https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4018

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA** **ELCL APPEAL NO. 21 OF 2024** **(FORMERLY NAKURU ELCL APPEAL NO. 12 OF 2023)** **STEPHEN KAMAU MWANGI….….………………………..…………APPELLANT** **VERSUS** **VISION AFRIKA** **HOUSING CO-OPERATIVE SOCIETY LTD.………….…..1ST RESPONDENT** **LAND REGISTRAR, NAIVASHA………………………………2ND RESPONDENT** **REGIONAL SURVEYOR, RIFT VALLEY………………………3RD RESPONDENT** **THE HON. ATTORNEY GENERAL……………………………..4TH RESPONDENT** (Being an Appeal from the Judgment of the Principal Magistrate Court of Kenya at Nakuru, Honorable K.I. Orenge, Principal Magistrate, Nakuru) dated 10th August, 2023, in Nakuru CMCC ELC NO. 127 OF 2018) **IN** **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAKURU** **CMELC NO. 127 OF 2018** **(FORMERLY NAKURU ELC CASE NO. 237 OF 2017)** **VISION AFRIKA** **HOUSING CO-OPERATIVE SOCIETY LTD.…………………...…..PLAINTIFF** **VERSUS** **STEPHEN KAMAU MWANGI….….………………………………1ST DEFENDANT** **LAND REGISTRAR, NAIVASHA………………………………2ND DEFENDANT** **REGIONAL SURVEYOR, RIFT VALLEY………………………3RD DEFENDANT** **THE HON. ATTORNEY GENERAL……………………………..4TH DEFENDANT** **JUDGEMENT** 1. Coming up for determination on Appeal is a matter which was heard and determined by Hon. I. Orenge Principal Magistrate, Nakuru in Nakuru CMELC case no. 237 of 2017 MCELC No. 127 of 2018wherein, upon considering the evidence of both parties, vide his Judgement delivered on 10th August 2023, entered judgement in favour of the Plaintiff and awarded it a sum of Kshs.400,000/- as general damages for trespass. 2. The 1st Defendant/Appellant, being dissatisfied with the whole decision of the said Judgement, has now filed the present Appeal based on the following grounds in his Memorandum of Appeal; 3. That the learned trial Magistrate erred in law in and fact by failing to establish that the Appellant had established his case on a balance of probability while the Respondents evidence on record was unsatisfactory. 4. That the learned trial Magistrate misdirected himself as to the application of Section 7 of the Law of Limitations of Actions Act. 5. That the learned trial Magistrate erred in law in and fact by failing to to give any consideration to the fact that upon the Appellant being allocated his parcel Title No. Gilgil/Karunga Block 2/258, the Appellant to date has never in any way tampered with the beacons erected by the allocating society. 6. That the learned trial Judge (sic) erred in law and fact in failing to give any consideration to the weighty issues raised in the Appellant's defence and submissions to the case. 7. That the learned trial Judge (sic) erred in law and fact in not finding that the evidence raised by the Appellant was merited. 8. That the trial Judge (sic) erred in law and in fact in failing to properly analyze the Appellant's exhibits 9. That the learned trial Judge (sic) erred in law and fact in failing to have any regard to the principle of substantive justice when dealing with the suit. 10. That the learned trial Judge (sic) in arriving at the decision took into consideration extraneous matters. 11. The Appellant thus prayed for the following orders: 12. That this present Appeal be allowed with costs. 13. That the judgment of 10/08/2023 be set aside and this court be pleased to enter judgment in favour of the Appellant by finding that the 1st Respondent did not establish a case against the Appellant. 14. That costs of this appeal and of the trial court be provided for. 15. THAT such further and/or relief to the Appellant as this honorable court may deem fit and just to grant. 16. In response, the 1st Respondent vide his Notice of Grounds dated 4th March 2026 for affirming the decision, contended that the decision ought to be affirmed upon grounds other than those relied upon by the Magistrate’s Court to the extent and in the manner and on the following grounds; 17. That the learned Magistrate ought to have taken into account the additional arguments made by the 1st Respondent (Plaintiff) that there were no sufficient pleadings and/or there was no cogent evidence adduced to support the Appellant’s (1st Defendant’s) contention that the claim for trespass/encroachment was barred by Section 7 of the Limitation of Actions Act. 18. That the learned Magistrate ought to have taken into account the additional argument made by the 1st Respondent (Plaintiff) in rejecting the Appellant’s (1st Defendant’s) invitation to apply the provisions of Section 7 of the Limitation of Actions Act on the basis that the 1st Respondent’s (Plaintiff’s) claim was exempted under the provisions of Section 26 of the Limitation of Actions Act through the consequence of a concealed mistake. 19. The 2nd, 3rd and 4th Respondents did not file any response to the Appeal. 20. The Appeal was admitted for hearing on 19th February 2026, and directions were taken for the same to be disposed of by way of written submissions, herein summarised. **Appellant's written submissions.** 1. In his submissions dated 24th March 2026, the Appellant confirmed that he was appealing a trial court judgment delivered on 10th August, 2023. The dispute concerned two adjacent parcels of land in Gilgil being his land Title No. Gilgil/Karunga Block 2/258, measuring approximately 2.21ha, since 1982 and Title No. Gilgil/Karunga Block 2/257, with a total area of 2.040ha, which the 1st Respondent purchased in 2017. 2. After giving a brief history of the matter in question, he proceeded to submit that the 1st Respondent had originally filed suit seeking an eviction, a permanent injunction, and damages, alleging that the Appellant had encroached on 0.17 hectares of their land. The Appellant contended that the claim was both factually unproven and time-barred under the statute of limitations. 3. He framed his issues for determination as follows: * + 1. Whether the Appellant has encroached on Parcel Block 2/257 2. Whether the 1st Respondent’s Claim is Statutory Time-Barred 3. Whether the Court Should Order the Re-fixing of Boundaries 4. On the first issue for determination, the Appellant submitted that he hada peaceful, longstanding occupation, having occupied his land since 1982 after having been allocated the same by Chokereria Farmers Co-operative Society and having obtained a title deed in 1989. That he had subsequently fenced his land with barbed wire and planted trees on all four corners without ever tampering with the original beacons. 5. He submitted that the 1st Respondent used flawed survey methodology when he relied on survey reports (PEXH 13 to 16) that used the Registry Index Map (RIM) to determine the alleged encroachment. Under Section 18 of the Land Registration Act, and supported by the decision in **Azzuri Limited v Pink Properties Limited [2017] eKLR,** the RIM only indicated approximate boundaries and is not a conclusive authority on exact ground boundaries. 6. That there had been lack of due diligence, as confirmed by the 1st Respondent's own witness (PW3), who admitted that they had been shown and were satisfied with the boundaries when buying the land from the original owners (the Kamata family) in 2017. That Case law dictates that buyers must perform due diligence before purchasing and cannot later claim encroachment for existing historical occupations. 7. On the second issue for determination as to whether the 1st Respondent’s Claim was statute-barred, the 12-Year limitation period, the Appellant submitted that the provisions of Section 7 of the Limitation of Actions Act, stipulate that an action to recover land cannot be brought after 12 years from the date the right of action accrued. 8. That he had beenin open, undisturbed possession of the disputed portion for 36 years before the 1st Respondent filed the suit in 2018 wherein the original owners (the Kamata family) had never raised any dispute. 9. He cited the case of **IGA -vs- Makerere University [1972] E.A 65** and **Edward Moonge Lengusuranga v James Lanaiyara & another [2019] eKLR** toargue that because the suit was filed well past the 12-year statutory limit, the claim was legally extinguished, and the trial court lacked the jurisdiction to entertain it. 10. In regard to the 3rd issue for determination as to whether the court should order the re-fixing of boundaries, he submitted that the survey reports themselves explicitly stated that this was a land claim and not a boundary dispute, meaning the matter should not have been treated as a simple boundary correction. Given that the boundaries were improperly assessed using only the RIM, and because the suit was time-barred, there was no legal trespass. Consequently, the trial court erred in awarding damages for trespass. 11. He then sought that the court findmerit in the appeal and order that: 12. The trial court judgment dated 10th August 2023 be set aside. 13. The prior decree directing the 2nd and 3rd Respondents (Land Officials) to re-fix the boundaries be set aside. 14. The appeal be allowed with costs awarded to the Appellant. **1st Respondent's submissions.** 1. The 1st Respondent through its overly lengthy submissions dated 3rd May 2026 maintained that the appeal was meritless, resting on three primary legal contentions being that; * + 1. Trespass as a "Continuing Tort" 2. The Prior Binding Decree 3. Failure of Pleadings and Evidence 4. On the first issue, that Trespass was a continuing tort, the 1st Respondent argued that the Appellant’s trespass was not a one-time event but a continuous injury. Because the Appellant remained in unauthorised occupation of the half-acre portion of land, a fresh cause of action arises every day the trespass persists. Consequently, their claim was not time-barred under Section 7 of the Limitation of Actions Act. The 1st Respondent emphasized that the Appellant failed to provide evidence of adverse possession that he had occupied the land with hostility, without secrecy, and without permission for over 12 years, to successfully mount a defense based on limitation. 5. On the second aspect, on a prior binding decree, the 1stRespondent asserted that the boundary issue had already been settled by the Environment and Land Court in **Vision Afrika Housing Co-operative Society Ltd vs. Stephen Kamau Mwangi (Nakuru ELC Civil Appeal No. 10 of 2019).** Because this decree had already been implemented and the reports adopted by the court, the Appellant was now attempting to reopen a matter that was res judicata, having already been decided by a competent court. They argued that the Court, as a first Appellate Court, cannot sit in judgment over a decree from a court of concurrent jurisdiction. 6. Thirdly, on the failure of pleadings and evidence, the 1st Respondent’s contention was that the Appellant’s defence was hollow because it relied on general denials without specific pleadings or proof. The 1st Respondent argued that the Appellant had failed to challenge the Land Registrar's survey reports and also prove when he took possession or that he held the land with the necessary hostility required for adverse possession. Lastly, that the parties are strictly bound by their pleadings, and since the Appellant did not plead or prove the necessary elements of adverse possession, the defence of limitation fails. 7. The 1st Respondent relied on the following provisions of the law and legal authorities to support their position: 8. Limitation of Actions Act (Cap 22) which governs the 12-year recovery limit for land actions. 9. Trespass Act (Cap 294) which defines trespass as unauthorized entry or occupation. 10. Land Registration Act (2012), where Sections 18-20 mandate the Land Registrar as the authority for boundary determination. 11. **United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd (1985) KLR** that set out the principles of appellate court interference in lower court decisions. 12. **M’Mukanya vs M’Mbijiwe (1984) KLR 761**, where it had been held that trespass is an infringement of the right to possession and that a belief in being an allottee did not negate tort. 13. **Wamutu vs Kiarie 1982 KLR 480, which** held that Courts lack jurisdiction in boundary disputes until the Land Registrar has determined them. 14. **Jamaica Nyaga Njoroge** **vs. Robert Wainaina** **Kibe (unreported)** whereit was held that if a party fails to challenge a Land Registrar's decision, it becomes a final resolution. 15. **Vision Afrika Housing Co-op Society vs Stephen Kamau Mwangi & 3 others 2020 KEELC 3578 (KLR),** which was the specific ruling in the interlocutory appeal regarding this boundary dispute. 16. **Estate Sonrisa Ltd vs. Samuel Kamau Macharia & 2 OTHERS 2020 KECA 734 (KLR)** that clarified the Land Registrar's wide, quasi-judicial powers to resolve boundary disputes. 17. **Challo vs City Chicken & Eggs Dealers Co-operative Limited & another [2023] KECA 244,** which confirmed that continuing trespass created a fresh cause of action daily and was not time-barred. 18. **Isaack Ben Mulwa vs Jonathan Mutunga [2016] eKLR,** where it was held that continuous injuries create separate causes of action barred only by the statute of limitation against each successive act. 19. **Muthiora vs. Marion Muthama Kiara [2022] KECA 28 KLR** where it was held that Trespass is indivisible harm; unauthorized occupation is a continuing tort. 20. **Independent Electoral and Boundaries Commission & another –vs- Mule & 3 others [2014] KECA 890 (KLR),** which held thatParties are strictly bound by their pleadings; courts cannot decide on issues not properly raised. 21. **Githu -vs- Ndeete [1984] KLR 776,** which discussed the principles of adverse possession and overriding interests. 22. **Serem vs. Serem [2023] KEELC 21693 (KLR)** which confirmed the burden of proof for adverse possession (Nec vi, nec clam, nec precario). 23. **Wills Ocholla vs. Mary Ndege [2016] KEELC 796 (KLR)** which reiterated that boundary disputes must first go to the Land Registrar. 24. **Cecilio Murango Mwenda 6 others – vs- Isaac kimathi Ikunga 2019 KEELC 3347 (KLR)** which held that Trespass claims are not "ripe" until the Land Registrar defines the boundaries. 25. **Kahumbu vs. National Bank of Kenya Ltd [2003] 2 EA 475** wherein had been held that a court cannot hear an appeal against an order from a court of coordinate jurisdiction. 26. The 1st Respondent concluded its submissions by asking the court to: 27. Uphold the trial court’s judgment of 10th August 2023. 28. Dismiss the appeal in its entirety. 29. Award costs to the 1st Respondents. **Analysis of the evidence.** 1. The Court of Appeal in **Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR),** held as follows; *“A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.”* 1. The core dispute in this matter is that vide its plaint dated 12th June 2018, the 1st Respondent (Plaintiff) filed suit seeking judgment be entered against the Defendants jointly and severally for: 2. Eviction orders and/or mandatory injunction orders to issue compelling the 1 Defendant, his servant/agents to immediately remove the perimeter fence and/or to surrender vacant possession of the Plaintiff's encroachment area of about 0.17 Hectares on parcel GILGIL/KARUNGA BLOCK 2/257 with total measurements of 2.040 Hectares and the O.C.S Gilgil Police Station to ensure compliance within fourteen (14) days of issuance of the order hereof. 3. That the 2nd and 3rd Defendants be orderg/to re-fix the land boundaries/beacons between the Plaintiff's parcel GILGIL/KARUNGA BLOCK 2/257 and the 1" Defendant's parcel GILGIL/KARUNGA BLOCK 2/258 so that the boundary conforms with the Registry Index Map and the exercise be carried out within fourteen (14) days from issuance of the order hereof. 4. A permanent injunction to issue restraining the 1 defendant, his family members, servants/agents from interfering, remaining, using and/or in anyway dealing with all that parcel of land belonging to the Plaintiff titled GILGIL/KARUNGA BLOCK 2/257 measuring approximately 2.040 hectares in a manner that would prejudice the Plaintiff's registered interests on the said land. 5. The 1"Defendant be ordered to pay general damages for trespass to land. 6. Costs and interest at court rates 7. Subsequent to the filing of the suit, the Appellant (1st Defendant) vide his amended statement of defence of 10th December 2021, gave a standard blanket denial of all claims made in the Plaint except where he explicitly admitted them. 8. He confirmed that he was the registered owner of Title No. Gilgil/Karunga Block 2/258 (measuring 2.21 hectares), but denied having encroached on the Plaintiff’s land, claiming that his perimeter fence stood firmly within his own rightful boundaries and that any survey reports indicating an encroachment were inaccurate and unfounded. 9. He claimed to be a stranger to the specific allegations regarding boundary disputes and site visits, putting the Plaintiff to strict proof regarding any loss or damages, and denies receiving any formal demand letters or legal notices before the lawsuit. 10. While he acknowledged the court's baseline capacity to hear and determine the matter, he argued that it had no jurisdiction to authorize an eviction or demolition, which he termed an illegality. He then introduced a standalone objection without prejudice, asserting that the suit was completely incompetent and legally dead on arrival as it was fundamentally time-barred under Section 7 of the Limitation of Actions Act. 11. There were no responses from the rest of the parties. 12. Subsequently, the case had proceeded for hearing wherein PW1, John Kemboi, an adult male who worked at the regional survey office in Nakuru, testified that he had a survey report dated 6th January 2021 and that he had visited the scene in the company of the Land Registrar from Naivasha. During the visit, he established the beacons and confirmed that parcel number 258 had encroached into the Plaintiff's land by half an acre. He produced his survey report as Pf exh 13. He further noted that there had been a previous report conducted by Nancy Nyagena at page 34, which he produced as Pf exh 14, stating that it shared similar findings. He clarified that the Plaintiff's land was parcel number 257, while the owner of parcel number 258 was Mr. Mwangi. 13. In cross-examination by the 1st Defendant's Advocate, he admitted that there was a live fence and bushes at the scene, alongside prior existing beacons. He pointed out that the overall size of the land was calculated on an approximate basis and stated that the boundary dispute could not be conclusively resolved by relying solely on the registry index map (RIM). 14. When cross-examined by the Counsel for the 2nd –4th Defendants, he explained that the lands registry maintained separate records and registry maps for every parcel of land, which were used to generate titles. He confirmed that a complaint had been lodged with the Land Registrar regarding parcels 257 and 258. After reviewing several parcels, including parcel 257 and 258 which were supposed to be 5 acres each, the registrar determined that this was not a standard boundary dispute but rather a land ownership claim. He added that the official map was kept at their office. 15. In re -examination, he clarified that they used official registry maps to determine land boundaries rather than relying on features like live fences. 16. PW2, Philip Odida, testified that he was the Chief Land Registration Officer in Naivasha. He stated that he had compiled a report dated 8th January 2021 following a site visit conducted on 23rd December 2020. The visit was attended by the surveyor, the owners of parcels 257 and 258, the local chief, and the Officer Commanding Station (OCS). He produced the notice of the site visit as Pf exh 11, stating that during the visit they discovered that a beacon had been demolished and confirmed an encroachment by parcel 258 into parcel 257. He produced his report as Pf exh 15 and referenced an earlier report by Mr. Mwaura, produced as Pf exh 16, which also found an encroachment of about half an acre. 17. In cross-examination by the 1st Defendant's Counsel, he admitted that there was an old existing beacon, a live fence, and bushes between the two parcels. He observed that the live fence had been there for a long time but insisted that an encroachment had still occurred because the 1st Defendant had placed his boundary in the wrong position. He acknowledged that while a live fence could serve as a recognizable marker, there was a pressing need to fix the beacons at their correct positions to properly re-establish the boundary. 18. When cross-examined by counsel for the 2nd –4th Defendants, he stated that he was familiar with Section 18 of the Land Registration Act (LRA). He confirmed that Mr. Mwaura had previously conducted a hearing where he concluded that there was an encroachment based on the Registry Index Map (RIM). He stated that both pieces of land were supposed to measure 5 acres each, and while they observed the live fence during their site measurements, their final findings were strictly based on actual ground dimensions. 19. PW3 one Ayub Miange testified that he was an adult male from Juja and served as the chairman of the Plaintiff, holding the legal authority to represent them in court. He adopted his recorded statement and relied on the list of documents produced as Plaintiff exhibits 1 through 18. He stated that he had sued the 1st Defendant for encroaching on parcel number Gilgil/Karunga Block 2/257. According to the witness, the Plaintiff purchased the land on 15th November 2017 and discovered the half-acre encroachment just five days later when they sent their own surveyor to the ground. 20. He noted that they had received corroborating reports from both their surveyor and the Land Registrar in Naivasha. Despite their attempts to resolve the issue amicably, their subsequent application to rectify the title was rejected, forcing them to file an appeal. He testified that he was present at the scene when new beacons were fixed. Consequently, he prayed for an order to demolish the structures built on the encroached portion and sought damages for trespass. He explained that the encroachment had stalled their plans to subdivide the land, resulting in an estimated loss of 200,000/- per year since 2017, culminating in a total claim of 800,000/-. 21. In cross-examination by the 1st Defendant's Advocate, the witness admitted that they had purchased the property from the Kamata family, who showed them the boundaries but were not living on the land at the time. He acknowledged that the Kamata family and the neighbour had occupied the area for over 30 years and that there was a long-standing live fence, with one section being conventionally fenced. He claimed they were never informed of any pre-existing disputes prior to the purchase. 22. He further admitted that they took ground measurements before completing the entire transaction, and had found the 1st Defendant already settled on the land. He conceded that he did not have documentary evidence to prove the alleged financial losses. He also admitted that the 1st Defendant was not a party to the consent and that the acreage figures provided were strictly approximations. Finally, he confessed that the structures they wanted demolished had already been built before the Plaintiff purchased the land. 23. In cross-examination by Counsel for the 2nd –4th Defendants, he reiterated that they dispatched a surveyor immediately after purchasing the land and relied on that surveyor's findings. He explicitly stated that the Plaintiff had no legal claim against the 2nd to 4th Defendants. 24. In re-examination, the witness restated that the Kamata family was not living on the property when it was sold. He noted that there was a fence and a semi-permanent house on the encroached area. He concluded by stating that they had received full co-operation from the land registration office and had only joined the 2nd to 4th Defendants to help align the disputed boundary properly. 25. The Plaintiff relied on the following exhibits as hereinabove captioned; 26. Certificate of Registration of Plaintiff society dated 16/12/2015 27. Resolution to file suit by Plaintiff dated 12/06/2018 28. Plaintiff’s title deed dated 15/11/2017 29. Certificate of Search for Defendant’s parcel dated 31/05 2018 30. Letter by A.G in support of Plaintiff’s case dated 03/07/2018 31. Partial consent to allow Plaintiff’s case by A.G, dated 17/07/2018 32. Court order dismissing Plaintiff’s application, dated 23/01/2019 33. Decree by High Court allowing Plaintiff’s appeal, dated 20/02/2020 34. Judgment of the High Court allowing appeal, dated 20/02/2020 35. Order dismissing 1st Defendant’s stay application dated 30/09/2020 36. Notice of implementation of decree by Land Registrar dated 21/12/2020 37. Affidavit of service for Notice dated 29/12/2020 38. Regional Surveyor’s report for site visit dated 06/01/21 39. Regional Surveyor’s report confirming encroachment dated 30/04/2018 40. Land Registrar’s report on site visit dated 08/01/2021 41. Land Registrar’s report confirming encroachment dated 04/05/2018 42. Demand notice to 1st Defendant dated 22/11/2017 43. Affidavit of service for demand Notice sworn on 12/06/2018 The Plaintiff thus closed its case. 1. The defence case proceeded with the evidence of the 1st Defendant who testified as DW1 to the effect that he was an adult male, a peasant farmer residing in Chokereria, Gilgil. He confirmed that he was the registered owner of parcel number Block 2/258, which bordered the Plaintiff’s land, parcel number Block 2/257. He adopted his filed witness statement as his evidence-in-chief. 2. He then stated that his documentation showed he had entered the land in 1982 after purchasing it from Chokereria Farmers Co-operative Society. 3. He produced a letter from the society dated 22nd June 2018 as Df exh 1, which confirmed his membership and ownership of the plot. He also produced a letter dated 6th July 2018 as Df exh 2, indicating that the plots had been balloted to members in 1982. Additionally, he produced the official map for Block 2 Chokereria as Df exh 3. 4. He testified that the Kamata family had sold the adjacent land to the Plaintiff and had never altered the beacons. He stated that the land was secured by a live fence and barbed wire, and that the Plaintiff had never raised any complaints regarding the boundary at the time of purchase. He added that although some people had been relocated to other areas, the Plaintiff bought their land well after the Kamata family had already fenced it. He vehemently denied encroaching on parcel number 257, noting that it had since been subdivided. He concluded his main testimony by emphasizing that he had occupied the land for 36 years since 1982 without any boundary disputes. 5. In cross-examination by the Plaintiff's Advocate, the witness admitted that the two letters from Chokereria Society were obtained and written after this lawsuit had already been filed. He conceded that there was no documentary evidence or letter proving that members were officially shown the boundaries, nor any verification of the beacons. He insisted that he placed his fence exactly where the society's surveyor had directed him. 6. The witness acknowledged that he had seen the Plaintiff's survey reports but denied the allegations of encroachment, though he admitted he did not possess a contrary surveyor’s report or a beacon certificate. He confirmed that he had built structures on the land but maintained they were within his property, though he conceded he had not specified the exact year they were constructed. He stated that he fenced the property in 1982 but admitted that this specific year was not stated in his written defense, and he did not have an agricultural officer's report in court to verify the age of the fence or vegetation. 7. He admitted receiving the Plaintiff’s demand notice, which was produced as Pf exh 17. He denied ever shifting the boundaries and confirmed that he actively farmed on the land. He stated that the survey report produced in court was unfamiliar to him and argued that the Plaintiff’s claim for compensation of Ksh 200,000/- should be rejected, reiterating that the land was sold to the Plaintiff directly by the Kamata family as it was. 8. In cross-examination, by Counsel for the 2nd -4th Defendants, the witness confirmed that he was duly notified when the Land Registrar (the 2nd Defendant) visited the scene. He admitted that he did not have any letter or written proof showing that he formally protested their visit or findings. He acknowledged that the Land Registrar and government surveyors had examined the boundary and that he had seen their subsequent report, though he claimed he had shown them a contrary survey report. He stated that his land measured 2.21 hectares and confirmed that he had filed his title deed in court. 9. In re-examination, he reiterated that he only sought out the explanatory letters from Chokereria Society after the legal dispute commenced. He reiterated that the structures he built were on his own land and that an original beacon on the ground had been shown to him by the initial surveyor. He concluded by confirming that the Land Registrar had formally served him with their correspondence and stated that he had personally planted the trees on the land in 1982. The 1st Defendant then closed his case. 1. The State Counsel for the 2nd to 4th Defendants informed the court that they would not be calling any witnesses to testify. That they would rely entirely on the evidence already presented by the Plaintiff's witnesses, specifically the testimony of PW1 (the surveyor) and PW2 (the Land Registration Officer). They then formally closed their case. **Determination.** 1. I have considered the record of appeal, the evidence in the trial court, the holding of the trial Magistrate, the written submissions of learned Counsel, the authorities cited and the applicable law. Conscious of my duty as the first Appellate Court in this matter, as it is trite of me, the summary of the parties’ case is as follows: 2. The Plaintiff’s case revolves around a boundary encroachment and trespass claim over land parcel Gilgil/Karunga Block 2/257. The Plaintiff, Vision Afrika Housing Co-operative Society Ltd, represented by its chairman, PW3, purchased parcel Block 2/257 from the Kamata family on 15th November 2017. Just five days after the purchase, the Plaintiff dispatched a private surveyor to the ground and discovered that the neighbour, the 1st Defendant, Stephen Mwangi, who owns parcel Block 2/258, had built a fence and semi-permanent structures encroaching into the Plaintiff’s land by approximately half an acre. 3. To resolve the matter, the Plaintiff involved the land registry. Two separate statutory site visits and reports by government officials completely validated the Plaintiff’s claim. 4. The Chief Land Registration Officer from Naivasha visited the site on 23rd December 2020 alongside the local chief and police (OCS), where he confirmed that an original beacon had been demolished and that the 1st Defendant had placed his boundary in the wrong position, resulting in an encroachment of about half an acre. 5. The surveyor from the Nakuru regional office also visited the scene and officially re-established the correct beacons using the registry maps. He testified that both parcels were historically meant to be exactly 5 acres each, but the 1st Defendant's parcel No. 258 had clearly spilt over into the Plaintiff's parcel No 257 by half an acre. 6. The Plaintiff attempted to settle the matter amicably with the 1st Defendant, who initially agreed to resolve it but later reneged. The Plaintiff then pursued a title rectification, which was rejected, leading them to appeal and ultimately file this substantive suit. 7. The Plaintiff asserted that because of the 1st Defendant's unauthorised occupation, they had been completely unable to subdivide and develop their property since 2017 and had suffered an estimated financial loss of 200,000/- per year. Consequently, the Plaintiff requested the court to order: 8. The demolition of all illegal fences and structures built by the 1st Defendant on the Plaintiff's half-acre portion. 9. An award of 800,000/- in damages for trespass. 10. The proper alignment and fixing of the boundaries according to the newly re-established government beacons. 11. The Defendant's case, on the other hand, consisted primarily of the testimony of the 1st Defendant, as the 2nd, 3rd , and 4th Defendants chose not to call any witnesses and instead relied on the official government survey evidence. 12. The 1st Defendant testified that he was a peasant farmer who had lived on and actively farmed his parcel of land No Block 2/258 for 36 years prior to the lawsuit. He stated that he entered the land in 1982 after purchasing it from the Chokereria Farmers Co-operative Society. To support his historical claim, he produced letters from the society confirming his membership and the balloting of plots from that era. 13. He maintained that he never shifted his boundaries or encroached on the Plaintiff's land, arguing that he had erected his live fence and barbed-wire fence in 1982 exactly where the society’s original surveyor directed him. That the structures and trees he planted were entirely within his rightful 2.21-hectare property and that the previous owners (the Kamata family) lived next to him for decades and never raised any boundary disputes. Lastly, that the fences were already fully established when the Plaintiff bought the neighbouring plot in 2017. 14. However, under cross-examination he admitted that he did not possess an independent surveyor's report, a beacon certificate, or an agricultural officer's report to legally challenge the Plaintiff’s allegations or prove the age of the fence. He also conceded that the letters from the Chokereria Society confirming his 1982 possession were only sought out and written after this lawsuit had already been filed. 15. He confirmed that he had been properly notified of the Land Registrar’s site visits, saw their reports, and received the Plaintiff’s formal demand notice, though he did not file any written, formal protest against the officials' findings. 16. Based on the pleadings, testimonies, and evidence presented by the parties, I find the issues for determination as being: 17. Whether the suit is time-barred under the Limitation of Actions Act, if not, 18. Whether the 1st Defendant has encroached on the Plaintiff's Land (Parcel Block 2/257) 19. Whether the boundary/encroachment issue is already res judicata 20. Whether the 1st Respondent/Plaintiff was entitled to the remedies sought. 21. Who Bears the Costs of the Suit? 22. On the first issue for determination as to whether the Plaintiff’s suit was time-barred under Section 7 of the Limitation of Actions Act, the court must balance a critical tension between two competing legal doctrines, being the statutory 12-year limitation period for the recovery of land versus the common law doctrine of continuing trespass. 23. Section 7 of the Limitation of Actions Act 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 7 of the Limitation of Actions Act provides that an action to recover land may not be brought after the end of twelve years from the date on which the right accrued. 2. The Appellant/1st Defendant’s argument is straightforward that he had entered the land, planted trees, and erected his perimeter fence in 1982. He lived next to the previous owners (the Kamata family) for decades without a single boundary objection. The Plaintiff only bought the land in 2017. 3. Under the provisions of Section 7 of the Limitation of Actions Act, if a property owner sits on their rights and fails to evict an encroaching neighbour for more than 12 years, their legal title to that portion of the land is effectively extinguished, and the squatter/encroacher gains a right to it via adverse possession. The 1st Defendant argues that the cause of action accrued back in 1982, making a suit filed after 2017 decades too late. 4. While the Appellant/1st Defendant lived on the land since 1982, his defence of limitation under the Limitation of Actions Act faced severe evidentiary and procedural hurdles based on the trial record. 5. This is because to successfully claim that the 1st Respondent’s /Plaintiff’s suit was time-barred from recovering land under Section 7, the Appellant/1st Defendant ought not to have relied only on a general denial, but should have specifically pleaded and proved the elements of Adverse Possession which required demonstrating that his possession was *nec vi, nec clam, nec precario* (without force, without secrecy, and without permission) and crucially, hostile to the true owner's title for an uninterrupted period of 12 years as was held in the case of **Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR,** where the Court of Appeal held that: *“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession* *is averse to the title owner*.” 1. In his Amended Statement of Defence at paragraph 13, the Defendant merely stated he would raise a preliminary objection under Section 7. He did not formally counterclaim for adverse possession. 2. During cross-examination, DW1 admitted that he placed his fence where he thought his own boundary was, as shown by the society surveyor. He was not intentionally occupying the Plaintiff's land with the necessary ‘’hostile intent’’ required to claim title by limitation. 3. The Plaintiff/1st Respondent completely rejected the time-bar defence by relying on established precedent regarding trespass to land to the effect that an illegal occupation of another person's land was not a single, historical event that happened in 1982. Instead, it was a continuing trespass. Every single day the Appellant/1st Defendant’s fence and semi-permanent house remained on their (1st Respondent’s/Plaintiff’s) half-acre, a brand-new trespass was committed, and a fresh cause of action accrues. 4. The Court of Appeal’s decision in the case of **Muthiora v Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara-Deceased) (Civil Appeal 43 of 2017) [2022] KECA 28 (KLR) (4 February 2022) (Judgment)** held as follows: *“From the foregoing, it is clear that the suit property belonged to the respondent’s husband, and to herself by virtue of her being the administrator to the deceased’s Estate. This inevitably leads us to the conclusion that the appellant was a trespasser in the suit property. Was the suit against him statutorily time barred?* *Section 4(2) of the*[*Limitation of Actions Act*](https://new.kenyalaw.org/akn/ke/act/1968/21)*provides that an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. This presupposes a case of a one-time trespass. The term “accrue” in the context of a cause of action means to arrive, to commence, to come into existence or to become a present enforceable demand or right. The time of accrual of a cause of action is a question of fact (see Black’s Law dictionary at Page 23). However, in a case of a continuing trespass, a trespass consists of a series of acts done on consecutive days that are of the same nature and that are renewed or continued from day to day so that the acts in the aggregate form one indivisible harm.* *Trespass is described under the Trespass Act Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property”Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues”.* *From the above definitions of the term “trespass” by the eminent learned authors, it is clear that any unauthorized entry whether present or continuous is trespass. In this case, it is indeed common ground that the appellant entered into and has remained in occupation of the suit property. The appellant’s continued occupation of the said property from the 1st date of entry in so far as it is unauthorized by the respondent amounts to trespass and remains as such to date. The respondent’s claim for trespass being a continued tort is, therefore, not time barred. We find no fault with that finding by the trial court.’’* 1. It is therefore trite from the above-captioned authority and several others, including **Challo vs City Chicken & Eggs Dealers Co-op** case (supra), that because trespass is a continuous injury, it cannot be defeated by the limitation period as long as the trespass is still ongoing. 2. Further, as established by PW1, PW2, and cases like **Wamutu vs Kiarie (supra),** a boundary dispute is technically not ripe for a definitive court action until the Land Registrar visits the site and officially determines the boundaries under Section 18 of the Land Registration Act*.* The official government survey and re-fixing of the beacons only happened between December 2020 and January 2021. Therefore, the exact physical reality of the encroachment was only legally and conclusively established in 2021. The Plaintiff filed suit shortly after, meaning they acted well within any statutory timelines once the cause of action crystallized. 3. While the Appellant/1st Defendant proved physical presence since 1982, his failure to legally plead and prove the strict elements of adverse possession, combined with the fact that unauthorised physical occupation constitutes a continuing tort, defeats his limitation defence. The 1st Respondent/Plaintiff's right to protect its registered title from an ongoing, scientifically verified encroachment remains intact. I therefore find that the 1st Respondent/Plaintiffs' suit was not time-barred. 4. On the second issue as to whether the 1st Defendant has encroached on the 1st Respondent/Plaintiff's Land (Parcel Block 2/257), based on the trial record and testimonies, the 1st Respondent/Plaintiff’s claim of encroachment is anchored on empirical measurements and formal reports from the state authorities legally mandated to manage boundaries. 5. The Chief Land Registration Officer for Naivasha conducted a statutory site visit on 23rd December, 2020, accompanied by local administration and police; his investigation revealed that an original boundary beacon had been active and subsequently demolished. His formal report produced as Pf exh 15 confirmed a clear physical spillover into the Plaintiff's plot. 6. The Regional Surveyorfrom the Nakuru Regional Survey Office verified the ground measurements using official registry maps and confirmed that both parcels (257 and 258) were historically mapped to measure exactly 5 acres each. His survey, Pf exh 13, established that the Appellant/1st Defendant’s parcel No. 258 had physically crept into the Plaintiff's parcel No. 257 by half an acre 7. The Appellant/1st Defendant vehemently denied moving any boundaries, resting his defence on the physical, historical layout of the land, stating that he erected his live fence and barbed wire back in 1982 based exactly on where the Chokereria Farmers Co-operative Society surveyor initially pointed out his plots. He argued that the previous owners (the Kamata family) lived alongside him for over 30 years without ever disputing the fence line. He asserted that the Plaintiff purchased the land in 2017 as it was, already fully fenced and settled. Therefore, from his perspective, his structural presence was entirely within his rightful 2.21 hectares. 8. While his testimony established his honest *belief* that he was on his own land, his defence collapsed during cross-examination due to a total lack of supporting evidence when he admitted that he did not possess a contrary surveyor’s report or a beacon certificate to challenge the math of the Regional Surveyor or Land Registrar. 9. He reliedheavily on the long-term existence of a live fence, which evidence was displaced by PW1, who explicitly clarified in re-examination that they used the map to determine the land and not a live fence, which was an informal marker and could not overrule the precise geographic coordinates of a Registry Index Map (RIM). The 2nd -4th Defendants, who were government departments, formally stood by the finding that the 1st Defendant's fence was in the wrong place. 10. Under Section 18 of the Land Registration Act (2012), the Land Registrar holds primary, quasi-judicial jurisdiction to determine land boundaries. The court routinely refers to their expert reports unless there is clear proof of fraud or bias, neither of which was alleged here. I thus find that the Appellant/1st Defendant encroached on the 1st Respondent/Plaintiff's land by approximately half an acre when he placed his fence in the wrong position in 1982, which placement cannot defeat the precise, lawful boundaries documented in the Land Registry. 11. On the third issue as to whether the boundary and encroachment issue is already *res judicata*, Under Section 7 of the Civil Procedure Act (Cap 21), a court is barred from trying any suit or issue in which the matter in issue was directly and substantially in issue in a former suit between the same parties, who litigated under the same title, and had been heard and finally decided by a competent court. 12. Based on the pleadings, testimonies, and legal arguments presented in this matter, the 1st Respondent/Plaintiff explicitly raised the argument that the boundary question was a closed chapter following the Nakuru Environment and Land Court decision in **Vision Afrika Housing Co-operative Society Ltd v Stephen Kamau Mwangi & 3 others [2020] KEELC 3578 (KLR)** It argued that the previous appeal stemmed from an interlocutory application concerning the same boundary dispute. The ELC Court had already directed how the boundary should be determined, and those reports were subsequently adopted by the court, resulting in a formal decree. 13. That because a court of concurrent (equal) jurisdiction had already supervised the resolution of this boundary line and issued a decree, the Appellant/1st Defendant could not use this fresh suit to reopen or appeal that decision. Doing so, they argued, violated the doctrine of *res judicata* and constituted an abuse of the court process. 14. While the Appellant/ 1st Defendant’s oral testimony focused primarily on his historical occupation since 1982, his legal stance against *res judicata* rested on the argument that a boundary determination process under the Land Registration Act was a distinct statutory exercise separate from a substantive claim for general damages for trespass and an order for eviction/demolition. He maintained that he had a valid defence under the Limitation of Actions Act (adverse possession/time-bar) that had not been fully ventilated on its merits in a substantive trial during the previous appellate skirmish. 15. To determine whether Res judicata applies here, I have looked at the intersection of the previous ELC Appeal No. 10 of 2019 and the current suit and find that the parties and the core subject in both actions are identical, being Vision Afrika and Stephen Kamau Mwangi and half-acre physical variance between land parcels Gilgil/Karunga Block 2/257 and Block 2/258. 16. Under Section 18 of the Land Registration Act, the Land Registrar has the sole primary jurisdiction to fix boundaries. The trial record shows that the Land Registrar (PW2) and Regional Surveyor (PW1) visited the site specifically to execute the boundary re-fixing and therefore the boundaries became final and binding. By attempting to challenge the accuracy of the Land Registrar's 2021 survey reports in this trial without having formally appealed the Registrar's decision, the Appellant/1st Defendant, I find, was trying to collaterally attack a settled statutory finding. 17. The Nakuru ELC Appeal No. 10 of 2019 having explicitly adopted the surveyor's reports and finalized the boundary between these two specific plots, the physical location of the boundary line is legally **res judicata**. A lower court (the Principal Magistrate's Court) has no legal authority to alter or look behind a decree issued by the Environment and Land Court, and therefore the boundary dispute in itself is *res judicata*. 18. The physical coordinates and the fact of the encroachment were finalized by the Environment and Land Court in the 2019 appeal, and executed by the Land Registrar. The Appellant/1st Defendant cannot now reopen the technical question of where the line sits. Therefore, the trial court properly restricted its focus to the unresolved consequential issues: whether the suit was time-barred as a whole, whether the structures must be demolished, and whether damages for trespass should be awarded based on the already established boundary line. 19. Lastly, on the issue as to whether the 1st Respondent/Plaintiff was entitled to the remedies sought in their Plaint, it is not in dispute that the 1st Respondent/Plaintiff had sought an order to compel the Appellant/1st Defendant to demolish the perimeter fence and semi-permanent structures built on the encroached half-acre portion. 20. A mandatory injunction is a drastic remedy that requires a clear, unmistakable right to relief. The previous orders by the Environment and Land Court decree explicitly held that a demolition order was *premature* until the Land Registrar had formally fixed the boundary coordinates. 21. The prerequisite condition set by the Environment and Land Court has now been fully satisfied. The Regional Surveyor (PW1) and the Chief Land Registration Officer (PW2) executed the Environment and Land Court's directive, visited the site, measured the ground using the Registry Index Map (RIM), and conclusively found that the Appellant/1st Defendant's fence was placed in the wrong position, causing a half-acre encroachment. 22. Because the statutory boundary re-fixing process has proved that the Appellant/1st Defendant's structures sit on the 1st Respondent/Plaintiff's registered property No. Parcel 257, the 1st Respondent/Plaintiff had an absolute right to the exclusive use of its land. Therefore, the court was obliged to grant the mandatory injunction to remove the illegal structures, as refusing to do so would have legalised an ongoing encroachment. 23. The 1st Respondent/Plaintiff sought a total of Ksh. 800,000/- in general damages, computed at a rate of Ksh. 200,000/- per year since 2017, claiming that the encroachment prevented them from subdividing and developing the land. 24. The courts have held that trespass to land is actionable per se, meaning that once a Plaintiff proves that their property rights have been violated by an unauthorised entry, they are entitled to general damages as a matter of course, even if they cannot prove specific financial loss. The Court of Appeal in **Ng'ang'a v Kenya Power and Lighting Company [2026] KECA 648 (KLR)** held as follows: *‘’With due respect, we do not find any legal or justifiable basis why the learned judge referred to mesne profits when the trial court categorically awarded general damages. We therefore find that the appellant was correctly entitled to an award of general damages for trespass. We reiterate the ruminations of this Court in* ***Wanyeki vs. Bhudiya & another [2023] KECA 87 (KLR)*** *that held as follows on damages for trespass:* *"It is trite law that trespass to land is actionable per se. Once it is proved the appellant is under no duty to prove that he suffered any specific damage or loss. In other words, where trespass is proved as in this case, the affected party such as the appellant need not prove that he suffered any damage or loss as a result so as to be awarded damages. The court under the circumstances is bound to award damages depending on the facts of each case. See* ***Simiyu vs Sinino. [1985] eKLR****."* 1. In **Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR),** the Court of Appeal held as follows; ‘*’The above decision was followed by this Court’s decision in the case of* ***Kenya Hotel Proprietors Ltd v Willesden Investments Ltd [2009] KLR 126.*** *In the instant appeal, the trial court made a finding that the appellant was a trespasser from the time the respondent rescinded the agreement. As such the respondent was entitled to compensation for the period the appellant was in occupation of the suit land. The respondent sought both mesne profits and damages for trespass. The law is that trespass to land is actionable*per se*(without proof of any damage). In****Park Towers Ltd v John Mithamo Njika & 7 others******[2014] eKLR****it was stated:* “I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique facts and circumstances of each case...” *Therefore, granted that trespass to land is actionable*per se*, and indeed no proof of damage is necessary for the court to award general damages. We note that the respondent did not claim any amount to guide the court in assessing general damages for trespass. The court would have expected the respondent to obtain the actual benefits accrued by the appellant from the suit property for the duration of the trespass. It is common ground that the appellant had erected a mansion on the suit property. Such information represents the opportunity of cost of the deprivation of the use of land by the appellant’s continued occupation.* *In tort damages are awarded as a way to compensate a party for the loss he or she had incurred due to a wrongful action on the part of the other party. The damages so awarded are intended to return the party back to the position he or she was in before the wrongful act was committed.****Halsbury’s Laws of England******4th Edition Volume 45 para 26 1503****provides as follows on computation of damages in an action for trespass:* a) If the Plaintiff proves the trespass, he is entitled to recover nominal damages even if he has not suffered any actual loss b) If the trespass has caused the Plaintiff actual damage, he is entitled to receive such amount as will compensate him for his loss c) Where the Defendant has made use of the Plaintiff’s land, the Plaintiff is entitled to receive by way of damages such an amount as would reasonably be paid for that use d) Where there is an oppressive, arbitrary or unconstitutional trespass by a Government official or where the Defendant cynically disregards the rights of the Plaintiff in the land with the object of making a gain by his unlawful conduct, damages may be awarded e) If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, general damages may be increased”Emphasis ours. *Similarly, in the case of****Duncan Ndegwa v Kenya Pipeline Limited HCC No. 2577 OF 1990****the court held that:* **“**The general principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land. The overriding principles is to put the claimant in the position he was prior to the infliction of the harm.” 1. It is trite that Trespass to land is actionable *per se*, meaning the law presumes harm simply because an unauthorized entry occurred, even if no actual physical damage was done. However, when a party claims a specific quantum of financial loss, such as Ksh 200,000/- per year for stalled development, they ought to have proved it. I therefore find that the 1st Respondent/Plaintiff was entitled to the nominal general damages of Ksh 400,000/= as awarded by the trial Magistrate to vindicate the 1st Respondent/Plaintiff's possessory rights. 2. The 1st Respondent/Plaintiff had also sought that the boundaries be permanently re-fixed in accordance with the official registry maps, and since the Land Registrar (PW2) and Surveyor (PW1) have already done the heavy lifting on the ground by physically re-establishing the correct beacons during their site visit, the prayer had been overtaken by events. 3. Ultimately, I find as follows; 4. The Appeal is hereby dismissed for lacking in merit. 5. The Judgment and Decree of the Subordinate Court in Nakuru CMCC ELC NO. 127 OF 2018 is hereby affirmed in its entirety. 6. The order directing the Appellant to remove and/or demolish the perimeter fence and any semi-permanent structures situated on the encroached half-acre portion within ninety (90) days of this judgment is affirmed. In default, the 1st Respondent shall be at liberty to execute the demolition at the Appellant’s cost. 7. The 2nd and 3rd Respondents are directed to formally register the re-fixed boundary line between Parcels 257 and 258 in accordance with the Regional Surveyor's report dated 6th January 2021. 8. The Appellant shall bear the costs of this Appeal and of the trial court. **Dated and delivered via Microsoft Teams at Naivasha this 2nd Day of July 2026.** **M.C. OUNDO** **ENVIRONMENT & LAND COURT – JUDGE**