https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3606

Kimilgo (Suing as the Administrator of the Estate of the Late Kimilgo Arap Kukuto) v Cherono (Sued as Administratrix of the Estate of the late Ezekiel Kibet Bor) (Environment and Land Case E019 of 2022) [2026] KEELC 3606 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3606 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Case E019 of 2022 LA Omollo, J June 11, 2026 Between Kipkoech Kimilgo (Suing as the Administrator of the Estate of the Late Kimilgo Arap Kukuto) Plaintiff and Annah Cherono (Sued as Administratrix of the Estate of the late Ezekiel Kibet Bor) Defendant Ruling 1.This ruling is in respect of the Plaintiff/Applicant’s Notice of Motion application dated 11th November, 2024 which application is seeking the following prayers;a.That this Honourable Court be pleased to order the District Land Registrar Kericho and District Land Surveyor Kericho to visit the suit parcel of land known as Kericho/Kapsuser/7498-7503 formerly Kericho/Kapsuser/439 and to file a report with proper sketches with GPS Coordinates communicating the following;1.The size of the parcel of land known as Kericho/Kapsuser/439.2.The current occupation, development and size of occupation of all the occupiers residing on Kericho/Kapsuser/439.3.The size of the parcels of land known as Kericho/Kapsuser/7498-7503 and their attendant occupation and development.4.A proposal on implementation of the Courts mediation agreement reached between the parties in respect to physical occupation and title to the said portion.b.That further to the above and upon filing of a proposal this Honourable Court be pleased to order the District Land Registrar Kericho and District Land Surveyor Kericho to visit the suit parcel of land known as Kericho/Kapsuser/7498-7503 formerly Kericho/Kapsuser/439 for purposes of establishment and reestablishment of any boundaries emanating from the exercise.c.That costs of this application be provided for. 2.The application is based on the grounds on its face and the supporting affidavit of Kipkoech Milgo, the Plaintiff/Applicant that is sworn on 17th November, 2024. Factual Background. 3.The Plaintiff/Applicant commenced the present proceedings vide the Plaint dated 30th November, 2022 where he seeks the following prayers;a.An order do issue declaring the Plaintiff herein as the lawful and sole beneficiary of a parcel of land measuring 5 acres to be hived of (sic) from what was known as Kericho/Kapsuser/439 as well as its resultant subdivision by virtue of adverse possession and a vesting order do issue thereto.b.An order do issue declaring that the Plaintiff has a beneficiary interest limited to a 5 acre portion to be hived of (sic) from what was known as Kericho/Kapsuser/439 as well as its resultant subdivision.c.A mandatory order do issue restraining the Defendants herein from entering into, further subdividing, transferring, ploughing, farming, selling, leasing, mortgaging, charging, alienating, ploughing, and/or in any other way the may (sic) be construed in whatsoever in respect to the parcel of land known as Kericho/Kapsuser/439 or its resultant subdivision being Kericho/Kapsuser/7498-7503 or further resultants from further subdivision. (sic)d.An order do issue directing to the District Land Registrar to cancel and/or destroying the title issued to the Defendants or those who claim in their names herein and in place issuing the Plaintiff herein with title limited to 5 acres to be hived of (sic) from Kericho/Kapsuser/439 or its resultant subdivision being Kericho/Kapsuser/7498 – 7503 or further resultants from further subdivision. (sic)e.An order do issue directing to the District Land Registrar to cancel and/or destroying the resultant titles emanating from the subdivision of title being Kericho/Kapsuser/439.f.A declaration that the property in all that parcel of land known as Kericho/Kapsuser/439 limited to a portion measuring 5 acres to be hived of (sic) exclusive belongs to the deceased Kimigo Arap Kukuto and now his estate and therefore a private property entitled to the protection of the same under law. (sic)g.A declaration that the property in all that parcel of land known as Kericho/Kapsuser/439 limited to a portion measuring 5 acres to be hived of (sic) exclusive belongs to the deceased Kimigo Arap Kukuto by virtue of being matrimonial property and therefore a private property entitled to the protection of the same under law. (sic)h.Costs and interest of this suit.i.Any other relief that this Honourable Court may deem fit and just to grant. 4.The Defendant/Respondent filed her Statement of Defence on 14th August, 2023 where she denies the averments in the Plaint and urges the Court to dismiss the Plaintiff/Applicant’s suit with costs. 5.The application under consideration first came up for hearing on 10th December, 2024. Counsel for the Plaintiff/Applicant was not present in Court and it was dismissed for want of prosecution. 6.The Plaintiff/Applicant filed a Notice of Motion application dated 18th February, 2025 seeking that it be reinstated. Parties filed submissions and vide the ruling delivered on 13th November, 2025, the application dated 11th November, 2024 was reinstated for hearing and scheduled for directions on 4th February, 2026. 7.On 4th February, 2026 the Court issued directions that the application be canvassed by way of written submissions. 8.On 16th April, 2026, the application was mentioned to confirm filing of submissions and then reserved for ruling. The Plaintiff/Applicant’s Contention. 9.The Plaintiff/Applicant contends that the parties herein reached a partial mediation agreement with respect to land parcel No. Kericho/Kapsuser/439. 10.The Plaintiff/Applicant also contends that prior to the institution of this suit, land parcel No. Kericho/Kapsuser/439 was subdivided into land parcel No’s Kericho/Kapsuser/7498 – 7503. 11.The Plaintiff/Applicant further contends that his claim is for two acres of land parcel No. Kericho/Kapsuser/439 that was ceded by the Defendant/Respondent. 12.It is the Plaintiff/Applicant’s contention that the acreage of the portion of land parcel No. Kericho/Kapsuser/439 that his family is in occupation of is unknown. 13.It is also the Plaintiff/Applicant’s contention that he requires the intervention of the District Land Registrar Kericho and the District Land Surveyor Kericho to go to the ground and map out the current occupation. 14.It is further the Plaintiff/Applicant’s contention that the parties will point out to the District Land Registrar Kericho and the District Land Surveyor Kericho their boundaries and the said officers will give a proposal on the way forward as regards the partial mediation agreement. 15.The Plaintiff/Applicant contends that there is a need for the Court to intervene and issue the orders sought. 16.The Plaintiff/Applicant also contends that it is in the interest of justice that this Court invokes its inherent jurisdiction to preserve the integrity of the judicial process. 17.The Plaintiff/Applicant further contends that the Court has power to take any justified action to protect the integrity of its processes and the rights of those who are already before it to ensure justice is not subverted. 18.It is the Plaintiff/Applicant’s contention that he will be greatly prejudiced if the prayers sought are not granted. 19.He ends his deposition by stating that the application should be heard on priority basis as it is urgent. The Defendant/Respondent’s Response. 20.In response to the application, the Defendant/Respondent filed Grounds of Opposition dated 15th November, 2024. They are as follows;a.That the said application is vexations, mischievous, frivolous and otherwise an abuse of the Court process as it totally goes against the order made by this Honourable Court on the 14th day of October, 2024.b.That the order made by the Court on the above mentioned date was very specific and touched only on the issues relating to the mediation report which was duly adopted by the court as an orderc.That the Applicant herein through the application dated the 11th day of November, 2024 has opened up the entire suit and gone on a fishing expedition with a view of hoodwinking this Honourable Court to grant and/ or ventilate on issues that are not yet agreed upon by parties herein which totally offends the rules of Natural Justice and Article 50 of the Constitution of Kenya, 2010.d.That the Applicant should restrict the application to the issues that were agreed upon and captured in the Mediation report dated the 19th day of March,2024.e.That further the signature appearing on the supporting Affidavit sworn on the 11th day of November, 2024 in support of the current application do not have any resemblance or similarities whatsoever with the one appearing on the supporting affidavit of the main application in the suit dated and sworn on the 30 day of November, 2022 thereby raising an element of forgery. I humbly invite this Honourable Court to look at the two signatures and come up with a comment on the same.f.That this is a Court of record and all the pleadings must be genuine and consistent and any element of forgery should automatically have the pleading in issue to be rendered null and void ab initio.g.That due to the foregoing, the application herein is devoid of merit and should be dismissed with costs to the Defendant/Respondent. Issues for Determination. 21.The Plaintiff/Applicant filed submissions on 27th February, 2026 while Counsel for the Defendant/Respondent opted not to file submissions. 22.In his submissions, the Plaintiff/Applicant reiterates the averments in the affidavit in support of the application and submits that he entered into a partial mediation agreement with the Defendant/Respondent where they agreed that he be given a two-acre portion of land. 23.The Plaintiff/Applicant then sets out the prayers sought in the application under consideration and submits that the Court should grant the orders sought in order to aid in the just resolution of the suit. 24.The Plaintiff/Applicant also submits that his claim is for five acres. 25.The Plaintiff/Applicant further submits that it is only the surveyor who can confirm the portion of the suit parcel of land that he is in occupation of. 26.It is the Plaintiff/Applicant’s submissions that the Defendant/Respondent will not be prejudiced in any way if the prayers sought are granted. 27.The Plaintiff/Applicant concludes his submissions by urging the Court to grant the prayers sought as they will assist the Court to determine the questions of occupation, use and size of the land in dispute. Analysis and Determination. 28.I have considered the Plaintiff/Applicant’s Notice of Motion application, the response thereto and submissions. It is my view that the only issue that arises for determination is whether the application dated 11th November, 2024 has merit. 29.The Plaintiff/Applicant contends that he and the Defendant/Respondent entered into a partial mediation agreement wherein they agreed that he would be given a two-acre portion of land parcel No. Kericho/Kapsuser/439. 30.The Plaintiff/Applicant also contends that land parcel No. Kericho/Kapsuser/439 was subdivided into land parcel No’s Kericho/Kapsuser/7498-7503. 31.The Plaintiff/Applicant further contends that the total portion of the land he is in occupation of is unknown and it is imperative for the Kericho District Surveyor and Land Registrar to go the ground. 32.It is the Plaintiff/Applicant’s contention that upon mapping out of the current occupation, the Kericho District Surveyor and Land Registrar should give a proposal on the way forward. 33.The Defendant/Respondent in her grounds of opposition states that the Plaintiff/Applicant is ventilating on issues that have not been agreed upon by the parties. 34.The Defendant/Respondent also states that the Plaintiff/Applicant ought to have restricted himself on the issues that were agreed upon by the parties. 35.A perusal of the Court record shows that on 12th February, 2024, the suit was referred to Court Annexed Mediation. 36.On 19th March, 2024, a partial settlement agreement of an even date was filed in Court. It shows that the parties agreed as follows;“That the Defendant has agreed to surrender two (2) acres of land which was sold by her husband to the late Ezekiel Bor to Obot Elizabeth (Deceased) who in turn sold to one Joseph Kurgat (Deceased) who later sold to Kimilgo Arap Kukuto (Deceased) the father of the Plaintiff.” 37.The following issue was referred back to Court;“The remaining three 3 acres being claimed by the Plaintiff from the Defendant to be referred back to Court for hearing and determination.” 38.On 24th July, 2024, the said partial settlement agreement was adopted as an order of the Court. 39.On 14th October, 2024, the Court granted leave to the Plaintiff/Applicant to file an application seeking orders for the District Land Registrar to effect the terms of the mediation settlement agreement. 40.The Plaintiff/Applicant then filed the application under consideration. 41.The prayers sought in the application under consideration have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder;a.That this Honourable Court be pleased to order the District Land Registrar Kericho and District Land Surveyor Kericho to visit the suit parcel of land known as Kericho/Kapsuser/7498-7503 formerly Kericho/Kapsuser/439 and to file a report with proper sketches with GPS Coordinates communicating the following;A. The size of the parcel of land known as Kericho/Kapsuser/439.B. The current occupation, development and size of occupation of all the occupiers residing on Kericho/Kapsuser/439.C. The size of the parcels of land known as Kericho/Kapsuser/7498-7503 and their attendant occupation and development.b.A proposal on implementation of the Courts mediation agreement reached between the parties in respect to physical occupation and title to the said portion.c.That further to the above and upon filing of a proposal this Honourable Court be pleased to order the District Land Registrar Kericho and District Land Surveyor Kericho to visit the suit parcel of land known as Kericho/Kapsuser/7498-7503 formerly Kericho/Kapsuser/439 for purposes of establishment and reestablishment of any boundaries emanating from the exercise.d.That costs of this application be provided for. 42.It is important to note that the Plaintiff/Applicant was granted leave to file an application to seek orders for the District Land Registrar to effect the partial mediation agreement. 43.The terms of the partial mediation have been set out in the preceding paragraphs and they were that the Defendant/Respondent surrendered two acres of land to the Plaintiff/Applicant. 44.In the application under consideration the Plaintiff/Applicant seeks orders that the Kericho Land Surveyor and Registrar visits land parcel No’s Kericho/Kapsuser/7498-7503 and file a report on its size, the persons in occupation, determine its boundaries and then give a proposal on implementation of the partial mediation agreement. 45.As contended by the Defendant/Respondent, it is evident that the prayers sought in the application under consideration are beyond the scope of the leave that was granted by the Court. 46.If the Plaintiff/Applicant wants the District Land Registrar and Surveyor to go to the suit parcels of land and establish boundaries, all he needs to do is to approach their offices and make an application. This is as was held in Shari v Daniel & 4 others [2025] KEELC 5021 (KLR).“The Court hereby affirms that the positions of the Land Registrar and the Land Surveyor are crucial in the adjudication of boundary disputes. Nevertheless, the responsibilities attributed to these offices are as prescribed by law, specifically governed by sections 18 and 19 of the Land Registration Act in the context of this case. In particular, pursuant to sections 19 (1) and (2), the interested party seeking to establish and demarcate the boundary between their property and that of the respondent must formally apply to the Land Registrar for such determination.” (Emphasis mine) 47.Therefore, the prayers as sought in the application under consideration cannot be granted. 48.Before penning off, I note that the Defendant/Respondent has raised issues of forgery in her grounds of opposition. She states that the signature on the affidavit in support of the application does not resemble the signature on the affidavit in support of the application dated 30th November, 2022. 49.In the judicial decision of Catholic Diocese of Meru Trustees (Registered) v Agastine Njagi Njiiri & 3 others [2017] KEELC 506 (KLR) the Court held as follows;“Grounds of opposition raises issues of law only and not facts.” 50.It is my view that allegations of forgery are issues of fact and they ought not to have been raised in the Grounds of Opposition. Disposition. 51.Taking the foregoing into consideration, I find that the Plaintiff/Applicant’s Notice of Motion application dated 11th November, 2024 lacks merit and it is hereby dismissed with costs. 52.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 11TH DAY OF JUNE, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Koome for the Plaintiff/Applicant.Mr. R.K. Langat for the Defendant/Respondent.Court Assistant; Mr. Joseph Makori.