https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2976

Kosgei v Tuwei & another (Environment and Land Case 79 of 2014) [2026] KEELC 2976 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2976 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 79 of 2014 CK Yano, J May 14, 2026 Between David Kimugun Kosgei Plaintiff and Benjamin Tuwei 1st Defendant Julius Tuwei 2nd Defendant Ruling 1.The Plaintiff/Applicant filed the present application vide a Notice of Motion dated 14th November, 2025 seeking the following orders: - i. Spent. ii. That the County Surveyor and Land Registrar Uasin Gishu County be directed to fix the boundary between Land Parcel No. SOY/KAPSANG BLOCK 5 (ZIWA)/128. iii. That the plaintiff/applicant be allowed to fence along the boundary fixed by the County Surveyor. iv. That the OCS Ziwa Police Station to provide security during the exercise of boundary fixing and fencing. v. That costs of this application and the expenses incurred to be borne by the 1st defendant. vi. That the 1st defendant be arrested and be detained in prison for willful disobedience of the court’s decree. 2.The application is premised on 7 grounds on the face thereof and on the applicant’s Supporting Affidavit dated and sworn on even date. 3.The applicant deponed that a decree was issued on 17.03.2022, whose effect was to order the defendants to give vacant possession of the parcel of land known as SOY/Kapsang Block 5 (ZIWA)/184 (hereinafter referred to as the suit land) within 30 days and in default they were to be forcefully evicted therefrom. 4.In addition, the court also issued an order of permanent injunction restraining the defendants from committing acts of trespass and ordered them to pay Kshs. 250,000/= as damages together with costs of the suit. 5.It is the applicant’s claim that despite the said orders issued by the court, the 1st defendant and his family have continued to use his land for grazing and prevented him from taking possession. 6.It is further his claim that the 1st defendant has removed the posts which had been placed to mark the boundary by the County Surveyor and prevented him from fencing his land or utilizing the same. 7.He also deponed that the 1st defendant has failed to pay the damages and costs of the suit as ordered in the judgment and decree. 8.That despite the 1st defendant filing a Notice of Appeal, no orders for stay of execution in respect to the decree has even been issued in the matter. 9.He therefore maintained that it is necessary for the County Surveyor and the Land Registrar to be directed to fix the boundary and he be allowed to fence his portion of land. 10.In conclusion, he urged the court to allow the application and to grant the orders sought in the interest of justice. 11.The application was opposed. The 1st defendant/respondent filed a Replying Affidavit sworn and dated 16th March, 2026 in response to the claims made against him. 12.The 1st respondent averred that the orders sought in the application are not tenable for the reason that he is not the owner of either of the two parcels of land Nos. 184 or 128. He annexed copies of the title deed in respect of the said parcels, which confirmed that parcel No. 184 was registered in the name of the applicant while parcel No. 128 was registered in the name of Luka Kipkerich Chumba. 13.It is his contention that the dispute between the plaintiff and himself was resolved in the year 2005 and he was subsequently evicted from the parcel of land No. 184. 14.He therefore dismissed the present application as being res judicata and maintained that he should not be vexed twice for the same issue. 15.He confirmed that judgment in the matter was issued on 04.04.2019 and denied knowledge of any other order issued on 17.03.2022 as alleged by the applicant. 16.He further denied the claims of encroachment and interference with the applicant’s suit land by grazing or removing any posts or threatening to use violence against the applicant as alleged. 17.The 1st respondent maintained that he was evicted from the suit land sometimes in the year 2005 pursuant to an order issued on 17.10.2005 by Hon. B.N. Mosiria in Award No. 43 of 2002 and that he has never re-entered the said land. 18.In conclusion, the 1st respondent deponed that the plaintiff/applicant is introducing new issues relating to survey which were not the subject matter of the main suit. 19.He maintained that he has never re-entered the suit land and any act committed by any other family member should not be taken to be done by himself. 20.He thus urged the court to dismiss the present application with costs. 21.On 18.02.2026, this court issued direction that the present application be canvassed by way of written submissions. The plaintiff/applicant filed his submissions dated 18.03.2026 while the 1st defendant/respondent filed his submissions dated 16.03.2026 together with the authority cited, which I have read and duly considered in arriving at my decision as hereunder. Analysis and Determination: 22.I have carefully considered the Application and the grounds therein, the Supporting Affidavit, the replying affidavit in response and the annexures thereto as well as the rival submissions in totality. 23.Consequently, it is my considered view that the issues arising for determination are as follows: -i.Whether the present application is merited.ii.Who shall bear the costs of the present Application. 24.The above issues for determination having been duly identified, I will now proceed to discuss the same as hereunder.i.Whether the present application is merited; 25.The applicant in the present application is seeking an order for the fixing of boundary of the suit land by the land registrar and the surveyor and further that he be allowed to fence along the said boundary as fixed. 26.The applicant is also seeking the arrest of the 1st defendant for the willful disobedience of the court orders issued vide the judgment dated 04.04.2019. 27.The basis of the applicant’s application is that 1st defendant has continued with his acts of trespass and/or encroachment and has failed to yield vacant possession despite the existence of the valid court orders issued vide the judgment dated 04.04.2019 and the decree issued on 17.03.2022. 28.It is also the applicant’s claim that the 1st defendant has since interfered with the marked and fixed boundaries in the suit land by removing the posts thereon hence the need to have the same marked and fixed by the land registrar and that he be allowed to fence on the said boundary once fixed. 29.The 1st respondent on his part has denied the said claims. It is his contention that he is not an owner of either of the two parcels of land in question, No. 184 or No. 128. 30.It is further his contention that he was evicted from the suit land in the year 2005 vide an order of the court in Award No. 43 of 2002 and has never returned therein. 31.It was also his claim that the application is seeking to introduce new issues after the delivery of the judgment and decree which were not subject in the main suit and the same should therefore be dismissed. 32.It is common ground that the dispute in relation to the parties herein was heard and substantively determined vide the Judgment issued on 04.04.2019 by my predecessor, Lady Justice M.A. Odeny whose effect was to allow the plaintiff’s claim. 33.For avoidance of doubt, the judgment of 04.04.2019 granted the following orders: -a.That the defendants are hereby ordered to give vacant possession of land parcel No. Soy/Kapsang Block 5 (Ziwa)/184 within 30 days and in default be forcefully evicted therefrom.b.A permanent injunction is hereby issued restraining the defendants from committing acts of trespass over the parcel of land No. Soy/Kapsang Block 5 (Ziwa)/184.c.An order for general damages for trespass against the defendants for Kshs. 250,000/=d.Costs and interests to the plaintiff. 34.This court has taken the liberty to peruse the said judgment and I do note that in determining the claims of trespass, on 03.12.2015, the court (differently constituted) gave an order that the Land Registrar Uasin Gishu County and the Surveyor do visit the suit parcels Nos. 184 and 128 and determine the boundaries between the two parcels and thereafter file a report. 35.The Surveyor’s report was subsequently filed and the same revealed that parcel No. 184 is separate and distinct from parcel No. 128. In addition, the beacons were also affixed as per the Registry Index Map and it was stated that any attempt by any party to interfere with the set boundaries amounted to trespass. 36.Even though from the judgment of this court, issued by my predecessor Lady Justice M. Odeny clearly stated that boundaries on the suit land No. 184 and parcel No. 128 were clearly established and beacons thereafter affixed, the applicant in the present application contends that the 1st respondent has since removed the boundary marks and continued with their acts of trespass in willful disobedience with the judgment of the court and the resultant decree. 37.The question that therefore follows is whether the 1st respondent has indeed interfered with the fixed boundary and the beacons affixed on the land to warrant the grant of an order to the land registrar to fix the same. 38.It is important to point out that despite the applicant’s claim that the 1st respondent has interfered with the boundary of the suit land and removed the posts thereon, he did not annex any evidence in the form of photographs or at all in support of such claims especially noting that the boundaries thereon had already been fixed and beacons affixed in accordance with the details on the RIM. In addition, the respondent vehemently denied committing the acts complained of, having been evicted therefrom in the year 2005. 39.The law of Evidence is clear in this regard, Sections 107- 109 of the Evidence Act provides the burden of proof and clearly outlines that he who alleges must prove. 40.To this end therefore, I find no justification to warrant the grant of prayer Nos. (i) – (iv) in the Notice of Motion. The applicant has failed to discharge his burden of proof to the required standard. 41.In addition, this court is of the considered view that the Applicant was/is at liberty to invoke the remedy outlined under section 21 of the Land Registration Act if at all the respondent was on the wrong. 42.The applicant has also accused the 1st respondent for failure to fully comply with the term of the judgement issued on 04.04.2019 and urged the court to commit him to civil jail for the wilfull disobedience of the orders of the court. 43.It is his claim that other than the failure to yield vacant possession of the suit land, the 1st respondent has also never paid the amount of Kshs. 250,000/- awarded as general damages for trespass and Kshs. 199,265/- assessed as costs of the suit. 44.The 1st respondent in his replying affidavit did not comment on the said allegations levelled against him. No proof was provided on his part for the payment of the said amounts as directed by the court. 45.I wish to emphasize that court orders are not issued as mere suggestions or in vain and the same must be obeyed. No order for stay of execution of the decree has been issued in this matter either by this court or by the Court of Appeal. Further, there has been no demonstration by the 1st respondent that the orders issued on 04.04.2019 have either been set aside, varied and/or reviewed by any court of law. Consequently, the said orders remain valid court orders that must be obeyed and strictly complied with. 46.This court is cognizant of the nature of contempt of court proceedings and the standard of proof required therein given the liberty of the contemnor at stake. The applicant is therefore under a duty to strictly prove the wilfull and deliberate disobedience of the 1st respondent to the required threshold. 47.The court in the case of Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, it was held that:A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice…….” 48.Be that as it may, this court takes note of the glaring non-compliance on the part of the 1st respondent in paying the amounts of Kshs. 250,000/- as general damages as well as the assessed costs of Kshs. 199,265/- as directed by the court in the year 2019, 7 years after the same was ordered. 49.This court cannot issue an order for the arrest and committal to jail as sought by the applicant. I find that there is nothing that stopped/ prevented the applicant from applying for execution of the judgment and decree of this court against the respondent. Who shall bear the costs of the present Application; 50.The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act, unless the court is satisfied otherwise. 51.However, in view of the circumstances of the present case, it is the finding of this court that each party will bear the costs of the present application. CONCLUSION: 52.In view of the foregoing, it is the finding of this court that the present application vide the Notice of Motion dated 14th November, 2025 is not merited and is hereby dismissed. Each party to bear their own costs of the application. 53.It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF MAY, 2026.HON. C. K. YANOJUDGERuling delivered in the presence of: -Mr. Nyolei for Plaintiff/Applicant.Ms. Tum holding brief for 1st Defendant.No appearance for 2nd Defendant.Court Assistant – Laban