceased plaintiff. The deceased defendant bought 10 acres, after which the deceased plaintiff went to live in another property, with her children but the time of adjudication the deceased defendant had fenced the entire property and the she and her husband (P.W.3) were forced out of the suit property. The witness stated that she was present during the sale, and the deceased defendant only purchased 10 acres. 21.On cross-examination, the witness stated that the office of Mr. Ole Kamwaro was in Narok, the witness stated that she did not know how to read but she could sign. The witness stated that her testimony related to Ololchani/109, where the deceased plaintiff had sold 10 acres to the deceased defendant. The purchase of the 10 acres was in 1984. The witness did not know how many parcels were in dispute, and was not aware how Transmara/Ololchani/300 was created, and how big it was. 22.On re-examination, the witness stated he did not know whether Ololchani/300 was within Ololchani/109 and whether the deceased plaintiff had visited the adjudication office to complain. 23.Mr. Joseph Kwanye an Assistant Conty Commissioner, Transmara West testified pursuant to summons dated 11.07.2024 so as to produce two letters dated 01.09.1993 and 28.10.1997. It was his evidence that the original of the said letters could not be traced in his office. The said letters were thus marked as P.W.1 MFI.5 and 9 respectively. 24.Mr. Justus Levu, a Land Adjudication and Settlement officer testified; pursuant to summons dated 11.07.2024, so as to produce a letter dated 13.11.1997. 25.The witness stated that he could not trace the said letter dated 13.11.1997 and was thus stood down. 26.Having stood down the two witnesses, they were recalled the Land Adjudication officer was thus recalled as P.W.6 and he testified and produced demarcation book of Ololchani 300 and Ololchani/109. 27.The demarcation book of Ololchani/300 was produced as P.Exhibit 14 while the demarcation book of Transmara/Ololchani/109 was produced as P.Exhibit 15. It was P.W.6 further testimony that the demarcation book of Transmara/Ololchani/109 was demarcated to Manyaro Nkoisa it had two cancellations, first entry Ropiani Masitoi which was changed to Christopher Masitoi, they were no remarks made pursuant to the cancellation. 28.In relation to Ololchani/300, the remarks shown were “see parcel No. 109” and they were no other remarks. 29.On letter dated 15.10.1997 addressed to Daniel Talengo signed by DLASO Mr. Ngetich but the original letter is missing from the file. 30.equally stated that the parcels numbers in an adjudication section were issued sequentially, if a number differed in the sequence the difference would be noted by the committee proceedings. 31.On cross-examination, the witness indicated that the Adjudication Record of parcel number 109, revealed an objection filed by Daniel Talengo which allowed the objection and transfer of whole parcel to Daniel Talengo; acreage of 4.30 Ha. On re-examination 32.The witness stated that the objection was raised within 60 days of publishing the adjudication register. Adjudication register was finalised in 1995. 33.With regard to parcel No.109 it was demarcated to Manyaro Nkoisa but subjected to an objection and name of Daniel Talengo recorded in the Adjudication recorded. 34.was the Deputy County Commissioner Transmara West, who appeared in court pursuant to court summons, the witness could not confirm whether the letter (PMFI.4) was an original, but the copy he had was certified. The court allowed the letter dated 22.11.2000 to be produced as P.Exhibit 4 having being earlier marked for identification. 35.On cross-examination, the witness stated that he did not have copies for Agreements for sale and that P.Exhibit 4 was not copied to Daniel Talengo. 36.After the testimony of the plaintiff’s six witnesses the plaintiff’s case was closed. Defence case 37.The Defence only called 1 witness the Defendant, Naserian Josephine Kiu, the widow and Administrator of the Estate of Daniel Talengo, she produced a copy of the Grant issued in succession cause No. E017/2023 Milimani on 5th February 2024; as P.Exhibit 1 as well as an Ad Litem issued on 27.07.2021 in Kilgoris Misc. Succession Cause E021/2021. The witness adopted her witness statement dated 23.09.2025 as part of her evidence in chief. 38.It was her evidence that Transmara/Ololchani/300 was adjudicated to her late husband and it measures 9.77 Ha, the property was not subject of any objection filed. She also produced a copy of a green card of suit property showing that the acreage tallied with adjudication record as D.Exhibit 3. 39.She produced a copy of the title for suit property in name of Daniel Talengo (D.Exhibit 4) as well as a certificate of official search as D.Exhibit 5. She stated that she had lived on suit property for 45 years even before adjudication. 40.In respect of Transmara/Ololchani/109, she stated that as per the Adjudication record the acreage was 4.30 Hectares, that Daniel Talengo had filed an objection which had been allowed and the whole parcel transferred to him. No appeal was preferred from the objection proceedings. 41.She produced a copy of the Adjudication Record for Transmara/Ololchani/109 as D.Exhibit 6, green card as D.Exhibit 7 and title deed thereof as D.Exhibit 8, and a search as D.Exhibit 8. 42.She stated that Transmara/Ololchani/109 was the 10 acres which she admits to have been purchased from the deceased plaintiff and that parcel Nos. 109 and 300 border each other and they used the said parcels as one. The witness stated that she had not trespassed to the plaintiff’s property. 43.On cross-examination, the witness stated that at the time the suit was filed her late husband was alive. That they had never been a previous suit involving the suit parcels 109 and 300, whose titles were issued on the same date on 1st November 2010 and suit filed on 12.10.2020. 44.The witness stated that Transmara/Ololchani 300 was not super imposed on Ololchani 109. That she was present during the purchase of Ololchani/109, which was originally allocated to Masitoi. Parcel 300, borders parcel 109 on the demarcation book. At time of demarcation the defendant was living in the suit parcel. On re-examination 45.The witness stated that there was no dispute of purchase of the 10 acres, and that during the demarcation of Ololchani, she was present living in Ololchani where she has lived for 45 years. 46.That her late husband had been a member of Ololchani adjudication section. That there was no super imposition of parcels 300 and 109 as from the sketch map the two parcels border each other. 47.With the testimony of the D.W.1 the Defence case was closed. 48.The court directed filing of submissions. The plaintiff delayed in filing their submissions, the court had initially indicated that it would not consider the said submissions but although filed late, the said submissions were filed before the Defendant’s submissions and in the interest of justice the court has considered the said submissions. Appellant’s Submissions 49.The plaintiff has framed and submitted on 3 issues. 50.On issue No. 1, on whether Transmara/Ololchani/300 was part of parcel No. 109 within Ololchani Adjudication Section. The plaintiff submits relying on the evidence of the Land Adjudication officer that land parcels are given numbers sequentially from the 1st to the last; and that parcel number 300 could not be adjacent to 109 as the numbers do not follow each other sequentially. The plaintiff equally submits relying on the testimony of 3 witnesses who testified that the deceased plaintiff had fenced more than 10 acres. 51.The plaintiff submit that the remark see parcel No. 9 made against the remarks on parcel 300, means that the said two parcels were related. 52.The plaintiff thus submits that parcel No. 109 could not have been adjacent to parcel 300. Hence the plaintiff submits that parcel No. 300 was part of parcel 109. 53.On issue number 2, the plaintiff submits that the defendant did not acquire the parcel 300 rightfully due to absence of an Agreement for sale as required under section 3(3) of the law of contract Act. 54.The plaintiff submits that the acquisition of the title by the defendant was not lawful, and that the court should not aid a man who premises his ownership claims upon an immoral or illegal act. 55.The plaintiff submits that she has made out a case and is entitled to the reliefs sought and has cited in support of her case, the decision in Daudi Kiptugen v Commissioner of Lands and 4 Others (2015) eKLR and Mwangi James Njehia v Janetta Wanjiku Mwangi and Another (2021) eKLR and urges the court to allow the plaintiff’s suit. Defendant’s Submissions 56.The Defendant framed and submitted on 4 issues for determination. 57.On issue No. 1, the Defendant submits that the suit is time barred by virtue of section 7 of the Limitation of Actions Act; in that the right to recover the property expired after 12 years from when the date on which the right of action accrued. 58.The Defendant submits that the discovery of fraud does not extend the Limitation period. 59.On issue number 2, the Defendant submits that the Plaintiff did not prove the fraudulent acquisition and registration of Transmara/Ololchani/300. The Defendant submits that no evidence was led to the fraudulent acquisition of the suit property. 60.On issue No. 3, the Defendant submits that the title for the Transmara/Ololchani/109 and Transmara/Ololchani/300 are both indefeasible, having been acquired procedurally and the Defendant having lived thereon for about 45 years, and has cited the case of Joseph N.K Arap Ngok v Moijo Ole Keiwua and Others(1997) eKLR as well as Willy Kipsongok Morogo v Albert K. Morogo (2017) eKLR. 61.Lastly, the Defendant submits that the plaintiff claim ought to be dismissed with costs. 62.Before framing issues for determination, a number of issues were settled during the hearing, and the court makes note of same as follows; - 63.At paragraph 5 of the Amended Plaint the plaintiff pleaded that the deceased Ntopia Noonkuta Masitoi had in the year 1984 sold a portion of Ololchani/109 measuring about 10 acres to the Defendant Daniel Talengo Kiptunen. 64.In the statement of Defence dated 3rd of November 2020, the Defendant vide paragraph 5 thereof, admitted to the sale and purchase of the 10 acres in No. 109 which they pleaded was the whole parcel as it measured 4.30 Ha and it was transferred to the Defendant. 65.Equally D.W.1 in her evidence confirmed that her husband the late Daniel Talengo had purchased 10 acres from the deceased plaintiff as captured at paragraph 45 of this Judgment. 66.Consequently, the issue of sale by the deceased plaintiff of 10 acres and purchase by the deceased Defendant is not in dispute and the court shall not consider the same as an issue in dispute. 67.The Defendant submitted that the suit was time barred under section 7 of the Limitation of Actions Act. The court finds that this issue was specifically raised by the Defendant vide the Notice of Preliminary Objection dated 10th April 2023. 68.the issue was canvassed before Washe J, vide written submissions and a Ruling was delivered on 18th September 2023, at paragraph 6 to 11of the Ruling the Honourable Judge dealt with the issue, which he held the suit was not time barred and dismissed the said Preliminary Objections with costs. That Ruling was delivered in the presence of Mr. Kamwaro appearing for Respondents and Mr. Shira for the Applicant, and it is thus strange that Mr. Shira would revive the said issue in his submissions. 69.This issue having been determined previously is now settled and it shall not form part of the issues for determination, in this judgment. Issues for Determination 70.Having analysed the pleadings, the evidence tendered by the parties as well as the submissions of the parties, and considered the applicable law, the court frames the following as issues for determination,i.Whether or not the plaintiff’s case is merited and in determining this issue, the court shall consider the following sub issues; -a.Whether or not Transmara/Ololchani/109 and Transmara/Ololchani/300 were initially one parcel, and whether it belonged to Ntopia Noonkuta Masitoi?b.If so, how many acres was the original parcel.ii.Whether the Defendant’s defence should be upheld?iii.What reliefs ought to issue?iv.Who bears the costs of the suit. Analysis and Determination 71.The plaintiff sued as the Administrator Ad Litem of the Estate of Ntopia Noonkuta Masitoi, pursuant to Grant of letters of Administration issued to her on 17th September 2020 in Narok CM Succession Cause No. 31 of 2020, she produced a copy of the letters of Grant Ad Litem as P.Exhibit 1. 72.The evidence of P.W.2 was that the deceased Ntopia lived in the Ololchani Adjudication section and that she sold the deceased Defendant (Daniel Talengo) a portion of about 10 acres with her property and that originally Daniel Talengo come from Oldonyo Nkopit which was not within Ololchani Adjudication section. P.W.2 was a village elder and a member of the adjudication section, and that the deceased defendant having come from a different area was not entitled to be adjudicated land in Ololchani. The witness did not know the parcel number belonging to the plaintiff as well as the acreage. In cross-examination, the witness (P.W.2) stated that the deceased defendant fenced the entire land. 73.and P.W.4 both stated that they were present when the sale of the 10 acres to the deceased Defendant was done, that the said 10 acres was not subdivided but that the Deceased Defendant sold the whole plot No. 109 Ololchani, forcing P.W.3 and P.W.4 to move out. 74.That after the sale of the 10 acres the deceased plaintiff went to live with her children, and deceased defendant then fenced the whole parcel and the adjudication happened in the intervening period and upon being adjudicated the whole portion became uncooperative whenever he was summoned. 75.From the testimony of the above witnesses (P.W.2, P.W.3 and P.W4) and noting that the sale of 10 acres was undisputed, the court finds that the deceased defendant after buying the 10 acres fenced the whole property forcing P.W.3 and P.W.4 out of Ololchani/109. The court equally finds that as the deceased defendant originally came from Oldonyo Nkopit, a different area from the Ololchani adjudication section, he did not have land in the Ololchani adjudication section to enable him get adjudicated on during the adjudication other than the 10 acres in the parcel that he had bought but fenced the whole parcel. 76.the Land Adjudication and Settlement officer in Transmara, testified and produced copies of the demarcation record for Transmara/Ololchani/109 and Transmara/Ololchani/300. His testimony lends weight to the plaintiff’s claim. He stated that the parcels were allocated numbers sequentially, hence if a parcel number differs the committee proceedings would show. 77.It was his testimony, corroborated by the P.Exhibit 14 and P.Exhibit 15 that the two parcels Transmara/Ololchani/109 and Transmara/Ololchani/300 were neighbouring each other but were different sequentially. That initially Transmara/Ololchani/109 was demarcated to Manyara Nkoisa, them had two cancellations, first entry to Ntopia Masitoi and changed to Chritstopher Masitoi, with no remarks. 78.He stated that during adjudication any transfers would be sent to the committee whose decision would appear on remarks section under parcel No. 109 there were no remarks, but under parcel 300 the remarks were “see parcel 109”. 79.The evidence of P.W.6 is crucial in that the remarks “see parcel No. 109” on the demarcation register of parcel 300, suggest that the two parcels must have been related, coupled with the fact that P.W.2, P.W.3 and P.W.4 all indicated that the deceased plaintiff fenced the entire parcel No. 109, the logical conclusion is that parcel 109 and 300 were one and the same parcel; and/or that parcel 300 was hived from parcel 109 for reasons that the said parcels though were neighbouring as confirmed by D.W.1, and the demarcation register, they were not following each other sequentially. 80.the DCC Transmara testified and produced P.Exhibit 4 a letter that he said emanated from his office, which letter had been copied to the deceased plaintiff the letter was titled “update on complaint on plot No. 109 Ololchani”. This exhibit had been identified by the Plaintiff. 81.The issue now remaining is how many acres was the original parcel No. Transmara/Ololchani/109. 82.The P.Exhibit 4, as well as the evidence of P.W.2, P.W.3 and P.W.4, put the acreage at about 40 acres. The said acreage cannot be ascertained to be 40 acres since some stated 50-60 as stated by the said witnesses. The acreage however must have been more than 10 acres, which was bought by the deceased defendant as well as Mr. Ali Leshoo who bought and settled on 6 acres. 83.Having found that the parcels No. 109 and 300 were related the original acreage must thus be deemed to have been more than the 10 acres (4.17) Ha. 84.This letter P.Exhibit 4 confirms that the plaintiff had lodged a complaint against the deceased defendant with respect to the fencing of about 40 acres contrary to the Agreement for sale, and for the failure on the part of Mr. Kiptunen the deceased defendant to honour summons by the Land Adjudication officer, which facts had been pleaded. 85.Given the totality of the evidence by P.W.2, P.W.3, P.W.5 and P.W.6 the same lends credence and supports the plaintiff’s claim that Transmara/Ololchani/109 and Transmara/Ololchani/300 were related. The defendant (D.W.1) herself stated that they used the property as one. The defence did not adduce any evidence to counter this testimony save for the production of the title deed and adjudication record. The acreage comprised in Transmara/Ololchani/109 and the acreage in and Transmara/Ololchani/300, which is said to have been 9.77 (hectares) thus; 4.17 Hectares and 9.77 Hectares respectively all total to about 13.94 hectares (or more), plus the 6 acres bought by Ali Leshoo which is not disputed and not part of the plaintiff’s claim. 86.Thus, in answer to issue number 1, and the sub issues thereunder, the court finds that Transmara/Ololchani/109 and Transmara/Ololchani/300 were related and in fact were one and the same parcel whereat there was a purchase by the deceased defendant from Ntopia Masitoi of 10 acres but the deceased defendant fenced the entire parcel which was adjudicated to him unlawfully, through conversion by the fence. 87.The defendant only relied on the adjudication record and the resultant titles, to defend her acquisition, of the suit property. 88.The adjudication record of Transmara/Ololchani/109 was filled in 2008, while the adjudication process was completed in 1987, and given the contents of P.Exhibit 4 the plaintiff had reported to the authorities that Mr. Daniel Talengo had fenced off the entire parcel of Transmara/Ololchani/109 , the court finds that the Defendant has not established proper and lawful acquisition of parcels Transmara/Ololchani/109 and Transmara/Ololchani/300 whose roots were challenged and holding the said titles could not establish the said roots as was observed in Munyu Maina v Hiram Gathitha Maina where the court held interalia, “We wish to state that when a registered proprietor’s title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership, it is this instrument that is in challenge and the registered owner must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be registered on the register…” 89.The court thus finds that the plaintiff claim, although appearing at a casual glance as far fetched, has actually been proven by the testimony of witnesses who testified to the required standard of proof, and the plaintiff has discharged the evidential burden under sections 107-109 of the Evidence Act; and that the defendants defence did not challenge the plaintiff’s suit and she called no evidence to challenge the evidence of the plaintiff and her defence does not hold, noting that the action of fencing the entire parcel, by the deceased defendant so as to be adjudicated as the beneficiary amounts to conversion hence an illegal act which cannot lead to the conclusion that a lawful parcel No. Transmara/Ololchani/300 existed independent of Ololchani/109 and as was stated in Mcfoy v United Africa Co. Ltd 1961 3ACC ER 1169 Where the court stated interalia “if an act is void, then it is in law a nullity, it is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to say there it will collapse”, the creation of parcel Ololchani 300 must thus fail. 90.Thus, the defendant defence cannot be upheld. 91.On the issue of what reliefs ought to issue. 92.Among the reliefs sought by the plaintiffs include an order of permanent injunction against the Defendant and in view of the admission of the sale and purchase of the 10 acres within Transmara/Ololchani/109 a granting of this relief would occasion hardship on the Defendant and hence whereas the court enters judgment for the plaintiff, the judgment is not entered in terms as prayed for in the Amended Plaint, but in terms as follows; -i.A declaration hereby issues that Transmara/Ololchani/300 forms part of Transmara/Ololchani/109, and belongs to the Estate of Ntopia Noonkuta Masitoi, represented by the plaintiff herein.ii.The sub county Surveyor Transmara West, East and South to amalgamate Transmara/Ololchani/300 together with Transmara/Ololchani/109.iii.The sub county Land Registrar Transmara West, East and South to rectify the register of Transmara/Ololchani/300, by cancellation of the said title and issue one title of the Amalgamated parcels and register the same in the name of the Plaintiff.iv.The plaintiff to cause a subdivision and transfer the 10 acres to the Defendant, in the said exercise of the subdivision regard will be given to the portion already occupied by the Defendant.v.The costs of the suit to be borne by each party. DATED AT KILGORIS THIS 11TH DAY OF JUNE 2026HON. M.N. MWANYALEJUDGEIn the presence ofCA – Sylvia/ClaraMr. Shira for the DefendantMr. Nanda for the PlaintiffPage 8 | 8