https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3273

Sigei (Suing as the Legal Representative of the Estate of Annah Chelangat Too) v Langat & another (Environment and Land Case 73 of 2012) [2026] KEELC 3273 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3273 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Case 73 of 2012 LA Omollo, J May 28, 2026 Between Sammy Sigei (Suing as the Legal Representative of the Estate of Annah Chelangat Too) Plaintiff and Kiprono arap Langat 1st Defendant Jona zrap Langat 2nd Defendant Judgment 1.The Plaintiff commenced the present proceedings vide the Plaint dated 3rd September, 2012 which Plaint was amended on 29th June, 2018. 2.The Plaintiff avers that Annah Chelangat Too (deceased) was registered as the owner of land parcel No. Kericho/Kapsoit/614 on 24th February, 1995. 3.The Plaintiff also avers that in July and August, 2012, the Defendants and/or their agents trespassed onto the suit parcel of land and destroyed the fence. 4.The Plaintiff further avers that the Defendants and/or their agents violently attacked the workers who were on the land and the matter was reported to the police. 5.It is the Plaintiff’s averment that the Defendants together with the officials of the provincial administration threatened to create an access road on the suit parcel of land. 6.It is also the Plaintiff’s averment that there has never been an access road on the suit parcel of land and the actions of the Defendants violated the rights provided for under the Constitution. 7.The Plaintiff seeks the following orders;a.An order of permanent injunction restraining the Defendant (sic) by themselves, agents, servants, employees or otherwise from encroaching onto, interfering with the fence existing thereon, passing through any land, purporting to create a road of access and or doing any other act which is prejudicial to the Plaintiff’s proprietary interest in land parcel No. Kericho/Kapsoit/614.b.General damages.c.Costs and interest.d.Any other relief the Court may deem fit and just to grant. 8.The Defendants filed a Statement of Defence dated 17th September, 2012 wherein they denied the averments in the Plaint and sought that the suit be dismissed with costs. Plaintiff’s Evidence. 9.Sammy Kiprotich Sigei herein after referred to PW1 was the first witness to testify in support of the plaintiff’s claim. He introduced himself as a secondary school teacher and stated that he works at Ketitui Secondary School. 10.It was his evidence that he was in Court because they had a dispute with the Defendants over an access road that was created on land parcel No’s Kericho/Kapsoit/614, 615 and 655. 11.It was also his evidence that the said parcels of land together with land parcel No’s 582 and 583 were part of their ancestral land. 12.It was further his evidence that the original owner of the said parcels of land was one Taelega Arap Letyo who was also known as Abraham. 13.He testified that his father’s name was Michael Sigei Arap Too (Deceased) and the Defendants are his uncles. 14.He also testified that his deceased mother filed the present suit on behalf of his deceased father. 15.He further testified that he was given a Grant of Letters of Administration Ad Litem on 5th November, 2021 which allowed him to sue on behalf of his deceased mother. He produced a copy of the Letters of Administration Ad Litem as Exhibit P1. 16.It was his evidence that his deceased mother was registered as the owner of land parcel No. 614. 17.It was also his evidence that he had in Court a copy of the green card that showed that the said parcel of land was registered in her name. He produced a copy of the said green card as Exhibit P2. 18.It was further his evidence that the access road that was to serve land parcel No. Kericho/Kapsoit/655 originally passed through land parcel No. Kericho/Kapsoit/615. 19.He testified that the 2nd Defendant blocked the said road in the year 1990. 20.He also testified that land parcel No. Kericho/Kapsoit/655 is registered in the name of the 1st Defendant while land parcel No. Kericho/Kapsoit/615 is registered in the name of the 2nd Defendant. 21.He further testified that he had the Registry Index Map and a copy of a green card that show the location of the road. He produced a copy of the green card for land parcel No. Kericho/Kapsoit/615 as Exhibit P4. 22.It was his evidence that he has the survey map of the area and added that it was dated 2nd August, 2012 and it is Sheet No. 14 Kericho/Kapsoit. He produced the Registry Index Map as Exhibit P5. 23.It was also his evidence that on the map, the three parcels of land were on the lower side of his deceased grandfather’s estate while the other two were above it. 24.It was further his evidence that there was a straight boundary between land parcel No. 814 and the other parcels of land. 25.He testified that his deceased grandfather registered the said parcels of land in the names of his sons and his name did not therefore appear anywhere. 26.He also testified that after the said registration, his deceased father together with his uncles took possession of the land. 27.He further testified that his deceased father was the first to take possession in the year 1958. 28.It was his evidence that his deceased father planted Cyprus trees along the boundaries of his farm as per the photographs filed in Court. 29.He also testified that on the ground, the straight boundary exists and the purported road does not exist on the map. 30.He further testified that the Surveyor’s report confirmed the said position. 31.It was his evidence that the Surveyor confirmed that on the map, the access road that was meant to serve land parcel No. 655 was on land parcel No. 615. 32.It was also his evidence that the Surveyor confirmed that the said road did not exist on the ground and added that the road that was found to exist on the ground was the one that passed through land parcel No’s 615 and 655. 33.He testified that land parcel No. 655 has since been subdivided into land parcel No’s 3398 and 3399. 34.He also testified that during the survey, the Chief, his two assistants and the village elders were present. 35.He further testified that his uncles, the 2nd Defendant and one Johana Too, who is the registered proprietor of land parcel No. 383 were also present. 36.It was his evidence that one of his uncles who was deceased was represented by his wife Rachel Too and children. 37.It was also his evidence that the Surveyor filed a report dated 26th October, 2018 which report he produced as Exhibit P6. 38.It was further his evidence that as per the Registry Index Map (Exhibit P5) the access road is not on land parcel No. 655. 39.He testified that the road that was provided for on the map was not on the ground. 40.He also testified that his deceased father and the village elders had informed him about the history of the access road. 41.It was also his evidence that when the 2nd Defendant blocked the road, his deceased father called the elders and the road was re-opened. 42.It was further his evidence that the road was used to access land parcel No. 655 between the year 1990 to the year 2012. 43.He testified that the disputed access road passes through their home to the home of the 1st Defendant who is the registered owner of land parcel No. 655. 44.He also testified that the 1st Defendant was allowed to pass through their land because his father who is now deceased, was unwell and he could not file a suit. 45.He further testified that the trees that were planted by his deceased father are still exist on the ground. He produced photographs of the land as Exhibit P7. 46.It was his evidence that in the year 2013, the 2nd Defendant incited one of the sons of the 1st Defendant and he created a disturbance that led to one of his workers getting injured. 47.It was also his evidence that this prompted them to seek help from the Court in order to block the temporary access road which orders were granted by the Court. 48.It was further his evidence that in the year 2013, the 1st Defendant was stopped from using the disputed access road that passes through their land. 49.He testified that the 2nd Defendant alleged that on the map, the access road was on their parcel of land and he therefore closed the access road that passed through his (2nd Defendant) land. 50.He also testified that the 2nd Defendant also alleged that the access road that passed through his (2nd Defendant) land was not provided for on the map. 51.It was his evidence that in the year 1990, when he was in Form 1, an agreement was entered into which created a temporary access road on their land. 52.It was also his evidence that he was attending school at Nairobi School and he only visited their Kapsoit home to pick school fees and pocket money. 53.It was further his evidence that at that time, his deceased father was living on land parcel No. 614 while the rest of their family lived in Molo. 54.He testified that he moved to land parcel No. 614 in the year 1994 which was three years after his deceased father passed on. 55.He also testified that when he moved to the suit parcel of land, he found a temporary road which was used by his late uncle. 56.He further testified that the access road that is provided for on the map was, on the ground, a paddock and was used to plant maize and napier grass and added that the said access road has never been used. 57.It was also his evidence that after his uncle passed away he, on humanitarian grounds, allowed his uncle’s family to use the suit parcel of land to access their land but they refused. 58.It was further his evidence that they insisted on passing through land parcel No. 615. 59.He testified that he was in Court to seek justice for the 1st Defendant’s family whose access road was blocked in the year 1990. 60.He also testified that their grandfather died between the year 1990 and the year 1992 and added that at the time of his death, the suit parcels of land were intact. 61.He further testified that the proprietors of land parcel No’s 615 and 655 knew that they were to subdivide the land equally unlike the other three parcels of land. 62.It was his evidence, that as per the map and the green cards of land parcel No’s 382, 383 and 614, the said parcels of land were not equal in size and he explained that this was his deceased grandfather’s decision. 63.It was further his evidence that the farm was adjudicated between the year 1961 to the year 1975 and added that during adjudication, the road was marked because the owner of land parcel No. 615 was not present and he would have missed the provision of the access road. 64.He also testified that the access road was marked on land parcel No. 615 and no one disputed it. 65.He further testified that at the time he was giving evidence, the access road passed through land parcel No. 615. 66.It was his evidence that their family members knew where the access road is located and the said road should therefore be opened. 67.It was further his evidence that the only person who complained was the 2nd Defendant and he believed that he was the one who blocked the legitimate road. 68.Upon cross examination, PW1 confirmed that he was the son of Ann Chelangat Too (Deceased). 69.He also confirmed that he was born in the year 1975 and read out his National Identity card number as 14679332. 70.He further confirmed that he was born on 17th July, 1976. 71.PW1 confirmed that land parcel No. 614 was initially registered in his deceased father’s name before it was transferred to his deceased mother. 72.When referred to the green card for land parcel No. 614 (produced as Exhibit P2), he confirmed that the land was first registered on 8th May, 1975 and he admitted that the title deed for the said parcel of land was obtained before he was born. 73.He also admitted that the 2nd Defendant is his uncle and he was given the title deed to his parcel of land just like his other uncles. 74.He confirmed that his deceased grandfather processed the entire parcel of land which he directly transferred to his sons. 75.He also confirmed that his grandfather owned the land before adjudication even though he was not given a title deed. 76.PW1 confirmed that he is a teacher and admitted that after the road was blocked, the Chief wrote a letter. 77.He also stated that he had a document in the file which showed that there was a dispute between the parties. 78.When he was referred to the Registry Index Map (produced as Exhibit P5) PW1 admitted that as per the map, the access road is on land parcel No. 614. He also admitted that the access road begun and ended on the suit parcel of land. 79.He confirmed that the suit parcel of land has a straight boundary that begins from the road to the end of land parcel No. 655. 80.He also confirmed that access to land parcel No. 655 was blocked by the 2nd Defendant. 81.He further confirmed that a title deed could not be issued before the creation of an access road. 82.He admitted that he did not know when the access road to land parcel No. 655 was created. 83.He also admitted that the 2nd Defendant was the registered owner of land parcel No. 615. 84.He stated that he used to live in Nakuru and confirmed that he visited his deceased father regularly. 85.He confirmed that his father had one household at the time of his death. 86.He also confirmed that he did not know Alice Chebet Too and stated that she was not his step mother. 87.He stated that he is the last born son of his deceased parents and one Charles Sigei is the first born. 88.He admitted that one of his sisters, one Cheruto tried to sell the suit parcel of land to the 2nd Defendant and confirmed that Cheruto was now living in Mau Summit. 89.He denied that he was the source of the dispute and stated that it was the 2nd Defendant who started the dispute. 90.He confirmed that his uncle one Johana Kipkemoi Too was the registered owner of land parcel No. Kericho/Kapsoit/382 and he intended to call him as a witness. 91.He also confirmed that land parcel No. Kericho/Kapsoit/383 was registered in the name of Chelogoi Arap Too who is also one of his uncles. 92.He admitted that it was the will of his grandfather that the land be subdivided equally between the 1st and 2nd Defendants. 93.He confirmed that his grandfather died when he was five years old. 94.He also denied that his deceased grandfather did not have land to subdivide amongst his family members. 95.When referred to the survey report (produced as Exhibit P6), he confirmed that the Chief, his two assistants, his uncle, a wife to one of his deceased uncles together with village elders were present. 96.He admitted that in the report, the surveyor referred to information that was provided by the elders. 97.He stated that the road the surveyor was referring to in the report did not exist on the ground. 98.When he was referred to the photographs produced as Exhibit P7, he confirmed that his deceased father planted the trees between the year 1958 to the year 1962. 99.He admitted that there is a timber structure on land parcel No. 655 which belongs to a person who recently purchased the land and is yet to be given a title deed. 100.He also admitted that the tea shown on the photograph was planted on the suit parcel of land in the year 1963. 101.He stated that when he was employed in the year 2003, he also planted tea on the suit parcel of land. 102.He confirmed that the 2nd Defendant created disturbance by inciting one of the sons of the 1st Defendant and stated that his name is Nathan Kipsang Rono alias Jeoffrey Kipkurui. 103.He also confirmed that in the year 2013, the Court issued an order of injunction. 104.He stated that Nathan Kipsang Rono alias Jeoffrey Kipkurui was charged in Court twice and he was at that time of giving his evidence serving time on account of other offences he was convicted of. 105.He admitted that the 2nd Defendant had never been charged in any Court and confirmed that he was before Court seeking that the access road on land parcel No. 615 be opened. 106.He also admitted that the suit parcel of land goes all the way to the road and confirmed that by extension, he filed the present suit on behalf of the 1st Defendant. 107.He stated that he sued the 2nd Defendant because the problem they were facing was as a result of the 2nd Defendant blocking the access road. 108.He also stated that the 2nd Defendant disputed their grandfather’s wishes. 109.He further stated that during the meeting that was held by the elders, his deceased grandfather’s will was produced. 110.He confirmed that the 2nd Defendant closed the road that was on his parcel of land and opened a road on the suit parcel of land that is registered in the name of his deceased mother. 111.He also confirmed that the road on the 2nd Defendant’s land was established during the adjudication period. 112.He stated that there was no other person other than the 2nd Defendant who would have closed the road on the 2nd Defendant’s land and established an access road on the suit parcel of land. 113.He was then referred to a letter dated 4th December, 1990 which letter was marked as MFI D1. 114.He admitted that he was aware of the said letter and confirmed that it was written by Henry Mitei on behalf of the elders. 115.He stated that after the closure of the access road by the 2nd Defendant, his deceased father and one Kiprono Too agreed to open a temporary road on the suit parcel of land as they awaited the determination of the case. 116.He confirmed that at the time his deceased father was entering into the said agreement, he was sick. 117.He also confirmed that the 2nd Defendant did not attend the said meeting and admitted that at the time of the meeting, the road on the map was in existence. 118.He further confirmed that the access road on the map was commonly known as it was passing through family land. 119.He was then referred to photographs that were marked as MFI D2 and he confirmed that he had never seen the tea bushes and the grave site that were on the said photographs. 120.He confirmed that he knew the borehole that was on the suit parcel of land and stated that the borehole, grave site and tea bushes blocked the access road. 121.He also confirmed that the borehole was dug in the year 1984. 122.He denied that the place he wanted the access road to be established had tea bushes and a grave site. 123.He admitted that the tea bushes depicted on the photographs were planted between the year 1986 and 1987. 124.He confirmed that his deceased father had planted his tea bushes earlier. 125.He also confirmed that the access road on the map was blocked on the ground by tea bushes and a grave site as could be seen from the photographs. 126.He stated that the 2nd Defendant buried his mother a few meters from where the road was. 127.He stated that it was not true that he had no claim against the 2nd Defendant. 128.Upon re-examination, he was referred to the Registry Index Map that was produced as Exhibit P5 and he confirmed that the access road led to nowhere. 129.He stated that it was open on one end and closed on the other end. 130.He also stated that the access road did not lead to land parcel No. 655. 131.He further stated that the 1st Defendant used to use the access road that was on land parcel No. 615. 132.He stated that he first became aware of the road that was on the map between the year 1994 to 1995 and got the rest of the information from his deceased father. 133.He reiterated that his deceased grandfather was the owner of all the parcels of land and stated that the 2nd Defendant was given his parcel of land by their grandfather and explained that this was during the first registration of the land. 134.When he was referred to the surveyor’s report dated 26th October, 2018 produced as (Exhibit P6), he read out paragraph 3 as follows;“It is also claimed by the village elders that the road drawn on the Registry Index Map have (sic) never existed before and even if marked on the ground would serve neither Kericho/Kapsoit/3398 nor Kericho/Kapsoit/3399 unless it is extended into parcel No. 614 by about 9 meters.” 135.He stated that the road ended on land parcel No. 614. 136.He also stated that land parcel No. 655 was subdivided into land parcel No’s 3398 and 3399 but the title deeds were yet to be issued as there is no access road. 137.He again read paragraph 3 of the report and stated that the road on the ground was not provided for in the map but when connected, it joined the existing road which passed through land parcel No. 615. 138.He stated that he sued the 1st Defendant because a problem arose after the subdivision of land parcel No’s 615 and 655. 139.He also stated that there was a boundary on the ground between land parcel No’s 614, 615 and 655. 140.When PW1 was referred to document marked as MFI D1, he clarified that the said document was not a letter and explained that the said document contained minutes of a meeting that was held and that it was decided that an access road be created on their land. 141.He reiterated that the 2nd Defendant blocked the road and that is why he intentionally failed to attend the meeting. 142.He stated that his grandmother’s grave site cannot affect the access road as the access road was in existence before the grave site. 143.He also stated that the tea bushes were planted around the year 1986 in order to block the road. 144.He further stated that in the Plaint, he sought that an access road be opened on land parcel No. 615 as was stated by his deceased grandfather. 145.He stated that he was pursuing the suit on behalf of the 1st Defendant as he was victimized. 146.Kibet Isaac testified as PW2. He introduced himself as the Kericho County Land Surveyor and testified that he worked for the State Department of Land and Physical Planning. 147.It was his evidence that he was in Court to produce documents for land parcel No’s Kericho/Kapsoit/614, 615 and 655. 148.It was also his evidence that the Court issued an order that required him to establish where the access road ought to be and/or where it was. 149.It was further his evidence that on 27th September, 2018, he visited the said parcels of land and found that there was a boundary on the ground that was intact. 150.He testified that the boundary was from line B to B’ on figure 1. 151.He also testified that the said boundary separated land parcel No’s 614, 615 and 655. 152.He further testified that land parcel No. 655 was subdivided into land parcel No’s 3398 and 3399. 153.It was his evidence that the road edged in red on figure 1 on the report, was in existence on the ground as per the report by the village elders. 154.It was also his evidence that the road passed through land parcel No. 615. 155.It was further his evidence that as per the village elders, the access road provided for on the map had never existed on the ground. 156.He testified that their finding was that even if the road was open on the ground, it would not serve land parcel No. 655 unless it was extended by 9 meters. 157.He also testified that a road was marked on the Registry Index Map for land parcel No’s 3398 and 3399 which road was existing on the ground. 158.He further testified that the road marked point ‘A’ to ‘B’ on the report served land parcel No. 3398. 159.It was his evidence that their recommendations were as follows;a.Either to maintain the existing road passing through land parcel No. 615 on the ground and order for an amendment of the Registry Index Map so as to serve land parcel No’s 615, 3398 and 3399.b.The road passing through parcel 614 be opened as per the Registry Index Map and an extension of nine meters be made along line A(Prime) and B(Prime). 160.It was also his evidence that the access road passing through land parcel No. 614 did not lead to access to land parcel No. 615. 161.Upon cross examination, he confirmed that he appeared in Court after receiving summons to attend Court. 162.He also confirmed that the order issued on 13th September, 2018 required him to establish whether the access road was on land parcel No. 655 or 614. 163.When he was referred to the letter dated 20th September, 2018, that was addressed to the Chief Kapsoit Location, he confirmed that he wrote the said letter and added that it was with respect to land parcel No’s 655 and 614. 164.He confirmed that he visited the said parcels of land and the people on the ground claimed that the access road that passed through land parcel No. 615 was not provided for on the map. 165.He also confirmed that land parcel No. 655 was not in existence as it was subdivided into land parcel No’s 3398 and 3399. 166.He further confirmed that he was not aware if the owners of the resultant subdivisions of land parcel No. 655 were parties to the present proceedings. 167.He admitted that his report is dated 26th October, 2018 and he made no findings with regard to land parcel No. 655 as it had been subdivided. 168.He also admitted that the owners of land parcel No’s 3398 and 3399 access their parcels of land through the road that was established on land parcel No. 615. 169.He further admitted that the access road on land parcel No. 615 existed on the ground but was not provided for on the map. 170.He confirmed that on the map, the access road is established on land parcel No. 614. 171.He also confirmed that there were two roads that the persons who were in occupation of land parcel No. 614 could use to access the land. 172.He further confirmed that the main road was along line ‘A’ (Prime) and ‘B’ (Prime). 173.He admitted that he did not find out who were the registered owners of land parcel No’s 614 and 615. 174.He stated that the road on the ground can be further opened in such a way that it would serve land parcel No’s 3398 and 3399. 175.He also stated that as per the map, the road was on land parcel No. 614 and it ended at the tip of land parcel No. 655. 176.Upon re-examination, he stated that the Court order required him to establish the road that ought to have been serving land parcel No. 655. He reiterated that land parcel No. 655 was subdivided into land parcel No’s 3398 and 3399. 177.He reiterated that at the time he made the report, the boundary on land parcel No’s 614, 615 and 655 was intact. 178.He stated that there was no road from land parcel No. 614 to land parcel No. 655. 179.He also stated that the village elders confirmed that the road that was existing on the ground passed through land parcel No. 615. 180.He further stated that the purpose of the visit was to establish where the access road was to be and not to establish the ownership of the land. 181.Daniel Kiplagat testified as PW3. He stated that he filed a witness statement and prayed that it be adopted as part of his evidence-in-chief which prayer the Court acceded to. 182.He introduced himself as a village elder of Telanet Village. 183.It was his evidence that the Defendants are the sons of Abraham Kiptoo (Deceased). 184.It was also his evidence that Michael Too (deceased), was the eldest son of Abraham Kiptoo (Deceased), the 1st Defendant was the second son while the 3rd Defendant was the third son. 185.It was further his evidence that Abraham Kiptoo (Deceased) had other sons. 186.He testified that the dispute was over a road that led to land parcel No. 655 which belonged to the 1st Defendant. 187.He also testified that the 2nd Defendant was the registered owner of land parcel No. 615 where the initial access road was located. 188.He further testified that the first person to be given land by Abraham Kiptoo (deceased) was Michael Too (deceased) because he was his eldest son. 189.It was also his evidence that Abraham Kiptoo (deceased) owned a vast parcel of land which he subdivided amongst his sons. 190.It was further his evidence that he knew them and they were his friends. 191.He testified that the other parcels of land were registered in the names of the Defendants. 192.He also testified that in the 1980’s he went to see the 1st Defendant and the road he passed to get to the 1st Defendant’s home was on the 2nd Defendant’s parcel of land. 193.He further testified that the road passed through the 2nd Defendant’s land because the land had been subdivided. 194.It was his evidence that the 2nd Defendant was a Tea Estate Officer. 195.It was also his evidence that one day, he went to visit the 2nd Defendant so that he can assist him to get a tea number. 196.It was further his evidence that when he visited the 2nd Defendant a second time, he found that a hole had been dug on the road that led to the 1st Defendant’s home and tea planted on other parts of the road. 197.He testified that the access road was then created on Michael Too’s (Deceased) land. 198.He also testified that the 2nd Defendant closed the road but Michael Too (Deceased) could access his parcel of land. 199.He further testified that the 1st Defendant was landlocked while the 2nd Defendant had a road that he used to access his parcel of land. 200.He reiterated that the land belonged to Abraham Too (Deceased) and also reiterated that the access road ought to have passed through the 2nd Defendant’s parcel of land. 201.He testified that they are brothers and they ought to share the land. 202.He also testified that the village elders held a baraza but the 2nd Defendant refused to open the road and there was nothing else they could do. 203.Upon cross examination, he confirmed that he was one of the village elders of Telanet Village. 204.He also confirmed that he had no documents to show that he was a village elder and stated that Chiefs had documents that showed who the village elders were. 205.He further confirmed that he knew the Defendants’ deceased father. 206.He admitted that he was not present when the land was subdivided amongst the brothers and stated that that was a family affair. 207.He stated that Michael Too (Deceased) was his teacher and reiterated that the land belonged to Abraham Too (Deceased) who was his (Michael Too(Deceased)father. 208.He confirmed that Michael Too (Deceased) was the first registered owner of the suit parcel of land which land was located on the upper side. 209.He stated that the land was first registered in the year 1969 and confirmed that at no point was the land registered in Abraham Too’s (Deceased) name. 210.He confirmed that the Defendants took possession of the parcels of land that were on the lower part and stated that land parcel No. 655 was registered in the name of the 1st Defendant. 211.He stated that he was not aware if a title to land could be issued without the provision of an access road. 212.He also stated that the 1st Defendant used to complain that he did not have an access road. 213.He confirmed that Michael Too (Deceased) had a road that led to his home and admitted that he used to visit the Defendants in the 1980’s. 214.He admitted that the brothers had no problem save for the issue of the road. 215.He also admitted that the borehole was on the 2nd Defendant’s parcel of land. 216.He stated that he became a village elder in the year 1990 and also stated that the road Michael Too (Deceased) gave to the 1st Defendant has never been used. 217.He stated that it was not true that Michael Too (Deceased) gave the 1st Defendant a road. 218.He confirmed that the 1st Defendant’s parcel of land was sold and the current owner accesses it through a road that is behind the suit parcel of land and passes through a neighbor’s land. 219.Upon re-examination, he stated that he was not present when the land was shared among the brothers. 220.He reiterated that the first time he went to see the 1st Defendant, there was a road passing through the 2nd Defendant’s parcel of land. 221.He also reiterated that Michael Too (deceased) was the first to be given land and he established a boundary. 222.He stated that when the brothers disagreed, they held a meeting on the 2nd Defendant’s parcel of land. 223.He also stated that the 2nd Defendant later planted tea where the access road was to pass which tea is different from the tea that had been planted earlier on the said portion of land. 224.He reiterated that the parties to the suit were his friends and the 2nd Defendant should give his brother an access road. 225.Joshua Kipkorir Tonui testified as PW4. He stated that he filed a witness statement dated 25th October, 2019. He prayed that it be adopted as part of his evidence-in-chief which prayer the Court acceded to. 226.It was his evidence that he was present in Court to give evidence about a road that was blocked which culminated to a dispute that started in the year 1990 to date. 227.It was also his evidence that the said road used to pass through land parcel No. 615 to land parcel No. 655. 228.It was further his evidence that the Defendants are his ‘step fathers’ as they are brothers to his father. 229.He testified that Ann Too (Deceased) was his step mother. 230.He also testified that the 1st Defendant was the registered owner of land parcel No. 655 while the 2nd Defendant was the registered owner of land parcel No. 615. 231.He further testified that the access road was to pass through land parcel No. 615 towards land parcel No. 655. 232.It was his evidence that land parcel No’s 615 and 655 were initially one parcel of land which land belonged to his deceased grandfather one Abraham Arap Leityon. 233.When he was referred to the Registry Index Map produced as Exhibit P5, he testified that there was an access road on land parcel No. 614. 234.He also testified that the road was to pass through land parcel No. 615 because it was shared by two persons. 235.In his witness statement, PW4 states that the 1st Defendant was his father and he was deceased. 236.He also states that his deceased father used to access his parcel of land through the access road that was on land parcel No. 615. 237.He further states that the 2nd Defendant later blocked the access road and dug a bore hole before planting tea bushes. 238.He states that he was informed by Michael Langat (Deceased) and Matayo Kilel (Deceased)that the access road to land parcel No. 655 was on land parcel No. 615. 239.Counsel for the Defendants was not present in Court when PW4 gave evidence and he was therefore not cross examined. 240.Rachael Chepkorir Too testified as PW5. She stated that she filed a witness statement dated 28th October, 2019. She prayed that the said statement be deemed as part of her evidence-in-chief which prayer the Court acceded to. 241.It was her evidence that she knew the 1st Defendant and that she was in Court to testify about a road that was blocked by the 2nd Defendant. 242.It was also her evidence that the road that was blocked led to the 1st Defendant’s parcel of land. 243.It was further her evidence the said road was blocked a long time ago. 244.She testified that Anne Too (Deceased) was the sister-in-law to the Defendants and there was no road passing through her land. 245.In her witness statement, she states that in the year 1983, the 2nd Defendant dug a bore hole on the access road that led to the 1st Defendant’s parcel of land. 246.She also states that a report was made to the Chief in the year 1990 and it was agreed that Michael Too (Deceased) would open an access road on his parcel of land to be used temporarily. 247.She also states that the 2nd Defendant was not present during the meeting. 248.She further states that she was informed that the 2nd Defendant subdivided their land without their consent and shifted the access road. 249.Counsel for the Defendant was not present when PW5 testified and she was therefore not cross examined. 250.Kipsiele Ruto testified as PW6. It was his evidence that the 2nd Defendant blocked the road that the 1st Defendant used to use to access his land. 251.It was also his evidence that the 2nd Defendant dug a bore hole and planted tea on the said road which rendered the road impassable. 252.It was further his evidence that the Defendants are brothers and they were his neighbours. 253.He testified that he was not related to the Defendants and also testified that Michael Too (Deceased) was one of the brothers of the Defendants. 254.PW6 was also not cross-examined for the reason that Counsel for the Defendant was not present when he testified. 255.The Plaintiff’s case was then closed. Defendants Evidence. 256.Jonah Langat is the 2nd Defendant. He was the first witness for the defence and shall herein after be referred to as DW1. He stated that he filed a witness statement dated 28th November, 2019 and prayed that the Court adopts it as part of his evidence-in-chief which prayer the Court acceded to. 257.He also stated that he filed a list of documents dated 30th January, 2020 which he wished to rely on. 258.It was his evidence that the Plaintiff is the son to his deceased brother Michael Too. 259.It was also his evidence that the 1st Defendant was his brother and that he is also deceased. 260.It was further his evidence that he needed the Court to issue an order to allow them use the access road that was on the ground which road led to the cattle dip. 261.He testified that he is the registered owner of land parcel No. Kericho/Kapsoit/615 while Michael Too (Deceased) was the registered owner of land parcel No. Kericho/Kapsoit/614. 262.He also testified that land parcel No. Kericho/Kapsoit/655 is registered in the name of Kiprono Arap Langat (Deceased). 263.He further testified that they were all given land by their deceased father. 264.It was his evidence that their deceased father did not register the land in his name and he instead had it registered directly to their names. 265.It was also his evidence that surveyors went to the land before the land was registered in their names. 266.It was further his evidence that the Plaintiff was the son of Anna Too (Deceased) who closed the access road and the Plaintiff then blocked it. 267.He testified that he had a letter dated 5th December, 2011 that was from the Lands Office and addressed to Anna Too (Deceased) through their area Chief. 268.He also testified that the letter was copied to the District Surveyor and Kiprono Langat (Deceased). He produced a copy of the letter dated 5th December, 2011 as Exhibit D1. 269.He further testified that in the said letter, Kiprono Langat (Deceased) complained that the access road he was using was closed. 270.It was his evidence that he was not the one who closed the access road. 271.It was also his evidence that before the present suit was filed, they sat at home to try and resolve the dispute. 272.It was further his evidence that he had an agreement dated 4th December, 1990 which agreement was between Michael Too (Deceased) and Kiprono Langat (Deceased). The letter was marked as MFI-D2. 273.He testified that he had a map which showed that there was an access road that passed through land parcel No. 614. 274.When he was referred to the survey report ( produced as Exhibit P6) he testified that the Surveyor referred to land parcel No’s 3398 and 3399 which parcels of land are resultant subdivisions of land parcel No. 655. 275.He read out finding No. 3 as follows;“It is also claimed by the village elders that the road drawn on the Registry Index Map have (sic) never existed before and even if marked on the ground would serve neither Kericho/Kapsoit/3398 nor Kericho/Kapsoit/3399 unless it is extended into parcel No. 614 by about 9 meters.” 276.It was his evidence that he was not concerned about the dispute before Court as he had already opened another road. 277.It was also his evidence that if he opened the road on his land, then he will use it to take the cows to the cattle dip and/or river and also drive his tractor. 278.It was further his evidence that the Plaintiff closed the road in December, 1990 when he came from university. 279.He testified that he is not a surveyor and he did not therefore amend the Registry Index Map to include the access road. 280.He also testified that the Court should open the road so that they can use it. 281.He further testified that the surveyor visited the land and found that the road exists. 282.It was his evidence that the Surveyor recommended that the access road on the ground be extended by 9 meters. 283.In his witness statement, he states that his deceased brother Michael Too at one point went to the suit parcel of land in the company of two surveyors and gave the name of one of surveyors as Daniel Kirui. 284.He further states that as the surveyors were surveying the land, he asked Michael Too (deceased) why land parcel No. 614 was bigger than land parcel No’s 615 and 655. 285.He states that Michael Too (deceased) told him that they would later subdivide the said parcels of land equally. 286.He also states that in November, 1990, when Michael Too (deceased) went to his farm in Njoro, the Plaintiff hired a tractor and ploughed the farm. 287.He further states that the tractor ploughed the road and the Plaintiff later fenced the road thereby blocking it completely. 288.He states that when Michael Too (deceased) came back from Njoro, he found the road blocked and he was not happy about it. 289.He also states that Michael Too (deceased) called the village elders who included;a.Matayo Kilel (deceased)b.Kimitei Koech (deceased)c.Philipu Rono (Deceased)d.Kipsiele Rutoe.Henry Kibore Mitei (Secretary) 290.He also states that Kipsiele Ruto and Kibore Mitei signed the letter dated 4th December, 1990 wherein the elders agreed that the access road should be opened so that the 1st Defendant’s home could be accessible. 291.He further states that after the said meeting, Michael Too (deceased) planted a line of Mauritius Thorns to mark the access road from the main road. 292.He states that they invited surveyors to go to the ground and help them in resolving the dispute but the Plaintiff went to Court and an order was issued blocking the re-opening of the road. 293.He also states that the Surveyors wrote several letters that included the dates for their intended visit. They included;a.Letter dated 5th December, 2011 which showed that they intended to visit the land on 21st December, 2011.b.Letter dated 5th July, 2012 which showed that they intended to visit the land on 19th July, 2012.c.Letter dated 27th August, 2012 which showed that they intended to visit the land on 6th September, 2012.d.Letter dated 4th March, 2015 which showed that they intended to visit the land on 4th March, 2015. 294.He further states that eventually the Court issued an order on 6th October, 2018 that allowed the surveyor to visit the land on 27th September, 2018. 295.He states that the surveyor recommended that the road drawn on the Registry Index Map which was on land parcel No. 614 be extended by 9 meters so that it could serve land parcel No. 655. 296.He also states that his prayer is that the road be opened as recommended by the surveyor and land parcel No’s 614, 615 and 655 be subdivided equally. 297.Upon cross-examination, DW1 confirmed that he had the Registry Index Map which showed that the access road was on land parcel No. 614. 298.He also confirmed that the Surveyors went to the ground and prepared a report that was produced in Court as Exhibit P6. 299.He was referred to finding No. 3 which he had earlier read and he confirmed that the Surveyor found that the existing access road could not serve the 1st Defendant’s parcel of land. 300.He admitted that the Plaintiff closed the access road. 301.When he was referred to the letter dated 5th December, 2011 (Exhibit D1), he read out a portion of it as follows;“He alleges that he has no access road to his land because you have closed the registered road which is supposed to serve the land.” 302.He stated that the said paragraph referred to the road that was closed by Anna Too (Deceased). 303.He also stated that he blamed the Plaintiff who was the son of Anna Too (Deceased) for the closure of the road. 304.He denied that he testified that the Plaintiff took a tractor to the access road. 305.When he was referred to MFI-D2, he confirmed that Kipsiele Ruto who was one of the Plaintiff’s witnesses, was among the people present at the meeting. 306.He admitted that he was not aware of Kipsiele Ruto’s evidence and stated that the parcels of land initially belonged to their deceased father. 307.He confirmed that Michael Too (Deceased), the Plaintiff’s father was the first one to be allocated land and he was given land parcel No. 614. 308.He also confirmed that there were village elders present when their deceased father gave them land. 309.When he was referred to the Registry Index Map that was produced as Exhibit P5, he admitted that his parcel of land was near the road. 310.He also admitted that there was another access road that he used to access his land. 311.Upon re-examination, he was referred to paragraph 2 of the Survey Report produced as (Exhibit P6) and he confirmed that the surveyor stated that there was no road marking on the sketch map. 312.He was also referred to paragraph 3 of the survey report and he stated that it was not true that the access road never existed. 313.He also stated that an access road was provided for on the map and it also existed on the ground. 314.He was referred to the letter dated 5th December, 2024 (Exhibit D1) and he stated that Anna Too (deceased) was the mother to the Plaintiff and the Plaintiff took over the suit from his deceased mother. 315.He further stated that Kipsiele Ruto(PW6) whose evidence was that the use of the road was temporary was not being honest because the access road was provided for on the map. 316.He reiterated that they were given the said parcel of land by their father and stated that the land was given to them at the same time. 317.He also reiterated that there were elders present when they were given the land and stated that one of the elders present was Mzee Arap Chesir. 318.He further reiterated that he is the registered owner of land parcel No. 615 which was next to the road. 319.He stated that he was using a temporary road to access his land and if the access road is opened, he shall use it but his brother needed it more. 320.He also stated that a tractor could not access the 1st Defendant’s parcel of land. 321.Wilson Kipkoech Too testified as DW2. He stated that he filed a witness statement dated 15th July, 2019 and prayed that the Court adopts it as part of his evidence-in-chief which prayer the Court acceded to. 322.It was his evidence that the Plaintiff was Michael Too’s (Deceased) son while the Defendants were Michael Too’s (Deceased) brothers. 323.It was also his evidence that he was related to them as he was their brother. 324.It was further his evidence that he was aware of the access road that passed through land parcel No. 614 that led to the river and cattle dip. 325.He testified that land parcel No. 614 belonged to Michael Too (deceased). 326.He also testified that he went to their village during the funerals of his brothers and he saw that the access road was blocked but it still existed on the map. 327.In his witness statement, he states that Michael Too (deceased) was a teacher at Telanet Primary School. 328.He also states that their deceased father Abraham Letyo, fenced the entire parcel of land with a wire fence and there was only one road leading to the main road. 329.He further states the road was along the boundary of land parcel No. 614 and that was the road that was registered on the map. 330.He states that the cattle used the access road to get to the cattle dip and Kipkutuny river. 331.Upon cross-examination, he confirmed that he was given land elsewhere and he did not therefore own land in Telanet Village. 332.He admitted that he knew that his brothers were allocated land and confirmed that he was not present when that happened. 333.He confirmed that Michael Too (Deceased) was allocated land first. 334.He also confirmed that he last visited Telanet Village in the year 2023 and further confirmed that the road that passed through Michael Too’s (Deceased) land was no longer in existence. 335.He admitted that the Defendants were the last to be allocated land by their deceased father and they were therefore allocated land at the same time. 336.Upon re-examination, he reiterated that among the three brothers, that is Michael Too (Deceased) and the Defendants, Michael Too (Deceased) was the first to be allocated land. 337.He reiterated that the Defendants were given their own parcels of land later and also reiterated that he was not present when their deceased father was allocating them land. 338.Isaiah Kipkorir Arap Tengech testified as DW3. He stated that he filed a witness statement dated 10th July, 2019 and he prayed that it be adopted as part of his evidence-in-chief which prayer the Court acceded to. 339.He testified that he knew the Defendants and Michael Too (Deceased) but did not know the Plaintiff. 340.He further testified that his parcel of land is three kilometers from where the Plaintiff and the Defendants live. 341.It was his evidence that he did not know all of Michael Too’s (Deceased) brothers. 342.It was also his evidence that he was employed by Michael Too (Deceased) to pluck tea on his farm for a period of one year. 343.It was further his evidence that he was present at Michael Too’s funeral. 344.He testified that there was an access road to the river and another access road from the main road to Michael Too’s (deceased) home. 345.He also testified that he could not remember the last time he was at Michael Too’s (deceased) home. 346.He further testified that it was a while since he left the homestead and he did not know if the access road was still in existence. 347.It was also his evidence that all he stated was true because he took an oath. 348.In his witness statement, he states that Michael Too’s (deceased) farm was fenced with a barbed wire fence and there was only one road which was along the boundary of land parcel No. 614 that led to the river and cattle dip. 349.He also states that the said road was registered on the map and the 1st Defendant used it to access his land. 350.Upon cross-examination, he admitted that he worked for Michael Too (Deceased) for one year. 351.He also admitted that he worked for him in the 1980’s but he could not remember the exact year. 352.He further admitted that he was not aware of any dispute between the parties and stated that he only learnt about it that day in Court. 353.He stated that he did not go back to the land to confirm the said dispute. 354.He confirmed that the Defendants and Michael Too (deceased) were brothers and admitted that there was an access road from the main road to Michael Too’s (Deceased) home. 355.He also confirmed that since he left the said home, he had not gone back. 356.He further confirmed that Michael Too’s (deceased) home was near the main road and he accessed it through the main road. 357.He admitted that he was last on the said parcels of land during Michael Too’s (deceased) funeral so he could not tell what was happening currently. 358.He confirmed that he was not present when the access road was created and could not confirm anything about it as he was only aware of the main road. 359.He admitted that he did not know Michael Too’s (Deceased) children and stated that he only knew his brothers. 360.He clarified that he knew Michael Too’s (Deceased) children by their faces and not by their names. 361.He admitted that he did not know the Plaintiff. 362.Upon clarification by the Court, he stated that the registered road was the main road and that is what he was referring to in his evidence. 363.He clarified that the road he referred to was a road that connected the main road from the river and it passed through Michael Too’s (deceased) land. 364.The Defendant’s case was then closed. Issues For Determination. 365.The Plaintiff filed submissions dated 28th January, 2026 while the 2nd Defendant filed submissions dated 2nd February, 2026. 366.The Plaintiff sets out a summary of the evidence adduced during the hearing and submits on the following issues;a.Whether there is an access road passing through land parcel No’s 615, 655 and 614.b.Whether the prayers sought in the Plaint should be granted.c.Who should bear costs. 367.On the first issue, the Plaintiff submits that it is not in dispute that he is the registered owner of land parcel No. Kericho/Kapsoit/614. 368.The Plaintiff also submits that it is further not in dispute that the 2nd Defendant is the registered owner of land parcel No. Kericho/Kapsoit/615 while land parcel No. Kericho/Kapsoit/655 was registered in the name of the 1st Defendant. 369.The Plaintiff further submits that the only issue in dispute is with regard to the access road. 370.It is the Plaintiff’s submissions that as per the Registry Index Map produced as Exhibit P3, the access road was on land parcel No. 615 and it was meant to serve the persons in occupation of land parcel No. 655. 371.It is also the Plaintiff’s submissions that even though the access road is provided for in the map, it does not exist on the ground. 372.The Plaintiff sets out the evidence of the Surveyor and submits that the access road that was on the ground did not exist on the map. 373.It is further the Plaintiff’s submissions that land parcel No. 655 was subdivided into land parcel No’s 3398 and 3399. 374.The Plaintiff sets out a summary of his evidence and the evidence of the 2nd Defendant. 375.The Plaintiff submits that the 2nd Defendant filed a further statement where he stated that the Plaintiff’s father opened an access road on the suit parcel of land because he had empathy for the owners of land parcel No. 655. 376.The Plaintiff also submits that the Court should make a finding that the original access road passes through land parcel No. Kericho/Kapsoit/615 as per the Registry Index Map and the access road on the suit parcel of land is not provided for. 377.On the second issue, the Plaintiff relies on Section 3(1) of the Trespass Act, Clark & Lindsell on Torts 12th Edition, the judicial decisions of Park Towers Limited versus John Mithamo Njiika & 7 Others [2014]eKLR, Reid, Hewitt & Co v Joseph, AIR 1918 Cal 717, Myres vs Defries (1880) 5 Ex D 180 and concludes his submissions by urging the Court to allow the prayers sought in the Plaint. 378.The 2nd Defendant sets out a summary of the evidence that was adduced during the hearing and submits on the following issues;a.Whether the Plaintiff’s parcel of land LR No. Kericho/Kapsoit/614 has been encroached by the 2nd Defendant.b.Whether the 2nd Defendant is the trespasser on the suit property known as LR No. Kericho/Kapsoit/614.c.Who should bear costs of the suit. 379.The 2nd Defendant submits that he is the registered owner of land parcel No. Kericho/Kapsoit/615 while the Plaintiff is the registered owner of land parcel No. Kericho/Kapsoit/614. 380.The 2nd Defendant relies on Section 26(1) of the Land Registration Act and submits that the dispute in the present suit is a boundary dispute which was resolved by the surveyor who filed the report dated 17th September, 2019. 381.It is the 2nd Defendant’s submissions that the surveyor established the boundary between land parcel No’s Kericho/Kapsoit/655 and 614. 382.It is also the 2nd Defendant’s submissions that the original map sheet No. 14 of Kericho District Rift Valley Province Mosop Kapsoit registration section 57th Edition shows that there is an access road provided for land parcel No. Kericho/Kapsoit/655. 383.It is further the 2nd Defendant’s submissions that the sketch map attached to the surveyor’s report shows that there is an access road. 384.The 2nd Defendant submits that the Surveyor’s report should be implemented as it will not prejudice the parties. 385.The 2nd Defendant also submits that the Plaintiff did not adduce any evidence to show that the access road should pass through land parcel No. Kericho/Kapsoit/615. 386.The 2nd Defendant further submits that the Plaintiff did not adduce any evidence to show that he was the one who opened an access road on land parcel No. Kericho/Kapsoit/614. 387.It is the 2nd Defendant’s submissions that both him and the Plaintiff have access to their parcels of land and he is therefore not seeking for the opening of any access road. 388.It is also the 2nd Defendant’s submissions that the Plaintiff is guilty of blocking the access road that that led to land parcel No. Kericho/Kapsoit/655. 389.On the second issue, the 2nd Defendant submits that trespass is actionable per se and it is evident that he has never trespassed onto the suit parcel of land. 390.The 2nd Defendant concludes his submissions by urging the Court to dismiss the Plaintiff’s suit with costs. Analysis And Determination. 391.After considering the pleadings, the evidence adduced by the parties and their respective witnesses together with their submissions, it is my view that the following issues arise for determination;a.Whether the Defendants encroached onto land parcel No. Kericho/Kapsoit/614b.Whether the prayers sought in the Amended Plaint should be granted.c.Who should bear costs of the suit. Summary of Evidence and Documents. 392.I shall start by briefly summarizing the evidence of the parties herein and the documents produced either is support of the claim or in opposition to it. 393.It is the Plaintiff’s case that he is the son of Annah Chelangat Too (deceased) the registered owner of land parcel No. Kericho/Kapsoit/614. 394.It is also the Plaintiff’s case that the 1st Defendant was the registered owner of land parcel No. Kericho/Kapsoit/655 while the 2nd Defendant is the registered owner of land parcel No. Kericho/Kapsoit/615. 395.It is further the Plaintiff’s case that as per the Registry Index Map of the area, there is an access road on land parcel No. Kericho/Kapsoit/615 which led to land parcel No. Kericho/Kapsoit/655. 396.It is the Plaintiff’s case that the 2nd Defendant closed the access road on land parcel No. Kericho/Kapsoit/615 and his (Plaintiff) deceased father, allowed the 1st Defendant to pass through land parcel No. Kericho/Kapsoit/614 to access his parcel of land. 397.It is also the Plaintiff’s case that the Court should issue an order that the access road on land parcel No. 655 be reopened to allow the 1st Defendant access his land. 398.A copy of a Limited Grant of Letters of Administration Ad Litem issued in Kericho CM Ad Litem No. E016 of 2021 in the matter of the Estate of the Late Annah Chelangat Too (Deceased) issued on 5th November, 2021 to Sammy Kiprotich Sigei was produced as Exhibit P1. 399.A copy of the green card for land parcel No. Kericho/Kapsoit/614 was produced as Exhibit P2. It shows that the register was opened on 8th May, 1975 and the land measures 3.2 Ha. 400.Entry No. 1 is dated 8th May, 1975 when the land was registered in the name of Michael A. Too. Entry No. 2 is dated 30th April, 1975 when Michael Kipsige A. Too also known as Michael A. Too was registered as the owner. Entry No. 3 is dated 23rd May, 1975 when the Land Certificate was issued. Entry No. 4 is dated 31st January, 1978 while Entry No. 5 is dated 29th January, 1981. Entry No’s 4 & 5 are on registration of a charge and they are crossed out. 401.Entry No. 6 is dated 24th February, 1995 when Annah Chelangat Too was registered as the owner. Entry No. 7 is dated 24th February, 1995 when she was issued with a title deed. 402.A copy of a green card for land parcel No. Kericho/Kapsoit/615 was produced as Exhibit P3. It shows that the register was opened on 10th February, 1975 and the land measures 1.8 Ha. Entry No. 1 is dated 10th February, 1975 when Jona A. Langat was registered as the owner. Entry No. 2 is dated 14th February, 1975 and is when the Land Certificate was issued. Entry No. 3 is dated 31st January, 1978 when a charge was registered and the said entry is crossed out. 403.Entry No. 4 is dated 29th October, 1980 while Entry No. 5 is dated 15th March, 1990. Entry No’s 4 and 5 relate to a charge which was registered on the land. 404.A copy of a green card for land parcel No. Kericho/Kapsoit/655 was produced as Exhibit P4. It shows that the register was opened on 1st July, 1975 and the land measures 1.6 Ha. Entry No. 1 is dated 1st July, 1975 when Kiprono Arap Langat was registered as the owner. Entry No. 2 is dated 29th August, 2007 and it is crossed out. The next entry is also indicated to be Entry No. 2. It is dated 1st November, 2011 when the title deed was issued. 405.The Registry Index Map Sheet No. 14 was produced as Exhibit P5. The map is for Rift Valley Province, Kericho District, Mosop Location, Kapsoit Registration Section. The map has a stamp of the District Surveyor Carto Section (2) Kericho and it is dated 5th November, 2019. There is a schedule on the face of the map which shows that it has been amended 74 times. The map shows that there is a registered road that leads to land parcel No’s Kericho/Kapsoit/3399 and 3398 which are the resultant subdivisions of land parcel No. Kericho/Kapsoit/655. 406.A copy of a Surveyor’s Report was produced as Exhibit P6. The report is dated 26th October, 2018 and it states that the surveyors visited land parcel No’s Kericho/Kapsoit/614 and 615 to ascertain the position of the access road that is to serve land parcel No’s Kericho/Kapsoit/3398 and 3399. 407.The report also states that the visit took place on 27th September, 2018 and it is as follows;“Findings and Emerging Issues1.Boundary B’ exist intact on the ground and separates Kericho/Kapsoit/614 and 615.2.The road edged in red have (sic) been existing on the ground ever since according the (sic) village elders present on that date.3.It is also claimed by the village elders that the road drawn on the Registry Index Map have (sic) never existed before and even if marked on the ground would serve neither Kericho/Kapsoit/3398 nor Kericho/Kapsoit/3399 unless it is extended into parcel No. 614 by about 9 meters.4.The road marked on the Registry Index Map from Plot No. Kericho/Kapsoit/3399 through Kericho/Kapsoit/3398 do exist on the ground. ConclusionThe High Court (sic) to advice whether to maintain the existing road on the ground which is not mapped or order for an amendment to show the same or order for an amendment to the existing road to be extended into parcels (sic) No. 614 by 9 meters.” 408.A bundle of photographs was produced as Exhibit P7. The said photographs are of trees and an open field. One of the photographs is of trees and a timber structure that is at its periphery. 409.The Defendants case on the other hand is that the road the 1st Defendant used to access land parcel No. Kericho/Kapsoit/655 was closed by the Plaintiff. 410.It is also their case that the said road should be opened so that they can use it. 411.The Defendants produced a copy of the letter dated 5th December, 2011 as Exhibit D1. The letter is written by G. C Korir (Mrs) the District Land Registrar Kericho/Bureti/Kipkelion Districts and addressed to Annah Chelangat Too through the Chief Telanet Location. The subject of the letter is “Illegal closure of Road of Access Kericho/Kapsoit/655 vs 614”. The letter states that Kiprono Arap Langat the registered owner of land parcel No. Kericho/Kapsoit/655 complained that she closed the access road that led to his parcel of land. The letter also states that a site visit was to be made on 21st December, 2011 at 10 am by the District Surveyor and Land Registrar. The letter requested Annah Chelangat Too to avail herself on the said date and time. A. Whether the Defendants encroached onto land parcel No. Kericho/Kapsoit/614. 412.The Black’s Law Dictionary 11th Edition page 667 defines encroachment as follows;“1.An infringement of another’s rights.2.An interference with or intrusion onto another’s property…Formerly also spelled encroachment” 413.The word 'Encroach' is defined as to enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude; to gain or intrude unlawfully onto another's land or property without authority. 414.It would seem that both encroachment and trespass speak to unlawful intrusion. 415.Halsbury’s law of England 5th edition, Volume 97 at page 465 paragraph 563 defines trespass as follows:“A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it, or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or it, or if he erects or suffers to continue on his own land anything which invades the air space of another. He also commits a trespass to land if, having entered lawfully, he unlawfully remains after his authority to be there expires. (Emphasis mine) 416.Section 3 (1) of the Trespass Act, Cap 294 provides that:“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 shall be guilty of an offence.” (Emphasis mine) 417.Central to both the definition of encroachment and trespass is the absence of consent or authority. 418.It is not in dispute that Annah Chelangat Too (Deceased) is the registered proprietor of land parcel No. Kericho/Kapsoit/614. 419.It is also not in dispute that land parcel No. Kericho/Kapsoit/614 was initially registered in the name of Michael Too (Deceased). 420.It is further not in dispute that the 2nd Defendant is the registered owner of land parcel No. Kericho/Kapsoit/615. 421.It is not in dispute that there was an access road on land parcel No. Kericho/Kapsoit/614 that the 1st Defendant used to access land parcel No. Kericho/Kapsoit/655. It is also not in dispute that the said access road was closed by Anna Chelangat Too (Deceased) and the Plaintiff. 422.It is further not in dispute that land parcel No. Kericho/Kapsoit/655 was subdivided into land parcel No’s Kericho/Kapsoit/3398 and 3399. 423.What is in dispute is whether the Defendants encroached onto land parcel No. Kericho/Kapsoit/614 and whether there is an access road to land parcel No’s Kericho/Kapsoit/3398 and 3399 and/or where it should be. 424.I will first address the issue whether the Defendants encroached onto land parcel No. Kericho/Kapsoit/614. 425.In the Amended Plaint, the Plaintiff avers that the Defendants were threatening to create a permanent access road on the suit parcel of land. 426.During the hearing, the Plaintiff who testified as PW1 stated that after the access road on land parcel No. Kericho/Kapsoit/615 was closed, a meeting was held in the year 1990 where his father agreed that a temporary access road be created on land parcel No. Kericho/Kapsoit/614. 427.This was also the evidence of Daniel Kiplagat who testified as PW3 and Rachael Chepkorir Too who testified PW5. 428.In her witness statement, PW5 states that a meeting was held and it was agreed that Michael Too (deceased), the Plaintiff’s father would open a temporary access road on land parcel No. Kericho/Kapsoit/614. 429.From the totality of the evidence adduced, it is apparent that Michael Too, the Plaintiff’s deceased father allowed the opening of a temporary access road on land parcel No. Kericho/Kapsoit/614. 430.The Defendants cannot therefore be said to have encroached on land parcel No. Kericho/Kapsoit/614 because they had the permission, consent and/or authority of Michael Too (deceased) to use the access road that passed through it. 431.It is also emerged, during the hearing, that the said access road was initially used by both Defendants and subsequently by the 1st Defendant. The 2nd Defendant in his evidence stated that he was not concerned about the dispute before Court as he had already opened another road and added that he was using it as a temporary road to access his land. He stated that if the access road is opened he shall use it and also added that his brother (1st Defendant) needed it more. 432.The Defendants did not file a counterclaim. 433.Before concluding this question, it is important to mention that during the hearing, another issue arose. That is, whether the access road to land parcel No’s Kericho/Kapsoit/3398 and 3399 is situated on land parcel No. Kericho/Kapsoit/615 and/or where it should be. 434.I must state from the onset that the question whether the access road to land parcel No’s Kericho/Kapsoit/3398 and 3399 is situated on land parcel No. Kericho/Kapsoit/615 and/or where it should be, was not pleaded but forms part of the report of Kibet Isaac; the Kericho County Surveyor ( PW2). Evidence of a surveyor is material in proving trespass and/or encroachment. 435.PW2 (the Kericho county surveyor) testified that he visited land parcel No’s Kericho/Kapsoit/614, 615 and 655 on 27th September, 2018. 436.He also testified that they prepared a report which report was produced as Exhibit P6. It was their finding that there was an access road on the ground. It was also their finding that the access road that was provided for on the map did not exist on the ground. It was further their finding that even if the road that was provided for on the map could be mapped on the ground, it would not serve land parcel No’s Kericho/Kapsoit/3398 and Kericho/Kapsoit/3399, the resultant subdivisions of land parcel No’s Kericho/Kapsoit/655, unless the road was extended to land parcel No. 614 by about 9 meters. 437.Further, evidence was led to the fact that land parcel No. Kericho/Kapsoit/655 was subdivided into land parcel No’s Kericho/Kapsoit/3398 and 3399 which parcels of land were sold. 438.None of the parties led evidence as to who the said persons are and importantly, they are not parties to this suit. 439.Section 107 of the Evidence Act provides as follows;“(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 440.Section 108 of the Evidence Act provides as follows;“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 441.Section 109 of the Evidence Act provides as follows;“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 442.The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR held as follows;“We have carefully considered the judgement of the superior Court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. It also follows that a Court should not make any findings on unpleaded matters or grant any relief which is not sought by a party in the pleadings.” (Emphasis mine) 443.Consequently, on the question of encroachment I find that the Plaintiff has failed to prove that the Defendants encroached on land parcel No. Kericho/Kapsoit/614. 444.On the question whether the access road to land parcel No’s Kericho/Kapsoit/3398 and 3399 is situated on land parcel No. Kericho/Kapsoit/615, I find that it was not pleaded I shall neither make a finding on it nor grant any relief on it. B. Whether the prayers sought in the Amended Plaint should be granted. 445.The prayers sought in the Amended Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference;a.An order of permanent injunction restraining the Defendant (sic) by themselves, agents, servants, employees or otherwise from encroaching onto, interfering with the fence existing thereon, passing through any land, purporting to create a road of access and or doing any other act which is prejudicial to the Plaintiff’s proprietary interest in land parcel No. Kericho/Kapsoit/614.b.General damages.c.Costs and interest.d.Any other relief the Court may deem fit and just to grant. 446.Given my finding on issue (A) above, the prayers sought in the Amended Plaint cannot be granted. C. Who should bear costs of the suit. 447.The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 448.A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 449.In the result, I find that the Plaintiff’s suit lacks merit and it is hereby dismissed. 450.Each party shall bear own costs of the suit. This is because the parties to this suit are close relatives and this court is intent in ensuring that the already fractured relations between them is mended and do not disintegrate. 451.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 28TH DAY OF MAY, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Okok for the Plaintiff.Mr. Bii for the 2nd Defendant.1st Defendant – Absent.Court Assistant; Mr. Joseph Makori.