https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4047

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC CASE No. 236 OF 2016** **JOHN MALAKWEN** …………………………………………… **1ST PLAINTIFF** **ANDREW KIBIWOT KULEI** ………………………………… **2ND PLAINTIFF** **LUKE KIKOGEIKULEI** ……………………………………… **3RD PLAINTIFF** **MARIA CHEPKONGA TIRETO** ……………………………. **4TH PLAINTIFF** **VERSUS** **FRANCIS RONO** ……………………………………………. **1ST DEFENDANT** **JONATHAN CHELIMO** ……………………………………. **2ND DEFENDANT** **HENRY KAPTUGEN** ………………………………………. **3RD DEFENDANT** **KIPTALAM RUTTO** ……………………………………….. **4TH DEFENDANT** **LAND REGISTRAR UASIN GISHU** …………………….. **5TH DEFENDANT** **THE HON ATTORNEY GENERAL** ……………………… **6TH DEFENDANT** **JUDGMENT:** 1. The Plaintiffs’ case herein is contained in the plaint dated 22.12.2006 and Further and Further Amended Plaint dated 23rd October, 2015 wherein they seek the following reliefs against the Defendants:- 2. A permanent injunction against the Defendants from occupying, demarcating and/or trespassing on Land parcels numbers L.R. KAPTAGAT/KAPTAGAT BLOCK 2 (MOSOP)131, 132, 120 and 17 3. A declaration that the amended map and/or plan in relation to new suit parcels of land being L.R. KAPTAGAT/KAPTAGAT BLOCK 2(MOSOP) 120, 131 and 132 in favour of the 1st, 2nd, 3rd and 4th Defendants is unlawful and/or illegal. 4. An order for rectification of Title Deeds on land parcels L.R. KAPTAGAT/KAPTAGAT BLOCK 2(MOSOP)/77-(17.6 26.1 Acres), 78(26.1) and 132 in favour of the Plaintiffs. 5. Costs of this suit. 6. The Plaintiffs’ case is that they are the registered owners of the parcels of land known as L.R. No. KAPTAGAT/KAPTAGAT BLOCK 2 (MOSOP)/ 76, 78 & 132, 143 & 17 respectively (the suit property herein). That the new numbers being 131 & 77 for the 1st Plaintiff; 132 & 78 for the 2nd & 3rd Plaintiffs and 17 & 120 for the 4th Plaintiff. The Plaintiffs explained that they were members of Mosop Holders Group and each held 26.1 Acres, 17.6 Acres and 57.4 Acres respectively. That in 1969, they appointed surveyors and agreed to donate 2 - 5 Acres each for public utilities. 7. The Plaintiffs aver that when the new plan emerged in the early 1990s, the Defendants surfaced claiming a share of the Plaintiffs’ portions without their consent or authority. They accused the 1st - 4th Defendants of colluding with the 5th Defendant to come up with a new plan and amending it without their knowledge. That the new plan and Registry Index Map (RIM) have unexplained discrepancies in relation to the survey report conducted by the Plaintiffs’ surveyors on 17.06.2011, and they outlined the particulars of the alleged discrepancies. 8. They further accused the 1st - 5th Defendants of colluding to secretly and fraudulently demarcate the land without their knowledge and consent per the new amended map and plan, and they also set out the particulars of the said fraud. The Plaintiffs claim that the Defendants were surveying their land and they were apprehensive that the 1st - 4th Defendants would forcefully enter and/or trespass on the land and demarcate it to the Plaintiffs’ detriment. 9. The 1st - 4th Defendants filed an Amended Defence dated 17th December, 2014. The Defendants denied that the Plaintiffs are the registered owners of the suit properties. The Defendants also denied the acreages claimed, and averred that the Plaintiffs’ acreages were previously 20 Acres, 10 Acres and 40 Acres for the 1st - 4th Plaintiffs respectively. The Defendants averred that 1share in the group was equivalent to 10 Acres, thus the 1st Plaintiff who held 2 shares was entitled to 20 Acres. That the 2nd and 3rd Plaintiffs’ father held 1 share, worth 10 Acres and the 4th Plaintiff held 4 shares worth 40 Acres. 10. The Defendants alleged that the members of the Group each agreed to deduct 1 Acre from each share for public utilities, thus the Plaintiffs’ Acreages reduced to 18 Acres, 9 Acres and 36 Acres. The Defendants averred that the 1st Defendant is an original member and secretary of the group holding 1 share, and after deduction, became registered owner of 9 Acres. That the 3rd Defendant’s father, the late Kaptugen Kipkeny, held 1 share equivalent to 9 Acres after deduction, which is still registered in his father’s name. That the 4th Defendant was also an original member holding 1 share equivalent to 9 Acres after deduction and is registered as the owner thereto. 11. The Defendants averred that parcel no. 143 is unknown to them, whereas parcel nos. 131 and 132 are the members’ farms. They denied the allegations of fraud and discrepancies and the particulars thereon set out in the Plaint. Further, that the only survey the Defendants know of was conducted in 1982 pursuant to an agreement entered into by the members and the surveyors, which has not been changed to date. The Defendants also denied the allegation that they surveyed the Plaintiffs’ land or that they had any intention to forcefully enter or trespass thereon to demarcate it. The Defendants termed the Plaintiffs’ claim incompetent and the verifying affidavits void. They prayed that the present suit be dismissed with costs to them. 12. The Plaintiffs filed a Reply to the 1st - 4th Defendants Defence dated 3rd October, 2008. The Plaintiffs reiterated the averments in their Plaint. They termed the Defence fatally defective and ought to be struck out, and judgment entered in favour of the Plaintiffs as prayed in the Plaint. 13. The 5th and 6th Defendants filed a Statement of Defence through the Office of the Attorney General. The 5th and 6th Defendants denied the allegation that the Plaintiffs were the registered owners of the suit properties. They denied colluding with the 1st - 4th Defendants to amend the existing plan and RIM. They denied knowledge of any discrepancy as alleged. They also denied knowledge of the existence or veracity of the alleged surveyor’s report, and the particulars of discrepancies pleaded thereunder. They also denied the alleged fraud and attendant particulars pleaded thereunder. 14. In the alternative, the 5th and 6th Defendants averred that the suit was incurably defective, incompetent, bad in law and discloses no reasonable cause of action. They also denied the jurisdiction of the court. Further, that the 2nd - 4th Plaintiffs were not members of Mosop Farm or administrators of the estates of the registered owners, thus have no legal capacity to institute and maintain the suit. They explained that prior to conversion to the Registered Land Act (RLA), the suit properties were registered as No. IR 11127/3 in the name of Mosop Farm. That they received a register of members from the officials of Mosop Farm for purposes of sharing and registration of the land to its members. 15. The 5th and 6th Defendants claim that they wholly relied on the said register of members in opening green cards and issuance of titles to the members of Mosop Farm. That they issued titles for parcel no. Kaptagat/Kaptagat Block 2(Mosop)17 to Kiboit Tireti; Plot No. 77 to John Malakwen Cheptoo; plot 78 to Joseph Kiplagat Kulei; plot 120, 131 & 132 to the Government in trust for Mosop Farm; plot 143 to Kiberenge Serera. That only the 5th Defendant has the legal mandate to maintain/approve alteration of boundary lines and prepare new editions of RIM or register, and any contrary report without the 5th Defendant’s approval is not conclusive. That any existing RIM or register other than the one maintained by the 5th Defendant, were not generated vide the 5th Defendants statutory powers, and the 5th Defendant is not party to their existence. They thus asked that the Plaintiffs’ suit be dismissed with costs. 16. In their Reply to the 5th and 6th Defendant’s Defence dated 9th January, 2015 the Plaintiffs reiterated the contents of their Plaint. They denied the contention that the suit was inter alia incurably defective, speculative or that it disclosed no reasonable cause of action. They further denied that they lacked capacity to institute the suit or that the court lacked jurisdiction. They averred that the Defence was fatally defective in form, was poorly pleaded and contains mere denials devoid of triable issues, and that it is aimed at delaying the hearing of the suit. They asked that the 5th and 6th Defendant’s Defence be dismissed with costs and judgment be entered for the Plaintiffs. **Hearing and Evidence;** *The Plaintiffs’ Case;* 1. Hearing of the matter commenced on 2nd February, 2021. The Plaintiffs called Luka Kipkosgei Kipkulei, the 3rd Plaintiff, who testified as PW1. He adopted his witness statement dated 27.02.2015 as his evidence in court. He expressed his intention to remove parcel nos. 76 and 143. He testified that he had letters of administration allowing him to institute the suit which he produced as PEXb1. He testified that they were given parcel no. 78 measuring 17.6 Acres and were issued with a title, which he produced as PEXb2. He confirmed that the area list indicates plot no. 78 belongs to Joseph Kipkulei. PW1 further admitted that the 1st - 4th Defendants were officials of Mosop Farm, Kaptagat originally known as LR 11127/3. He reiterated that there were discrepancies between the map and the ground area. 2. On cross-examination by Mr. Okara, PW1 testified that he was not a member of Mosop Farm, but his father was. That his father informed him the land was bought in 1969, but he did not know when members started settling on the farm or when subdivision was done. He stated that the 2nd Defendant was his brother, and that their father was allocated parcel no. 78 measuring 17.6 Acres. He further confirmed that the 1st Defendant was the secretary, but could not tell which parcels the 1st, 2nd and 4th Defendants were allocated. PW1 was also not aware how much was to be deducted for the public utilities. Further, that there are other people living on the farm who are not parties to the suit. PW1 testified that the 1st Defendant had subdivided 5 Acres of their land on behalf of the group without their consent, although he was not on the land. He clarified that the 2nd and 3rd Defendant are deceased. He conceded that he had not provided any map for the court to peruse. 3. PW1 was cross-examined by Mr. Odongo and he testified that Mosop Farm was subdivided in 1994 when he was 5 years old, thus he was not involved in the exercise. That he neither knew the number of Mosop Farm members nor how many plots were allocated to the members. He testified that plot no. 78 allocated to Joseph Kulei measured 12 Acres in 1994 but should be 17.6 Acres on the ground. He admitted that there was a survey done in the 1990s but he did not have the report in court. He testified that plot nos. 132 and 78 were allocated at the same time, thus it is not possible that plot no. 132 was entered from plot no. 78. He added that if plot no. 78 was subdivided, then it should have created other numbers, not just plot 78. 4. On re-examination, PW1 testified that he was in court on behalf of his deceased father, Joseph Kulei. He testified that plots for public utilities were indicated on the area list. He asked for judgment as prayed in the Plaint. 5. Maria Chepkonga Tireito testified on oath as PW2 and adopted her witness statement dated 9.03.2015 as her evidence in-chief and opted to rely on the bundle of documents filed on 10.03.2015. PW2 testified that the suit property was surveyed and her share was found to measure 57 Acres. PW2 told the court that the land was bought by a group which her deceased husband was registered as a shareholder. She testified that she is yet to receive title since her husband refused to have title for less than the 57 Acres. PW2 was referred to the letter dated 12.01.1973 attached to the chamber summons dated 22.12.2006 and she testified that it shows the amounts contributed by each member. PW2 told this court that her husband contributed KShs. 9,000/-and was given 6 shares and his name appeared at No. 238. PW2 confirmed that she had obtained a Grant over her husband’s estate which she produced as PEXB4, and asserted that she did not want any portion hived off her share. She testified that they were not called to any meeting where the register was amended. 6. PW2 was cross-examined by Mr. Okara and she clarified that the suit property was purchased by a group called Mosop Farm, where her husband was a member. PW2 could neither tell when the land was purchased nor when the shareholders started settling on it. She also could not recall when the land was subdivided or the acreage that 1 share was equivalent to. PW2 could also not tell how much land each shareholder contributed for public utilities. PW2 conceded that although she had claimed 60 Acres in her witness statement, her husband was given Plot No. 17 measuring 57 Acres as some Acres were given for public utilities. PW2 said she was unaware that her land further reduced to 45 Acres. She reiterated that her husband had paid KShs. 9,000/-, but could not recall how many Acres her husband was allotted. 7. PW2 was then cross-examined by Mr. Odongo and she testified that she was not a member of Mosop Farm and she did not know the leaders of the said group. PW2 testified that her husband was not one of the members of Mosop Farm. PW2 was referred to a members register filed by the Attorney General on 7.1.2015 (DMFI1) and the Green Card for Parcel No. 17, and she testified that her late husband, Kiboit Tireito, had been given 17.130 Hectares. PW2 confirmed that the land was registered to her husband on 26.01.2021. She claimed that she had filed the suit on behalf of her husband’s estate, and that she was not aware the suit was in her name. 8. On re-examination, PW2 testified that parcel 17 was registered on 06.06.1994. She testified that she is occupying the 57 Acres, yet according to the title, she is supposed to get 42 Acres. PW2 could not recall when they settled on the suit property. She says that nobody has ever come to claim any part of the 57 Acres she is occupying. 9. The Plaintiffs’ third witness was Robert Kiprop Mistei, a Land Surveyor, who was marked as PW3. He testified that he had prepared a report dated 18.04.2011. That he had been asked to confirm three parcels namely L.R. No. Kaptagat/Kaptagat Block 2(Mosop)/77, 78 and 17. PW3 testified that he had a Registry Index Map (RIM) that comprises of Plot No. 17 and 120 which are occupied by one person. He explained that according to the said RIM, parcel 78 is 78 and 138, whereas parcel 77 reflects 77 and 131. PW3 produced the report as PEXb3 and the receipt for the report as PEXb3(b) and the RIM as PEXb4. 10. When he was cross-examined by Mr. Odongo, PW3 testified that he was instructed by Advocate Kigen in 2011. PW3 explained that he had used the RIM and had conducted searches, although he had not been shown titles for parcel 77 and 78. He testified that he had met the owners of parcel nos. 77, 78 and 138, but he did not issue notices to the owners on neighbouring plots. PW3 was shown the register for Parcel 17 (DMFI1) and testified that according to the said document, parcel 17 measures 17.13 Hectares and is owned by Mr. Tireito. PW3 testified that if Parcel 17 had been amended, the RIM would have shown the subdivision. PW3 confirmed that there were other parcels that had been registered as members farms. On being referred to his report, PW3 admitted that the changes therein had not been countersigned, but stated that he was not the one who made the alterations. 11. PW3 was not cross-examined by Mr. Okara, but on re-examination, he testified that parcel no. 120 had not been allocated to anyone, while parcel nos. 17 and 120 were occupied by one individual. He further testified that parcel nos. 78 and 131 are also occupied by one individual. PW3 was once again referred to his report and he stated that he countersigned all alterations. 12. Thereafter, the 1st Plaintiff herein, Malakwen Cheptoo, testified on oath as PW4. He adopted his witness statement as his evidence in-chief, and went on to state that he owns parcel no. 77 measuring 26 Acres. He testified that he started living on the plot in the year 1971. He informed the court that he had a dispute with Francis Rono and Jonathan Chelimo. PW4 asked the court to allow his claim. 13. On being cross-examined by Mr. Okara, PW4 testified that both Francis Rono and Jonathan Chelimo died. That however, one Kiptalam Ruto who took 5 Acres of his property is still alive. He explained that he occupies 26 Acres. He further explained that they purchased the land as a group, and it was subdivided and shared amongst shareholders. He claimed that he was one of the trustees of the group, whereas Malakwen was not an official of the group. 14. On further cross-examination by Mr. Odongo, PW4 testified that he had obtained title to his plot no. 77 in 2002. That the titles indicates that he has 21 Acres yet he had never complained to any investigation agency. 15. Under re-examination, PW4 testified that although the title indicates that he has 21 Acres, he is occupying 26 Acres. 16. The last witness to testify on behalf of the Plaintiffs was one David Kimutai Boit, who was marked as PW5. He told the court that he is one of the administrators of the estate of his father, the late Charles Kiboit Teleito, who bought parcel no. 77 at Mosop. PW5 indicated that his brothers who are the ones on their father’s land are occupying 57 Acres, yet the title shows that the land measures 42 Acres. He states that his brothers have no issues with their neighbours. 17. Upon cross-examination by Mr. Okara, PW5 testified that his father bought 60 Acres but 3 Acres went to public utilities. He confirmed that the 1st and 2nd Defendants died, and he did not know the 3rd and 4th Defendants. He however stated that he came to know from court records that the 4th Defendant was an official of Mosop Farm. He also claimed that the 4th Defendant was not a shareholder of Mosop Farm. 18. PW5 was further cross-examined by Mr. Odongo and he testified that the land was bought by a group whose members agreed to share it per the register of members of Mosop Farm. He testified that from his late father’s records of the farm, his father’s land was parcel 17 whose acreage as shown on the register is 17.130 Hectares. He stated that parcel 17 was registered at the land Registry but he had never seen its green card. On being shown the green card for parcel no. 17, PW5 testified that the register was opened on 06.06.1994 and the acreage is 17.130 Hectares. He confirmed that his father had no complaints and did not file any case during his lifetime. PW5 claimed that he did not know the parcels neighbouring parcel no. 77, or that the additional land that his father had was members land. PW5 denied the claim that his father was entitled to 17.130 Hectares. 19. When PW5 was re-examined, he testified that his father had died by the time his title was issued on 26.01.2010. PW5 explained that his father bought the land but it is currently occupied by his brothers. He testified that his father was a member of Mosop Farm, which was purchased in 1969. He admitted that there was a dispute over the land with their neighbours. This marked the end of the PW5’s testimony, upon which the Plaintiffs closed their case. *The 4th Defendant’s Case;* 1. The 4th Defendant, Kiptalam Ruto, testified in support if his claim as DW1. He informed the court that he is a member of Mosop Farm which had 100 members and he is no. 89. DW1 testified that there are people who had grabbed members land and had sued them. DW1 testified that his land had not been grabbed. According to DW1, the Plaintiffs, like everyone, have their own land as well as title in their own names. That they therefore have no claim over the suit land. He further states that they entered the land in 1973 and everyone was given his own entitlement of the land they hold. 2. On cross-examination by Mr. Ndege, DW1 testified that everyone got land according to the amount they paid, and that his share was KShs. 1,500/- for 10 Acres. DW1 explained that 2 shares was worth 20 Acres and 3 shares 30 Acres. DW1 was referred to the list of shares and reiterated that everyone had their own share and title. DW1 explained that there was a ballot for those who had completed their share, a survey conducted in 1972 and they went to live on the land in 1973. DW1 further explained that the parcels range from parcel nos. 1 - 142, and that there were parcels of land for public utilities for which titles were issued. 3. DW1 was also referred to the RIM (PEXb4) and testified that the land parcels were following each other consecutively. DW1 said he did not know that parcel no. 77 and 78 were subdivided and inserted no. 131 and 132 respectively. DW1 told the court that there were 142 members thus each got their share and he also got his land. DW1 states that he did not know why the Plaintiffs are complaining. He added that the Plaintiffs had their parcels and titles, and that they must have taken their title deeds, but was not aware that they had not signed to show that they had indeed taken their titles. DW1 claims that he does not know the acreage of parcel no. 17. That no member had complained that his land has been taken. Further, that everyone was given their land according to their share and they were all satisfied, save for the 4 Plaintiffs herein. He contends that if the Plaintiffs are given their land and titles, everyone will be satisfied. 4. Under re-examination, DW1 reiterated that he paid KShs. 1,500/- for his share, and thereafter, everyone balloted and got his own number. He claimed that there were regulations detailing how the land was to be shared. This marked the end of DW1’s testimony and the close of the 4th Defendant’s case *The 5th & 6th Defendants’ Case;* 1. Diana Agunda, a Land Registrar at Uasin Gishu County testified under oath on behalf of the 5th and 6th Defendants as DW2. She produced certified copies of the documents in the 5th and 6th Defendants’ List of Documents as DEXb1-8 respectively. DW2 explained that before distribution, the land was parcel no. IR 11127/3. That the members registers emanated from the register of the farm, which was handed over to Nairobi for conversion and distribution. DW1 expounded that upon conversion, once a member goes to their office, they apply and are given a title. 2. DW2 testified that they act on the strength of the members register, even though they are not privy to it. He added that if there are any discrepancies, the member visits the survey office, who then visit the ground to confirm. DW2 stated that they do not rely on private surveyors. She testified that she had not seen any complaint regarding any discrepancies by the Plaintiff vis-à-vis the title and acreage. DW2 clarified that all the green cards were based on the members register provided. 3. DW2 was cross-examined by Mr. Ndege and he reiterated that in case of discrepancies, the surveyor visits the land and confirms the acreage. DW2 testified that he had seen no correspondence that the land surveyor and the land registrar were to visit the land, or any report showing that they actually visited. DW2 was also unaware that a private surveyor visited the land and filed a report. DW2 affirmed that the members register was signed by the officials but not accompanied by any minutes. DW2 explained that in the register, the parcels were numbered 1 - 143 consecutively. That aside from parcel no. 120, 131 and 132, all other parcels had been allocated. Further, that parcel nos. 142 and 143 had not been allocated to any member. 4. DW2 further stated that the register of members goes upto no. 141. She further testified that as per the green card produced, parcel no. 143 was allocated to Kiberenge Serera, and explained that it was a resultant subdivision of plot no. 7. DW2 testified that she did not know that parcel no. 131 was hived from parcel 77. In addition, she testified that parcel nos. 17 and 77 were collected, and parcel no 78 was collected from Joseph Kipkulei. DW2 informed the court that they had received no complaints over parcel nos. 17, 77 and 78 except the order in no. 77. 5. DW2 stated that all other parcels had not had any complaints except the ones in this case. DW2 explained that when a government surveyor visits the land and confirms the acreage on the ground, they thereafter do a report and the District Surveyor instructs the Land Registrar to amend the record as per the ground acreage. She testified that parcel nos. 120 and 131 are indicated as members farms. She admitted that the members in occupation are the owners. DW2 averred that if there is any discrepancy, the same can be amended if they follow the process. 6. On re-examination, DW2 testified that a title was issued for parcel no. 77 to John Malakwen on 11.08.2010. That title to parcel no. 78 was issued to Joseph Kiplagat Kimeli on 11.08.2010. DW2 had no report showing that there was a visit on the suit parcels. She added that if there is a discrepancy, the surveyor notes it and notifies them to rectify it. She explained that the register showed that plot 27 was allocated to Kiberenge Serera, and thereafter it was closed on subdivision to produce nos. 143 to 145. That Plot no. 143 was constructed on the documents provided. She reiterated that they depend on the members register to register members. This marked the end of DW2’s testimony, as well as the close of the 5th & 6th Defendants’ case. **Submissions:** 1. At the close of the hearing, the court invited the parties to file their final written submissions on the case. The Plaintiffs filed submissions dated 20th February, 2026 while the 1st - 4th Defendants filed submissions dated 11th May, 2026. **Analysis and Determination:** 1. I have considered the pleadings, the testimonies of the witnesses and the evidence tendered, as well as the submissions filed by the respective parties, and have identified the following as the key issues arising for determination:- 2. *Whether the Plaintiffs are entitled to the permanent injunction sought;* 3. *Whether the amended map and/or plan in relation to new suit parcels of land being L.R. Kaptagat/Kaptagat Block 2(Mosop) 120, 131 and 132 is unlawful and/or illegal; and* 4. *Who shall bear the costs of this suit?* 5. **Whether the Plaintiffs are entitled to the permanent injunction sought?** 6. There is no dispute that the land known as LR No. 11127/3 was bought by the group known as Mosop Farm. The parties also agree that the land was distributed to the members and thereafter, it was surveyed and subdivided. The current dispute concerns the acreages of the portions curved out of the mother title to which the Plaintiffs are entitled. 7. In this regard, the Plaintiffs herein claim that they held 26.1 Acres, 17.6 Acres and 57.4 Acres respectively comprised in LR No. Kaptagat/Kaptagat Block 2(Mosop)/17, 77 and 78. They however claim that the Defendants have caused their land to be illegally demarcated to create LR Nos. Kaptagat/Kaptagat Block 2(Mosop)/120, 131 and 132 in favour of the 1st - 4th Defendants. 8. Kiptalam Ruto (the 4th Defendant), who testified as DW1, told this court that he was an official of the group, and this has been confirmed by PW3. This court has been informed by DW1 that one (1) share in the farm, worth KShs. 1,500/-, was equivalent to 10 Acres of land. From the list of shareholders shown to this court, Joseph K. Kulei paid KShs. 1,500/- and was allocated 1 share, John Malakwen Cheptoo paid KShs. 3,000/- and was allocated 2 shares, whereas Kiboit Tireito was to pay KShs. 9,000/- and be allocated 6 Acres. 9. From the above information, it is evident that for the 1st Plaintiff who purchased 2 shares, he was entitled to 20 Acres. If indeed 1 Acre was removed from every share, the 1st Plaintiff should be holding 18 Acres. However, in the register of members, the 1st Plaintiff, John Malakwen Cheptoo is at no. 77 and he was allocated 8.463Ha equivalent to 20.91 Acres. This information is reflected in the title deed dated 11.08.2010 produced before this court by the 5th and 6th Defendants. From the evidence produced before this court, it is clear that the 1st Plaintiff holds 0.91 Acres more land despite his claims that his land was reduced for public utilities. 10. The 2nd and 3rd Plaintiffs are claiming the share of Joseph Kiplagat Kulei, their late father. The 2nd and 3rd Plaintiffs’ father is said to have purchased one (1) share, and therefore ought to have been allocated 10 Acres. Upon reduction of the 1 Acre per share for public utilities, the 2nd and 3rd plaintiffs’ father should be holding 9 Acres. However, according to the Members register, the 2nd and 3rd Plaintiffs’ father was allocated 4.852 Ha which equates to 11.989 Acres. Once more, the same information is reflected in the title deed issued on 11.08.2010. The estate of the 2nd and 3rd Plaintiffs hold 1.9 Acres more than they were entitled to even after land was allegedly reduced to cater for public utilities. 11. As regards the 4th Plaintiff, it is clear from the shareholders’ register that her late husband was to pay KShs. 9,000/-, which is equivalent to 6 shares. Had her late husband paid the said amount, he would have been entitled to 60 Acres. However, in the list of shareholders annexed to the Chamber Summons Application dated 22nd September, 2006, the late Kiboit Tireito had only paid KShs. 4,500/- leaving a balance of KShs. 4,500/-. This only entitled him to 3 shares as at the time the said list was prepared. 12. Neither the 4th Plaintiff, his widow who testified as PW2 nor PW5 who testified in support of her case told this court that the late Kiboit Tireito completed payment for the whole 60 Acres. It is clear that the KShs. 4,500/- paid only entitled the 4th Plaintiff’s husband to 30 Acres of the mother title. However, going by the members register produced herein, the name of Kiboit Tireito, the 4th Plaintiff’s late husband, appears at No. 17 and it shows that he was allocated 17.130 Ha, which as earlier indicated is equivalent to 42.329 Acres. No title deed was produced with respect to this parcel and it appears from the green card that a title is yet to be issued to him on this land. This green card does show that the 4th Plaintiff’s husband was indeed allocated 17.130Ha. 13. There is no explanation how the late Kiboit Tereito’s share increased from 30 Acres to 42.329 Acres. It is possible that the late Kiboit Tereito made further payments to clear the balance of KShs. 4,500/- recorded in the shareholder’s register, but if that is the case, no evidence of the same was availed. Therefore, there is nothing to show that the late Kiboit Tereito is indeed entitled to the 57 Acres claimed herein. 14. Notably, PW3 testified that according to his report, parcel no. 17 and 120 are occupied by one individual. On the other hand, PW2 claimed that she occupied 57 Acres instead of the 42 Acres allocated to her late husband as parcel 17. It is possible therefore that the extra acreage she occupies is what forms parcel no. 120, for which the 4th Plaintiff has no known or registrable interest in. 15. The Plaintiffs only claim that the acreages appearing on their titles and green cards, do not tally with the portions they currently occupy. DW2, the Land Registrar, Uasin Gishu County, testified that they issued the titles in accordance with the members register submitted to them. The members register, which was relied on in issuing the titles, is therefore sufficiently instructive on the acreages allocated to the Plaintiffs, and the same information is reflected in the titles issued to them. The contents of the members register were not expressly challenged in this court. 16. From my understanding of the facts and the evidence, the registers to Parcel nos. 120, 131 and 132 show that they were all opened on 06.06.1994 in the name of the Government of Kenya. It is these parcels that were referred to as members farms and this court has been told that they were set apart for public utilities. Owing to the fact that the members’ portions were to be reduced for contribution towards public utilities, the Plaintiffs clearly hold more land on their titles than they should have after the reduction. They cannot therefore claim that LR No. Kaptagat/Kaptagat Block 2(Mosop)/120, 131 and 132 were hived off of the Plaintiff’s lands. 17. Consequently, this court hereby finds that the Plaintiffs have no discernible interest over the portions registered as LR Nos. Kaptagat/Kaptagat Block 2(Mosop)/120, 131 and 132 claimed herein. 18. That being the case then, can the Plaintiffs be granted the permanent injunction sought over the parcels of land known as L.R. Kaptagat/Kaptagat Block 2 (Mosop)131, 132, 120 and 17. A permanent injunction was defined in the Black’s Law Dictionary, 9th Ed. at page 855 as an injunction granted after a final hearing on the merits. In ***Kenya Power & Lighting Co. Limited vs Sheriff Molana Habib (2018) eKLR***, the court had this to says as regards the grant of a permanent injunction:- ***“8. … A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.”*** 1. This court has found that L.R. Nos. Kaptagat/Kaptagat Block 2 (Mosop)131, 132 and 120 are registered in the name of the government, and were set aside for public utilities. The allegation that the said plots arose from the fraudulent subdivision of the Plaintiffs’ land was not proven. The Plaintiffs therefore have no rights over the parcels of land known as L.R. Nos. Kaptagat/Kaptagat Block 2 (Mosop)131, 132 and 120 capable of being protected by the grant of a permanent injunction. 2. Moreover, the Plaintiffs did not establish any interference of their proprietary rights by any of the Defendants herein to warrant the issuance of a permanent injunction against them. In any event, the Plaintiffs happen to be occupying land that actually belongs to the government and set aside for public utilities, being Parcel no. 120, 131 and 132 as confirmed by the survey report by PW3. Therefore, even the Plaintiffs have not shown that there is any activity warranting issuance of a permanent injunction, and that prayer thus fails. 3. **Whether the amended map and/or plan in relation to new suit parcels of land being L.R. Kaptagat/Kaptagat Block 2(Mosop) 120, 131 and 132 is unlawful and/or illegal.** 4. The second relief sought by the Plaintiff is a declaration that the amended map and/or plan in relation to new suit parcels of land being L.R. Kaptagat/Kaptagat Block 2(Mosop) 120, 131 and 132 in favour of the 1st, 2nd, 3rd and 4th Defendants is unlawful and/or illegal. The Plaintiffs have claimed that the Defendants colluded to create a new plan without their knowledge which has discrepancies. The Plaintiffs have alleged that the defendants actions were fraudulent and have pleaded the alleged particulars of fraud as: 5. *Secretly demarcating the suit parcels of land without knowledge of the Plaintiffs and illegally and creating new parcels being no. 120, 131 and 132.* 6. *Misrepresenting facts and particulars before the Eldoret district land registry* 7. Given the seriousness of allegations of fraud, a party alleging fraud must go beyond imaginations. Thus allegations of fraud must not only be pleaded, they must be strictly proved as was stated in ***RG Patel vs Lalji Makanji (1957) EA*** ***314***, where the court expressed itself as follows:- ***“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require prove beyond reasonable doubt, something more than a mere balance of probabilities is required”*** 1. The onus in this case was on the Plaintiffs to provide evidence to the Court of the alleged fraud, which evidence must meet the standard of proof as was underscored by the Court of Appeal in ***Central Bank of Kenya Limited vs Trust Bank Limited & 4 Others (1996) eKLR***, where the Court rendered itself as follows:- ***“The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.”*** 1. The Plaintiffs claim that the 1st - 4th Defendants colluded with the 5th and 6th Defendants to illegally demarcate their parcels of land without consent. They claim that the result of this illegal subdivision are the parcels of land known as L.R. Nos. Kaptagat/Kaptagat Block 2 (Mosop)/120, 131 and 132. According to the Plaintiffs, the Defendants’ actions were actuated by fraud, and that the Defendants further illegally amended the Registry Index Map to create these parcels in favour of the 1st, 2nd, 3rd and 4th Defendants. 2. First and foremost, as already stated, the parcels known as L.R. Nos. Kaptagat/Kaptagat Block 2 (Mosop)/120, 131 and 132 are not registered in the names of the 1st - 4th Defendants herein. The same were registered in the name of the Government of Kenya as shown in the green cards produced before this court. It is therefore not true to say that there was any collusion to illegally benefit the 1st - 4th Defendants at the expense of the Plaintiffs herein. 3. Moreover, unlike the green card for Parcel No. 43 which clearly shows that it was a subdivision of Plot No. 27, nothing on the green cards of the parcels of land known as L.R. Nos. Kaptagat/Kaptagat Block 2 (Mosop)131, 132 and 120 shows that they were subdivision of any other property. This defeats the argument that the said parcels, which were set apart for public utilities, were hived off the Plaintiffs parcels of land. 4. Secondly, I have looked at the Registry Index Map produced in this court, which I note records only two amendments. The first of these was registered on 13th September, 2018 and affected parcel nos. 1-12, which are not part of the parcels of land in dispute in this case. The second amendment is a subdivision of LR No. 11127/4 to 241-242. This was done vide MUT/UG/8701/10/19 dated 24th October, 2019. The said mutation does not concern LR No. 11127/3 which is the mother title to the suit properties herein. 5. There was no evidence produced of the alleged fraudulent RIM or amendments thereto. The Plaintiff having brought this suit claiming fraudulent subdivision of the suit properties, failed to show that the Defendants indeed colluded to illegally and fraudulently subdivide their land. The Plaintiffs claim that their land was thus fraudulently subdivided to create parcel nos. 120, 131 and 132 is therefore unsubstantiated. In addition, the said parcel nos. 120, 131 and 132 were not created for the benefit of the 1st - 4th Defendants. Prayer (b) of the Plaintiff therefore cannot issue. 6. **Who shall bear the costs of this suit?** 7. The final issue for determination is who should bear the costs of the present suit. The costs of a suit refer to the award granted to a party at the conclusion of the legal action, and proceedings in any litigation. On costs, Section 27 (1) of the Civil Procedure Act Cap. 21 Laws of Kenya provides that:- ***27. Costs*** ***(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:*** ***Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.*** 1. While it is true that costs follow the events, the above law establishes the principle that costs are awarded at the discretion of the Court. In essence, while the successfully party is entitled to an award of costs, a court may, where there are compelling reasons decline to award costs. 2. The Plaintiffs filed this suit but failed to prosecute their case successfully. As a result, the Defendants herein have emerged successful in these proceedings. No exceptional circumstances have been established to justify departure from the principles under Section 27 Civil Procedure Act. The Plaintiffs therefore must bear the costs of the present proceedings. **Orders:-** 1. In the end, the Court hereby finds that the Plaintiffs have not proved their case against the Defendants on a balance of probabilities. It follows that they are not entitled to the reliefs sought in the Further and Further Amended Plaint. Consequently, the Plaintiffs’ suit is hereby dismissed with costs to the 1st to 6th Defendants, all inclusive. 2. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **2ND** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the virtual presence of; Mr. Ndege for Plaintiffs Mr. Cheruiyot holding brief for Kimukung for 1st - 4th Defendants Mr. Kwame for the 5th & 6th Defendants Court Assistant - Laban.