https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3988

***REPUBLIC OF KENYA*** ***IN THE ENVIRONMNENT AND LAND COURT AT NAROK*** ***ELC SUIT NO. E002 OF 2021*** ***BEN OLOISHORUA LUKA ……………………………….. 1ST PLAINTIFF*** ***JOSEPH MEITAMEI MPAAYEI ……………………….. 2ND PLAINTIFF*** ***(In their own capacities and as administrators of the estate of Luka Kenayia Mpaayei and Luke Lemaiyan)*** ***SANE LUKE MPAAYEI …………………………………… 3RD PLAINTIFF*** ***EMMANUEL TOIKAN MPAAYEI ……………………….. 4TH PLAINTIFF*** ***MEITEIKINI LUKA ………………………………………… 5TH PLAINTIFF*** ***VERSUS*** ***RATIA TALOI …………………………………………….. 1ST DEFENDANT*** ***SUYIANKA NKOORA …………………………………… 2ND DEFENDANT*** ***TINTI SUYANKA ………………………………………… 3RD DEFENDANT*** ***KULAL TALOI ……………………………………………. 4TH DEFENDANT*** ***MEISIAASHI TALOI ……………………………………. 5TH DEFENDANT*** ***MOITALEL LETOLUO …………………………………. 6TH DEFENDANT*** ***MAKINI LETOLUO ……………………………………… 7TH DEFENDANT*** ***OLOLKIONOR …………………………………………… 8TH DEFENDANT*** ***RUEBEN NCHOE ……………………………………….. 9TH DEFENDANT*** ***SALANKAT NCHOE …………………………………… 10TH DEFENDANT*** ***JUDGMENT*** 1. The Plaintiffs instituted this suit vide a Plaint dated ***4th November 2021,*** in respect of land parcel No. ***CIS MARA/NAILOKKILOK/25*** against the Defendants herein and averred that they were all beneficiaries of the estate of the Late ***Luka Kenaiya*** (hereinafter referred to as “***the Deceased****”)* who was the legal and registered owner of ***CIS MARA/NAILOKKILOK/25*** (hereinafter referred to as “the **Suit Land**”); that upon the Deceased’s demise, the 1st and 2nd Plaintiffs were appointed as the Administrators of his estate; and that prior to his death, the Deceased subdivided the suit land into land parcels *Nos* ***CIS MARA/NAILOKKILOK/ 85 to 91*** (hereinafter referred to as “the ***Suit Properties***”). The beneficiaries were issued with titles as the subdivisions as follows: 2. ***CIS MARA/NAILOKKILOK/ 85*** *– BEN OLOISHORUA LUKA* 3. ***CIS MARA/NAILOKKILOK/ 86*** *– SANE LUKA MPAYEI* 4. ***CIS MARA/NAILOKKILOK/ 87*** *– LUKE LEMAIYAN (DECEASED)* 5. ***CIS MARA/NAILOKKILOK/ 88*** *– JOSEPH MEITEMANI* 6. ***CIS MARA/NAILOKKILOK/ 89*** *– MEITEIKINI LUKA* 7. ***CIS MARA/NAILOKKILOK/ 90*** *– EMMANUEL TOKIAN MPAYEEI* 8. ***CIS MARA/NAILOKKILOK/ 91*** *– LUKA KENAIYA MPAAYEI (DECEASED)* 9. The Plaintiffs further averred that the Defendants, under the guise of ***Shiralie Group*** illegally trespassed unto and started cultivating on part of the suit properties prior to the subdivision of the land, prompting the Deceased( **Luka Kenaiya)** to file a suit against the defendants herein *being* ***Milimani HC Misc. Civil Application No. 897 of 2003****;* that the 2nd, 4th, 9th and 10th Defendants herein are defendants in the aforementioned suit while the rest of the Defendants are their heirs. 10. Additionally, that the ***Milimani High Court*** made the following orders on **23rd September 2003**: 11. ***That the Defendants, agents, servants, and/or other parties claiming through them be evicted from the suit premises since the boundaries have been marked by the District Land Registrar Narok District in conjunction with the District Surveyor; and*** 12. ***That the Officer Commanding Police Division (OCPD) Narok District, do provide necessary and sufficient security to the court bailiff to be appointed to carry out eviction.*** 13. The Plaintiffs further averred that their Deceased father attempted to have the ***orders enforced*** to no avail, prompting several amendments to the order before his death, with the last one having been made on ***4th February 2011*** and served upon the Defendants. 14. Further that the Defendants have encroached further unto the suit properties almost completely engulfing the Plaintiffs’ land; that they have undertaken an ***illegal demarcation*** on the suit properties void of the Plaintiffs’ consent; that they have attempted to visit the land but have been chased away with spears, poisoned arrows and clubs. 15. That they have been denied access and use of the suit properties despite being the legal registered owners of the suit properties, and the survey maps from the Ministry of lands clearly showing the boundaries of the land. 16. Further, that on or about ***11th June 2012***, the 1st Defendant trespassed unto the suit properties, damaged the permanent structures therein and began erecting permanent structures thereon. 17. Consequently, the Plaintiffs urged the Court to enter judgment as against the Defendants for the following orders: 18. ***A permanent injunction restraining the Defendants, their servants, workmen, agents, and/or anyone claiming through them from entering into and/or trespassing, cultivating or in any way interfering with the Plaintiffs’ use and enjoyment of the suit properties.*** 19. ***An order of eviction against the Defendants, their servants, workmen, agents, and/or anyone claiming through them in respect of the suit properties.*** 20. ***Mesne profits starting January 2003 to be computed upto and including the day the Defendants cease to occupy the properties.*** 21. ***Costs and interests on the suit.*** 22. ***Any other relief the court deems fit to grant.*** 23. The suit is vehemently opposed by the Defendants herein who filed their ***Amended Statement of Defence and Counterclaim*** dated ***9th June 2025*** and averred as follows: 24. That Defendants and their families are members of the ***Purko Maasai Clan,*** and have resided on the disputed land within the ***Ntulele area*** since; that they have established their homes and livelihoods on the suit land, and have buried their deceased family members thereon, demonstrating long-standing occupation and possession. 25. Further that on ***1st September 1970***, the ***Land Adjudication*** ***Officer*** for ***Narok District***, pursuant to ***Section 5*** of the ***Land Adjudication Act,*** declared the ***Ntulele area*** an Adjudication Section, and a ***Notice of Adjudication*** was duly issued; that the boundaries of the ***Adjudication Section*** were lawfully established, and defined in the ***Notice of Declaration,*** and that the said ***Declaration*** has never been challenged or nullified through any legal process. 26. The Defendants further averred that following the declaration, ***Adjudication Record No. 447854*** was issued on ***8th March* *1977****,* recognizing the interests of ***2,222 members*** of the ***Ntulele Group Ranch;*** that the Defendants and/or their parents are among the persons whose interests were duly ascertained, and recorded in the ***Adjudication Register*** in accordance with the ***Land Adjudication Act.*** 27. Further, that although the subdivision exercise was completed and a ***Certificate of Completion*** issued on ***1st December 1982,*** the adjudication process was never finalized and individual title deeds have never been processed. 28. The Defendants further relied on the decision in ***Miscellaneous Civil Application No. 13 of 2018, Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others****,* wherein a three-judge bench, in a Judgment delivered on ***24th May 2024****,* affirmed the validity of the Notice declaring the ***Ntulele Adjudication Section*** and upheld the ***Adjudication Register***; wherein the court gave the following orders: 29. ***A declaration that all persons whose names appear in the adjudication register of Ntulele Adjudication Section are entitled to equal shares to the parcel of lan comprised in the said Ntulele Adjudication Section.*** 30. ***An order that the land comprised in the Ntulele Adjudication Section be portioned/divided equally among the 2,222 members of the Ildamat Keenyoike and Purko*** 31. The Defendants further averred that they are entitled to registration as proprietors of the land parcels they have occupied since ***1965*** once the court orders are implemented since they are among the registered beneficiaries. 32. The Defendants also denied trespassing onto the Plaintiffs’ properties. The Defendants contended that they have remained within the boundaries of the ***Ntulele Adjudication Section*** as established by the ***Notice of Declaration*** issued on ***1st September 1970****; a*nd that it is the Plaintiffs’ parcels of land that overlap and encroach unto the ***Ntulele Adjudication Section*** beyond the legally established adjudication boundaries. 33. The Defendants further averred that the Plaintiffs clandestinely demarcated the boundaries of their suit properties without involving the Defendants or the local community, resulting in the Plaintiffs’ parcels of land overlapping into the adjudicated ***Ntulele Section*** and encroaching upon land occupied by the Defendants. 34. Further, the Defendants maintained that the Plaintiffs established and demarcated their properties long after the adjudication boundaries had been lawfully declared in ***1970,*** and that the Plaintiffs subsequently obtained title deeds based on those later demarcations. 35. The Defendants denied the Plaintiffs’ allegations relating to ***Milimani High Court Miscellaneous Civil Application No. 897 of 2003****,* and contended that they were neither parties to nor heirs of the defendants in that matter. 36. Further, the Defendants also denied liability for ***mesne profits***, and maintained that they had never trespassed onto the Plaintiffs’ land, and therefore no basis existed for such a claim. 37. By way of a ***Counterclaim***, the Defendants reiterated the foregoing averments and asserted that they are the lawful beneficiaries of the ***Ntulele Adjudication Section*** by virtue of their long occupation, their inclusion in the Adjudication Register, and the Judgment delivered in ***Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others***. 38. Consequently, the Defendants urged the court to dismiss the Plaintiffs’ suit with costs, and that Judgment be entered against the said Plaintiffs for: 39. ***A Declaration that the boundaries of the Ntulele Section is as set out in the Notice of Declaration of Adjudication Section Ntulele Narok District issued on 1st September 1970 under the provisions of the Land Adjudication Act.*** 40. ***A Declaration that the boundaries of land known as CIS MARA/NAILOKLOK/85, CIS MARA/NAILOKLOK/86, CIS MARA/NAILOKLOK/87, CIS MARA/NAILOKLOK/88, CIS MARA/NAILOKLOK/89, CIS MARA/NAILOKLOK/90, and CIS MARA/NAILOKLOK/91 have overlapped into Ntulele Adjudication Section Declared in the Notice of 1st September 1970.*** 41. ***An order of rectification of the boundaries of land known as CIS MARA/NAILOKLOK/85, CIS MARA/NAILOKLOK/86, CIS MARA/NAILOKLOK/87, CIS MARA/NAILOKLOK/88, CIS MARA/NAILOKLOK/89, CIS MARA/NAILOKLOK/90, and CIS MARA/NAILOKLOK/91 so that they do not overlap into Ntulele Adjudication Section declared in the Notice of 1st September 1970.*** 42. ***An order of permanent injunction prohibiting the Plaintiffs by themselves, their agents, servants and/or unauthorized representatives from encroaching or interfering in any manner with the Defendants’ peaceful and quiet ownership, possession and occupation of Ntulele Adjudication Section declared in the Notice of 1st September 1970.*** 43. ***Costs of the Counterclaim be provided for.*** 44. The Plaintiffs filed a Reply to the Defence and Counter-Claim dated 11th June 2025,and denied the averments contained in the said Defence and Counter-claim, and urged the Plaintiffs to strictly proof the said allegations. 45. Further, the Plaintiffs claimed that there was no demonstrable nexus between the subject land and the purported ***Ntulele Adjudication Area.*** They also claimed that there was no demonstrable locus standi with respect to the Defendants’ purported membership of ***Ntulele Adjudication Area*** ,and the issues raised by the Defendants are statue barred. 46. In respect to the Counter-claim, the Plaintiffs denied all the allegations thereon and sought for strict proof thereof, and averred that they are the bona fide registered beneficial and lawful proprietors of the suit properties and urged the court to dismiss the ***Counter-claim*** with costs to themselves. 47. In response to the Plaintiffs’ ***Defence to Counterclaim***, the Defendants filed a Reply dated ***14th July 2025***, and reiterated the contents of ***Paragraphs 37 to 40*** of their ***Counterclaim;*** and admitted that there is a ***nexus*** between the ***suit properties*** and the ***Ntulele Adjudication Section*** as the two lands are adjacent to each other; and that the boundaries of the suit properties have overlapped into ***Ntulele Adjudication Area***. 48. Further, that they have ***locus standi*** to make their ***Counterclaim*** against the Plaintiffs as their names appear in the ***Adjudication Register*** of ***Ntulele Adjudication Section***; that they are ***tenants in common*** in respect of equal shares of the ***Ntulele Adjudication Section***; and that they have demonstratable right over the ownership of Ntulele ***Adjudication Section.*** 49. The Defendants further averred that the issues raised in the ***Counter-claim*** are not statute barred for the following reasons; 50. ***The declaration of the Ntulele Adjudication Section was made pursuant to the provisions of the Land Adjudication Act, and not the Land Consolidation Act. Consequently, the provisions of the Land Consolidation Act are inapplicable to the present dispute, which is governed exclusively by the Land Adjudication Act.*** 51. ***The Counterclaim does not invite the Court to determine proprietary interests in land. Rather, it raises a boundary dispute concerning the location of the boundary between the Plaintiffs registered parcels and the Ntulele Adjudication Section. Thus, the consent of the Land Adjudication Officer was not a prerequisite to the institution of the Counterclaim.*** 52. ***Further, the adjudication process in respect of the Ntulele Adjudication Section was concluded by the Land Adjudication Officer, Narok District, on 1st December 1982, and as such, the consent of the Land Adjudication Officer was not required before instituting the Counterclaim***. 53. ***The adjudication register for the Ntulele Adjudication Section was upheld by this Court in Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others and therefore*** ***constitutes a valid and authoritative record of the persons entitled to interests within the adjudication section***. 54. The Defendants further averred that the Plaintiffs’ Defence to ***Counter-claim*** were mere denials, lacked specificity and did not raise any serious arguable issues; and that the same ought to be struck out for being an abuse of the court process. 55. After the close of pleadings, and pre-trial conferences, the matter proceeded for hearing via viva voce evidence, wherein the Plaintiffs called two witnesses to support its case, and the Defendants called one witness. **PLAINTIFFS’ CASE** 1. ***PW1*: *Ben Oloishorua Luka*,** adopted his witness statement dated ***16th November 2023,*** as his evidence in chef and produced his list of documents dated ***14th January 2021*** as ***PExhibits 1-12.*** 2. ***PW1*** as the 1st Plaintiff gave evidence on his own behalf and on behalf of the other Plaintiffs, his brothers, with their authority; that the Plaintiffs are beneficiaries of the estate of their father, the ***late Luka Kenaiya***; that the 1st and 2nd Plaintiffs are the duly appointed administrators of the deceased’s estate. 3. Further, that their deceased father( ***Luka Kenaiya***) was the registered proprietor of land parcel ***CIS MARA/NAILOKKILOK/25****; and* before his death, the deceased subdivided the suit land into several land parcels being ***CIS MARA/NAILOKKILOK/85 to 91****,* which were distributed among the beneficiaries, each of whom was issued with a separate title deed. 4. ***PW1*** further testified that despite the subdivision and issuance of the title deeds, the Defendants, whom he described as trespassers, ***unlawfully entered and occupied portions*** of the ***suit properties***; that the Defendants had initially been cultivating part of the original parcel of land, and had continued their occupation despite court orders issued in ***Miscellaneous Civil Application No. 87 of 2003,*** directing their eviction and restraining further interference with the land. 5. It was his further testimony that although the court had ordered the District Surveyor to identify and mark the boundaries of the suit properties, and directed the ***O.C.P.D. Narok*** ***District*** to provide security during the exercise, those orders were never effectively enforced; and that their Deceased father had repeatedly attempted to enforce the orders, but was frustrated, and on one occasion was violently chased away when he attempted to serve or execute the court orders. 6. Upon cross examination, ***PW1*** testified that there was an ongoing adjudication process when the Deceased got the land; that Ntulele was declared an ***Adjudication Section*** in ***1970***; and that the Defendants were also Defendants in ***Misc. 87 of 2003***, however he did not produce any evidence to support this position and allegation. 7. ***PW2:Solomon Mwangi*,** produced a Valuation Report as ***PExhibit 11,*** and further testified that he is a qualified and registered Valuer and not a surveyor; and that according to the Valuation Report, the encroached area is about ***129 acres*** on Land parcel ***No. 91.*** **DEFENDANTS’ CASE** 1. ***DW1:Salankat Nchoe,*** adopted his witness statement dated ***9th June 2025,*** as his evidence in chief and produced his list of documents as ***DExhibits 1-6.*** He further testified that he is the ***10th Defendant*** and a resident of ***Ntulele Adjudication Section*** in Narok County; he testified his own behalf and on behalf of the other Defendants; that the Defendants and their families belong to the ***Purko Maasai Clan*** and have resided on the disputed land Parcel within the ***Ntulele area*** since 1965. 2. DW1 further testified that on ***1st September 1970***, the ***Land Adjudication Officer*** for ***Narok District*** declared the Ntulele area as an ***Adjudication Section*** and published a ***Notice of Declaration*** defining its boundaries; that the boundaries contained therein have never been challenged, set aside or invalidated through any legal process and therefore remain valid. 3. He further testified that following the declaration, an Adjudication Register, ***Record No. 447854***, was issued on ***8th March 1977,*** which recognized the interests of ***2,222 members*** of the ***Ntulele Group Ranch*** which members include the Defendants and/or their parents; that although a subdivision exercise was completed and a ***Certificate of Completion*** issued on ***1st December 1982***, he stated that the adjudication process was never fully completed, and title deeds were never processed and issued to the members. 4. DW1 further testified that the Defendants currently occupy parcels of land situated within the boundaries of the ***Ntulele Adjudication Section;*** and therefore, they have not trespassed onto the Plaintiffs’ properties, and maintained that it is the Plaintiffs’ parcels of land that have overlapped into the ***Ntulele Adjudication Section.*** 5. Thereafter, the parties filed their respective written submissions. The Plaintiffs filed their written submissions dated ***2nd February 2026,*** through **Advoctaes,** wherein they raised the following issues for determination: 6. ***Are the Plaintiffs the legal owners of the suit land?*** 7. ***Are the Defendants guilty of trespass?*** 8. ***Have the suit parcels overlapped onto, and the Plaintiff’s trespassed onto Ntulele Adjudication Section?*** 9. ***Whether the Plaintiffs are entitled to compensation by the Defendants?*** 10. ***Who is entitled to costs?*** 11. It was the Plaintiffs submissions that they are the registered proprietors of the suit parcels of land, having produced title deeds, succession documents, survey maps and previous court orders confirming their ownership; that the Defendants neither challenged the validity of the titles nor pleaded or proved fraud, misrepresentation or illegal acquisition as required by law; and that the Defendants’ allegations that the Plaintiffs clandestinely altered boundaries were unsupported by evidence and incapable of impeaching registered titles. 12. For this submissions, the Plaintiffs relied on ***Sections 24*** *and* ***26(1)*** of the ***Land Registration Act***, and submitted that ***registration vests absolute ownership*** in the registered proprietor, and that a Certificate of title is *prima facie* evidence of ***indefeasible ownership*** unless acquired through fraud, misrepresentation or illegality. 13. They further relied on ***Dr. Joseph Arap Ngok v Justice Moijo ole Keiwua & 5 Others, Civil Appeal No. 60 of 1997***, wherein the Court of Appeal held that a registered proprietor enjoys an absolute and indefeasible title which can only be challenged on the statutory grounds provided by law. 14. They also cited ***Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR*** *and* ***Kinyanjui Kamau v George Kamau [2015] eKLR*** for the principle that allegations of fraud must be specifically pleaded and strictly proved. 15. On the ***Defendants’ trespass onto the suit land***, the Plaintiffs submitted that trespass had been established through both oral and documentary evidence; that despite having no lawful interest in the suit properties, the Defendants entered, occupied and developed portions of the land, excluded the Plaintiffs from possession, and remained in occupation despite previous court orders and repeated objections by the Plaintiffs. 16. Relying on the ***10th Edition*** of ***Black’s Law Dictionary***, the Plaintiffs submitted that trespass consists of an unlawful entry onto another person’s land. They also cited ***Clerk & Lindsell*** on ***Torts (18th Edition***), which defines trespass as any unjustifiable intrusion onto land in another’s possession. 17. Further, they submitted that the Defendants’ occupation amounted to ***a continuing trespass*** as defined in the ***Black’s Law Dictionary and Clerk & Lindsell on Torts (16th Edition***) as one that gives rise to a fresh cause of action for every day the unlawful occupation persists. 18. The Plaintiffs also submitted that the Defendants’ occupation constituted a nuisance, as defined in ***Nakuru Industries Limited v S.S. Mehta & Sons [2016] eKLR,***as interference with another person’s use and enjoyment of land. Further, that the Defendants failed to prove that the Plaintiffs’ land overlaps the ***Ntulele Adjudication Section*** or that the Plaintiffs had trespassed onto land belonging to the Defendants; that only the ***2nd, 6th, 7th and*** ***10th Defendants*** appeared in the ***membership records*** of the ***Ntulele Adjudication Section***, while the remaining Defendants lacked any demonstrated legal interest in the ***Adjudication section.*** 19. Conversely, the Plaintiffs contended that they produced official survey maps and valuation reports demonstrating the Defendants’ encroachment onto the suit properties. 20. Further, that the Judgment in ***Narok ELC Miscellaneous Civil Application No. 13 of 2018,*** did not confer registered ownership upon the Defendants, but merely affirmed the adjudication process, and directed equal subdivision among the adjudication members; and that the Defendants’ interests remained unregistered and therefore could not supersede the Plaintiffs, registered titles. 21. Reliance was sought on ***Doshi v Chhemutut & 7 Others, Civil Appeal No. E020 of 2020***, where the Court held that a registered proprietor’s title takes priority over competing unregistered interests. Therefore, the plaintiffs having established trespass, the Plaintiffs were entitled to damages and mesne profits for the period they had been unlawfully deprived of possession. 22. They relied on ***Section 2*** of the ***Civil Procedure Act***, which defines mesne profits, and ***Order 21 Rule******13*** of the ***Civil Procedure Rules,*** which empowers the Court to award mesne profits in actions for recovery of immovable property. 23. They further relied on ***Attorney General v Halal Meat Products Limited [2016] eKLR***, and submitted that a person wrongfully deprived of possession is entitled to mesne profits arising from the unlawful occupation. Further, that the Valuation report, supported by survey evidence, established both the extent of encroachment and the annual rental value of the affected land. 24. Further, they submitted that an annual lease value of ***Kshs. 10,000/=,*** per hectare was reasonable and urged the Court to award mesne profits calculated from the date of filing suit until delivery of judgment based on the acreage encroached. 25. The Plaintiffs further submitted that they had proved ownership of the suit properties and established that the Defendants had unlawfully entered, occupied and continued to exclude them from possession for several years. 26. The Plaintiffs argued that the ***Defence and Counterclaim*** consisted of unsupported allegations, that no expert evidence had been tendered to prove the alleged ***overlap*** between the registered parcels and the ***Ntulele Adjudication Section***, and that the allegations of trespass by the Plaintiffs were merely an afterthought. 27. Further, that the ***Counter-claim*** was ***incompetent*** because the issues concerning the status of the ***Ntulele Adjudication*** ***Section*** had already been determined in ***Narok ELC Miscellaneous*** ***Civil Application No. 13 of 2018,*** rendering the ***Counter-claim*** moot, duplicative and res judicata to that extent. 28. On costs, the Plaintiffs submitted that costs should follow the event pursuant to ***Section 27(1)*** of the ***Civil Procedure Act***. Having succeeded in proving their claim, the Plaintiffs urged the Court to award them costs of the suit and to dismiss the Defendants’ Counterclaim with costs. 29. The Defendants filed their written submissions dated ***13th March 2026,*** and raised only two issues for determination, namely: 30. ***Whether he Defendants have trespassed into the Plaintiffs’ land*** 31. ***Whether the Plaintiffs are entitled to the reliefs sought.*** 32. On whether the Defendants trespassed onto the Plaintiffs’ parcels of land, the Defendants submitted that they did not trespass onto the Plaintiffs’ properties; that the uncontroverted evidence before the Court established that the Defendants and their families have occupied the disputed land within the Ntulele area continuously since ***1965,*** long before the Plaintiffs acquired title to the suit properties; that they have established their homes and livelihoods on the suit land, and have buried their relatives there, demonstrating uninterrupted occupation. 33. The Defendants further submitted that the Plaintiffs failed to disclose when the alleged trespass occurred because, by the time the Plaintiffs obtained title to the suit properties in ***February 1999,*** following succession proceedings, the Defendants were already in occupation; and that the Plaintiffs did not rebut their evidence, that they had occupied the land since 1965. 34. The Defendants further submitted that the land occupied by them formed part of the ***Ntulele Adjudication Section***, which was declared an ***adjudication area*** through a ***Notice of Declaration*** issued on ***1st September 1970***; that they produced the adjudication register dated ***8th March 1977***, which recognized the interests of the Defendants, and their families in the adjudication section because they were already in occupation during the adjudication process. 35. Further, that if their occupation became adverse upon registration of the Plaintiffs’ titles in ***February 1999,*** the Plaintiffs were required to institute proceedings to recover possession within twelve years. Since the present suit was filed in ***2021***, then the suit was statute-barred under ***Section 7*** of the ***Limitation of Actions Act***, which prohibits actions for recovery of land after the expiry of twelve years from the date the cause of action accrued. 36. Reliance was sought on ***Nelson Machoka Keraro v Land Registrar Kisii & 3 Others [2019] eKLR****,* where the Court held that time begins to run once the suit property is transferred to the registered proprietor, and that a suit filed after the statutory period is barred. 37. Further, they relied on ***ITSL Trust Company Limited & Another v National Land Commission & 2 Others [2021] eKLR****,* where the Court held that actions for recovery of land must be brought within the limitation period prescribed by law. 38. They also cited ***Section 17*** of the ***Limitation of Actions Act,*** and submitted that upon expiry of the limitation period, the registered proprietor’s title to the affected portion of land is extinguished; that the Plaintiffs’ rights over the portions occupied by the Defendants had been extinguished through the Plaintiffs’ failure to institute recovery proceedings within time. 39. Further reliance was placed on ***Thomas Moth Otando & Another v Maurice Tako Hongo, ELC Appeal No. E042 of 2024****,* where Court held that long occupation may extinguish a registered proprietor’s title under ***Sections 7 and 17*** of the ***Limitation of Actions Act,*** with the consequence that such occupants cannot be regarded as trespassers. 40. Further, the Defendants submitted that they were not parties to ***Milimani High Court Miscellaneous Civil Application No. 897 of 2003***, relied upon by the Plaintiffs, and therefore the orders issued therein were not binding upon them; that they continue to occupy land falling within the boundaries of the ***Ntulele Adjudication Section***; and that following the judgment in ***Miscellaneous Civil Application No. 13 of 2018, Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others*,** their rights had crystallized because the Court directed that the ***Ntulele Adjudication Section*** be subdivided among the beneficiaries, including the Defendants. 41. On whether the Plaintiffs are entitled to the reliefs sought, the Defendants submitted that since they were already in occupation of the land long before the Plaintiffs obtained title, they could not be ***treated as trespassers*** merely because the Plaintiffs later became registered proprietors; and that the Plaintiffs’ claims for eviction, injunction and other consequential reliefs were therefore untenable. 42. Consequently, the Defendants urged the Court to find that the Plaintiffs had failed to establish trespass or any legal basis for the remedies sought and to dismiss the Plaintiffs’ suit in its entirety. 43. On ***costs***, the Defendants submitted that the Plaintiffs’ suit should be dismissed with costs and that the Counterclaim should be allowed with costs in their favour. 44. This Court has carefully considered the pleadings filed by the parties, the oral and documentary evidence adduced in court, the rival written submissions together with the authorities relied upon, and the applicable constitutional and statutory provisions, and the t Court finds the issues for determination as follows; 45. ***Whether the Plaintiffs’ suit and the Defendants’ Counterclaim are statute-barred.*** 46. ***Whether the Plaintiffs have proved that the Defendants trespassed upon land parcels CIS MARA/NAILOKKILOK/85, 86, 87, 88, 89, 90 and 91.*** 47. ***Whether the Plaintiffs are entitled to the reliefs sought in the Plaint.*** 48. ***Whether the Defendants have proved their Counterclaim.*** 49. ***Who should bear the costs of the suit and the Counterclaim.*** 50. The issue of limitation was extensively canvassed by both parties. Although it was raised by the Defendants as a defence to the Plaintiffs’ claim, and by the Plaintiffs in response to the Counterclaim, this Court considers it prudent to determine the issue at the outset because limitation is not merely a procedural technicality, but goes to the root of any suit, and affects jurisdiction of a court to determine a matter. 51. Limitation of action is a substantive question of law that goes to the jurisdiction of the Court to entertain a claim. Where an action is commenced outside the period prescribed by statute, the Court lacks jurisdiction to determine the dispute, unless the law expressly permits extension of time. 52. This principle has long been settled. In ***Divecon Limited v Samani [1995-1998] 1 EA 48****,* the Court of Appeal held that where a suit is filed outside the limitation period prescribed by statute, the Court has no jurisdiction to entertain it unless the statute itself provides for extension. Likewise, in ***Rawal v Rawal [1990] KLR 275****,* the Court emphasized that limitation statutes are matters of substantive law and not merely rules of procedure. 53. The Defendants’ argued and submitted that they have been in occupation of the disputed land parcel ***continuously*** since ***1965.*** Further, they submit that although the Plaintiffs became ***registered proprietors*** of the suit properties in ***February 1999,*** they took no legal action to recover possession until the institution of the present suit in ***November 2021***. 54. According to the Defendants, the Plaintiffs waited for over ***twenty-two years*** before filing the instant suit, which is well beyond the ***twelve-year*** period prescribed under ***Section 7*** of the ***Limitation of Actions Act ,b*** and thus the suit is time barred. 55. To buttress this argument, the Defendants relied on ***Sections 7 and 17*** of the ***Limitation of Actions Act*** as well as the decisions in ***Nelson Machoka Keraro v Land Registrar Kisii & 3 Others [2019] eKLR****,* ***ITSL Trust Company Limited & Another v National Land Commission & 2 Others [2021] eKLR****, and* ***Thomas Moth Otando & Another v Maurice Tako Hongo, ELC Appeal No. E042 of 2024***, all of which reiterate the principle that an action for recovery of land must ordinarily be instituted within ***twelve years*** from the date the cause of action accrues. 56. On their part, the Plaintiffs took a different view, and maintained that the Defendants are continuing trespassers, who have progressively expanded their occupation over time, and have remained on the suit properties despite court orders previously issued directing their eviction. The Plaintiffs contended that the present cause of action is ***founded upon a continuing trespass,*** and that every day the Defendants remain in occupation constitutes a fresh infringement of their proprietary rights. 57. The applicable law is found in ***Section 7*** of the ***Limitation of Actions Act,*** which provides: “***An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”*** 1. **Section 17** of the same Act provides that at the expiration of the limitation period, the title of the proprietor to the land is extinguished. 2. From these provisions of law, two principles emerge. First, the Court must identify the precise nature of the cause of action before determining the applicable limitation period. Secondly, the Court must ascertain the date upon which the cause of action accrued because time begins to run only upon accrual of the cause of action. Therefore, it is necessary to examine the pleadings and evidence before this Court. 3. The Plaintiffs have pleaded that the Defendants initially entered unto the portions of the original parcel of land before subdivision, continued cultivating the land, ignored eviction orders issued in ***2003***, and have since expanded their occupation to almost engulf the Plaintiffs’ respective parcels. PW1 reiterated this position in his testimony in court, and stated that the Defendants continue to deny the Plaintiffs access to the suit properties. 4. The Defendants, however, deny occupying the Plaintiffs’ land. Their case throughout has been that they occupy land comprised within the ***Ntulele Adjudication Section,*** and that it is the Plaintiffs’ registered parcels of land which overlap into that ***adjudication area.*** 5. The plea of limitation advanced by the Defendants proceeds on the assumption that the land occupied by them is indeed the Plaintiffs’ land. Yet the very foundation of their Defence is that the Defendants do not occupy the Plaintiffs’ land at all. 6. In effect, the Defendants invite the Court to simultaneously hold, first, that they have occupied the Plaintiffs’ land continuously for more than twelve years and, secondly, that they have never occupied the Plaintiffs’ land, but have always remained within the ***Ntulele Adjudication Section***. 7. If the Defendants’ case is accepted that they occupy land falling entirely within the ***Ntulele Adjudication Section***, then no cause of action for recovery of the Plaintiffs’ land could have accrued because, on that hypothesis, there would have been no occupation of the Plaintiffs’ land in the first place. Conversely, if the Defendants are indeed occupying portions of the Plaintiffs’ registered parcels of land, then the Court must first identify the precise portions allegedly occupied before determining whether time had started to run against the Plaintiffs. 8. The question of limitation cannot therefore be divorced from the primary factual dispute between the parties, namely whether the land occupied by the Defendants falls within the Plaintiffs’ registered parcels or within the ***Ntulele Adjudication Section***. 9. The Court further notes that the Plaintiffs’ claim is not based upon a single completed act of trespass. Their pleadings allege ***progressive encroachment and continuing occupation***. Indeed, in ***paragraph 6*** of the Plaint, the Plaintiffs alleged that the Defendants have *“encroached further into the suit properties almost completely engulfing the Plaintiffs’ land”.* 10. The law recognizes that a continuing trespass gives rise to a fresh cause of action for every day that the unlawful occupation persists. Consequently, where a plaintiff alleges continuing trespass, the Court must be cautious before striking out the claim solely on limitation, particularly where the existence and extent of the alleged trespass remain disputed. 11. The Defendants relied on **Sections 7 and 17** of the ***Limitation of Actions Act*** to argue that the Plaintiffs’ title has been extinguished. These ***Sections 7 and 17*** do not extinguish title merely because a defendant alleges long occupation. Extinguishment occurs only where the facts giving rise to ***adverse possession*** have been established. Such ***occupation*** must be ***open, notorious, exclusive, continuous*** and ***adverse*** to the title of the registered proprietor for the prescribed statutory period. 12. Curiously, although the Defendants rely heavily on ***Sections 7*** ***and 17***, they did not pleaded ***adverse possession*** nor sought any declaration that they have acquired title by adverse possession. Their Counterclaim instead seeks declarations that the alleged overlap of boundaries between the Plaintiffs’ parcels of land and the ***Ntulele Adjudication Section***, rectification of boundaries and permanent injunctive relief. 13. A claim founded on adverse possession proceeds on the basis that the claimant has occupied another person’s registered land long enough to extinguish that person’s title. By contrast, the Defendants’ Counterclaim proceeds on the premise that they have never occupied the Plaintiffs’ land, but have remained within the ***Ntulele Adjudication Section.*** These are legally distinct positions. Therefore, this Court cannot import the ***doctrine of adverse*** ***possession*** where it has neither been pleaded nor proved. 14. The Plaintiffs, for their part, urged the Court to find that the Counterclaim itself is statute-barred. 15. The Court is unable to agree. The Counterclaim principally seeks declarations relating to the location of the boundary between the Plaintiffs registered parcels of land and the ***Ntulele Adjudication Section*** together with consequential reliefs. Those claims arise from the Defendants’ contention that the Plaintiffs’ parcels of land overlap into the adjudication section, and from the implementation of the judgment in ***Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others****.* 16. Whether those assertions are ultimately proved is a matter that goes to the merits of the Counterclaim. Therefore, this Court is not persuaded that the ***Counterclaim*** is ***incompeten***t merely by reason of limitation. 17. Accordingly, having considered the pleadings, the evidence and the applicable law, this Court finds that neither the Plaintiffs’ suit nor the Defendants’ Counterclaim is liable to be struck out on account of limitation. The respective pleas of limitation therefore fail. The Court shall consequently proceed to determine the substantive rights of the parties on the evidence tendered before it. 18. Having found that neither the Plaintiffs’ suit nor the Defendants’ Counterclaim is defeated by limitation, the Court now turns to the substantive dispute between the parties. 19. The Plaintiffs’ case is founded upon the proposition that they are the registered proprietors of land parcels ***CIS MARA/NAILOKKILOK/85 to 91****,* having acquired the same through succession from the estate of their late father ***Luka Kenaiya.*** through subdivision of ***CIS MARA/NAILOKKILOK/25,*** by the Deceased. The Plaintiffs claimed that despite their registration as proprietors, the Defendants unlawfully entered onto the suit properties, cultivated the land, erected permanent structures thereon and have continued to deny them possession and enjoyment of their respective parcels. 20. The Defendants disputed these allegations. Their position is that they did not enter or trespass unto the Plaintiffs’ land, but rather that they have continuously occupied land falling within the ***Ntulele Adjudication Section*** since approximately ***1965;*** and that the boundaries of the Plaintiffs’ parcels overlap into the adjudication section and that they have never trespassed onto the Plaintiffs’ registered land. 21. It follows that before determining whether trespass has been established, the Court must first determine whether the Plaintiffs have proved that the land occupied by the Defendants falls within the boundaries of the Plaintiffs’ registered parcels. 22. There is no dispute that the Plaintiffs are the registered proprietors of land parcels ***No. CIS MARA/NAILOKKILOK/85 to*** ***91.*** PW1 produced the respective title deeds, and testified that the original Land parcel ***No, CIS MARA/NAILOKKILOK/25,*** belonged to the late father***, Luka Kenaiya***, who subdivided it into the present parcels of land for the benefit of his family. The succession documents produced in court as evidence and exhibits corroborate that testimony. 23. The Defendants did not challenge the authenticity of those titles. Neither did they plead fraud, misrepresentation, illegality, procedural impropriety or acquisition through a corrupt scheme. 24. ***Sections 24 and 25*** of the ***Land Registration Act*** vest ***absolute ownership*** in a registered proprietor together with all rights and privileges appurtenant thereto, while ***Section 26*** provides that a Certificate of title shall be taken by all courts as prima facie evidence that the person named therein is the absolute and indefeasible owner, unless the title falls within the statutory exceptions. 25. The Court of Appeal in ***Dr. Joseph Arap Ngok v Justice Moijo ole Keiwua & 5 Others, Civil Appeal No. 60 of 1997*** stated that: *“...****title of such proprietor can only be subject to challenge on the grounds specified in the statute***.” 1. Similarly, in ***Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another [2013] eKLR***, the Court observed that a title can only be impeached where the circumstances contemplated under ***Section 26*** of the ***Land Registration Act*** have been established. Accordingly, this Court has no hesitation in finding that the Plaintiffs have proved that they are the lawful registered proprietors of the suit properties. 2. However, registration of title does not automatically establish trespass. The Plaintiffs still needed to prove, on a balance of probabilities, that the Defendants unlawfully entered unto or remained upon the suit properties, without their authorities and/or permission, thus trespass. 3. ***PW1*** testified that the Defendants have progressively encroached upon the suit properties, and have refused to vacate despite previous court orders and have prevented the Plaintiffs from accessing their land. While the Court has no reason to doubt that ***PW1*** genuinely believes the Defendants occupy land belonging to the Plaintiffs, the difficulty lies in proving where the occupation complained of is situated. 4. The Defendants did not deny occupation. Indeed***, DW1*** candidly admitted that the Defendants have lived on the disputed land for decades. The dispute is therefore not about occupation, but it is about the legal location of that occupation. The Plaintiffs alleged that the said occupation falls within their registered parcels of land, while the Defendants insisted their occupation falls within the ***Ntulele Adjudication Section.*** 5. This Court is not merely called upon to determine whether people occupy land, but it must determine which land they occupy. The Plaintiffs relied heavily upon survey maps, and the Valuation report prepared by ***PW2,*** who expressly testified that he is a registered Valuer and not a surveyor. 6. The evidential value of the survey maps depends upon proper interpretation by a ***qualified Surveyor*** or the ***Land Registrar*** capable of explaining the methodology employed, reconciling them with the ***adjudication maps*** relied upon by the Defendants, and demonstrating how the disputed portions fall within the Plaintiffs’ registered parcels. 7. No such witness was called, and therefore the Court is unable to resolve the competing boundary claims solely on the basis of the documentary maps placed before it. 8. While ***PW2*** produced the ***Valuation report*** quantifying the alleged loss occasioned by the encroachment, he candidly admitted during cross-examination that he is a registered Valuer and not a licensed surveyor. His mandate was therefore limited to assessing the value of the alleged ***encroachment***, and not to determining the location of the disputed boundaries. His report necessarily proceeded on the assumption that the encroachment had already been established. It could not, in itself, constitute expert evidence proving that the Defendants had encroached upon the Plaintiffs’ registered parcels. 9. The Court notes that previous proceedings had allegedly resulted in survey work being undertaken by the ***District Surveyor***. If indeed the survey established the Plaintiffs’ boundaries and demonstrated encroachment by the Defendants, nothing would have been easier than calling the surveyor or producing an authenticated survey report explaining the extent of that encroachment. ***DW1*** relied upon the ***Notice declaring*** the ***Ntulele Adjudication Section,*** the adjudication registers and the judgment in ***Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others****.* 10. Those documents establish that the ***Ntulele Adjudication Section*** exists and that the adjudication process was upheld. They do not establish that parcels ***CIS MARA/NAILOKKILOK/85 to 91*** overlaps into that adjudication section. Like the Plaintiffs, the Defendants failed to call a ***Surveyor*** capable of overlaying the cadastral maps for the registered parcels against the adjudication maps to demonstrate the alleged overlap. 11. The Court therefore finds itself confronted with two competing assertions, neither of which is supported by technical evidence with the Plaintiffs asserting that the Defendants occupy their registered parcels of land, and the Defendants asserting that they occupy the ***Ntulele Adjudication Section.*** 12. The Court is alive to the provisions of ***Section 18(2*)** of the **Land Registration Act,** which provide that courts shall not determine a boundary dispute unless the boundary has first been determined in accordance with that Act. 13. Although the parties framed the dispute as one of trespass, the dispute is essentially one concerning the identity and location of the land occupied by the Defendants. While the Plaintiffs maintain that the occupation falls within their registered parcels of land, the Defendants contend that their occupation falls within the ***Ntulele Adjudication Section***. Resolving that controversy required cogent technical evidence identifying the precise location of the disputed occupation in relation to the Plaintiffs' registered parcels of land and the ***Ntulele Adjudication Section.*** 14. The foregoing finding is not intended to diminish the sanctity of the Plaintiffs’ registered titles. Indeed, the Plaintiffs have demonstrated, to the satisfaction of this Court, that they are the registered proprietors of the suit properties. Equally, the Court does not lose sight of the fact that the Defendants have demonstrated a long history of occupation of the disputed area, and have produced documents evidencing the existence of the ***Ntulele Adjudication Section*** together with the adjudication register. 15. The difficulty, however, is that neither party placed before this Court the technical evidence necessary to reconcile the two competing claims. Whereas the Plaintiffs insisted that the Defendants occupy portions of their registered parcels of land, the Defendants maintain that they have always occupied land falling within the ***Ntulele Adjudication Section***. In the absence of a ***survey report or expert evidence*** demonstrating the precise location of the disputed boundary, the Court would be engaging in speculation were it to conclude that either party had established its respective position. 16. Therefore, it appears to this Court that the dispute before it is not, strictly speaking, one of trespass in the ordinary sense. Rather, it is fundamentally a dispute concerning the location of the boundary between the Plaintiffs’ registered parcels of land, and the ***Ntulele Adjudication Section***. That question cannot be satisfactorily resolved on the basis of oral testimony alone. It calls for technical evidence capable of demonstrating, with precision, where the Plaintiffs’ registered parcels of land, end and where the ***Ntulele Adjudication Section*** begins. 17. Having found that the Plaintiffs have failed to discharge the burden of proving that the Defendants are in occupation of their registered parcels of land, the Court now turns to the remedies sought. 18. The Plaintiffs seek a permanent injunction restraining the Defendants from *entering, occupying or interfering with the suit properties, an order of eviction, mesne profits from January 2003 until vacant possession is given, costs of the suit and interest.* 19. These remedies are predicated upon one fundamental finding, namely that the Defendants are unlawfully occupying the Plaintiffs’ land. However, having found that the Plaintiffs have not proved trespass on a balance of probabilities, therefore, it follows that the principal remedies sought cannot issue. 20. A permanent injunction is a final equitable remedy issued upon proof of the infringement of a legal right. While the Plaintiffs undoubtedly possess proprietary rights over the suit properties by virtue of their registration, the Court has not been satisfied that those rights have been infringed by occupation of the Plaintiffs’ land by the Defendants. The Court cannot restrain conduct that has not been proved to amount to an infringement of the Plaintiffs proprietary rights. 21. Similarly, the prayer for eviction cannot succeed. An eviction order is among the most drastic remedies available in land litigation. Eviction has the effect of permanently removing persons from land they occupy. Such an order cannot be granted on the basis of competing assertions regarding the location of boundaries. 22. The Court must first be satisfied that the land occupied by the persons sought to be evicted forms part of the Plaintiff’s registered property. In the present case, that foundational fact has not been established. 23. To grant an eviction order in the circumstances of this case would expose the Court to the real possibility of evicting persons from land that may ultimately be found to lie within the ***Ntulele Adjudication Section.*** Equally, refusing eviction does not amount to a determination that the Defendants are lawfully entitled to the suit properties. It merely reflects the Court’s finding that the Plaintiffs have failed to prove the factual basis upon which the order is sought. 24. ***Section 2*** of the ***Civil Procedure Act*** defines mesne profits as the profits which a person in wrongful possession of property actually received or might with ordinary diligence have received. The operative phrase is “***wrongful possession”.*** Before mesne profits can be awarded, the Court must first determine that the Defendant was in wrongful occupation of the Plaintiff’s property. 25. The Plaintiffs relied upon the ***valuation report*** prepared by ***PW2 to*** quantify the alleged losses arising from the Defendants’ occupation. However, PW2 candidly admitted that he is a ***Valuer*** and not a ***Surveyor.*** Consequently, while his report attempted to quantify the value of the alleged encroachment, it could not establish the foundational fact that the occupation complained of fell within the Plaintiffs’ parcels. 26. Without proof of wrongful occupation, the ***valuation report*** becomes incapable of sustaining a claim for mesne profits. The Court is therefore unable to award mesne profits. 27. Accordingly, the Plaintiffs have failed to prove their entitlement to the remedies sought in the Plaint. 28. The ***Counterclaim*** stands on no better footing. The Defendants seek declarations that the boundaries of parcels ***CIS MARA/NAILOKKILOK/85–91*** overlap into the ***Ntulele Adjudication Section,*** rectification of those boundaries, and a permanent injunction restraining the Plaintiffs from interfering with their occupation. 29. Like the Plaintiffs’ claim, the ***Counter-claim*** is founded upon a factual assertion that required proof. The Defendants were required to establish, by cogent evidence, that the Plaintiffs’ registered parcels of land indeed extend into the ***Ntulele Adjudication Section.*** 30. While ***DW1*** produced the ***Notice d***eclaring the ***Ntulele Adjudication Section,*** the adjudication register and the Judgment in ***Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others,*** those documents do not answer the central question before this Court. They establish the existence of the adjudication section. The said documents neither establish where the common boundary nor demonstrate that ***parcels CIS MARA/NAILOKKILOK/85 - 91*** overlap into that adjudication section. 31. Indeed, just as the Plaintiffs failed to call a ***Surveyor*** to prove trespass, the Defendants equally failed to call a ***Surveyor*** capable of comparing the cadastral maps of the registered parcels with the adjudication maps. 32. Having analyzed the evidence as above, the Court finds and holds that it The is therefore left with two competing narratives, which are unsupported by technical evidence. 33. The burden of proving the ***Counter-claim*** rested squarely upon the Defendants by virtue of ***Sections 107 and 109*** of the ***Evidence Act***. That burden has not been discharged, and equally the burden to prove the claims laid squarely with the Plaintiffs, which burden was not discharged on the required standard of balance of probabilities. 34. The Court also notes that the Judgment in ***Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others*** did not determine the proprietary rights of the parties before this Court, nor did it declare that the Plaintiffs’ registered parcels of land unlawfully overlap into the ***Ntulele Adjudication Section***. The reliance placed upon that decision is therefore misplaced to the extent that it is presented as conclusive proof of the overlap alleged in this suit. 35. Consequently, this court finds and holds that the the Defendants have equally failed to prove their ***Counter-claim*** on a the required standard of balance of probabilities. Without first resolving that boundary through competent technical evidence, this Court cannot confidently pronounce either party’s right. 36. The final issue relates to costs. The law on costs is found in ***Section 27(1***) of the ***Civil Procedure Act,*** which provides that costs shall follow the event unless the Court, for good reason, orders otherwise. The provision vests the Court with discretion, albeit a judicial one, to determine by whom and to what extent costs should be paid. 37. Ordinarily, a successful litigant is entitled to costs. However, the discretion on costs must always be exercised judiciously, taking into account the circumstances of each case, the conduct of the parties, the nature of the dispute, and the overall interests of justice. As was observed by the Court of Appeal in ***Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR****,* although costs ordinarily follow the event, the Court retains discretion to depart from that principle where the circumstances justify such departure. 38. In the present case, neither party has substantially succeeded. While the Plaintiffs established that they are the registered proprietors of the suit properties, they failed to prove that the Defendants’ occupation falls within those parcels so as to sustain their claim for trespass, eviction, permanent injunction and mesne profits. 39. Conversely, although the Defendants established the existence of the ***Ntulele Adjudication Section*** and produced the ***adjudication register*** together with the Judgment in ***Napetao Ole Manangoi & 6 Others v Attorney General & 11 Others,*** they equally failed to prove that the Plaintiffs’ registered parcels of land overlap into the ***adjudication section*** or that they are entitled to the declaratory orders sought, injunctive and rectification orders sought in the ***Counter-claim***. 40. What emerges from the evidence is that this dispute is rooted in a long-standing disagreement over the location of the common boundary between the Plaintiffs’ registered parcels of land, and the ***Ntulele Adjudication Section***. Unfortunately, neither party availed the technical evidence necessary to enable the Court to conclusively determine that issue. The result is that both the ***Plaintiffs’ claim*** and the ***Defendants’ Counterclaim*** fail for want of proof. 41. For the above reasons, this Court finds and holds that it would not be just to burden either party with the costs of the proceedings. The ends of justice would be better served by directing each party to bear its own costs. 42. In light of the foregoing analysis, the Court makes the following orders: 43. . ***The Plaintiffs’ plea that the Defendants’ Counterclaim is statute-barred is hereby dismissed.*** 44. ***The Defendants’ plea that the Plaintiffs’ suit is statute-barred is likewise dismissed.*** 45. ***The Plaintiffs have failed to prove, on a balance of probabilities, that the Defendants trespassed upon land parcels CIS MARA/NAILOKKILOK/85, 86, 87, 88, 89, 90 and 91.*** 46. ***Consequently, the Plaintiffs’ suit is hereby dismissed.*** 47. ***The Defendants have equally failed to prove, on a balance of probabilities, the allegations contained in their Counterclaim.*** 48. ***The Defendants’ Counterclaim is hereby dismissed.*** 49. ***Each party shall bear its own costs of the suit and the Counterclaim*** ***It is so ordered*.** **Dated, Signed and Delivered Virtually at Narok this 29th Day of June 2026.** **L. GACHERU** **JUDGE.** ***Delivered online in the presence of:*** ***Elijah Meyoki – Court Assistant*** ***Mr. Muthaura Kiome H/B for Memusi for the Plaintiffs.*** ***Mr. Barasa for the Defendants.*** **L. GACHERU** **JUDGE.**