https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4945

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELCLC NO. E009 OF 2023** **STEPHEN OLOISIRIRI LEKAKENY……………………………………………….…...PLAINTIFF** **VERSUS** **FLORENCE MAITO………………..…………………………………..……......1st DEFENDANT** **EMMANUEL MELIYIO KIYIAPI………………..…………………………..... 2nd DEFENDANT** **DANIEL MAITO………………..…………………………….………..……......3rd DEFENDANT** **JUDGMENT** 1. The Plaintiff, Stephen Oloisiriri Lekakeny, filed an amended plaint dated 26.03.2025 where he requested the Honourable court to enter judgment against the Defendants in the following terms; 2. Declaration that the plaintiff is the registered and/or lawful owner of LR. NO. TRANSMARA/MOITA/522 measuring approximately 4.45HA. 3. Declaration that the Defendants have trespassed onto (four) 4 Acres of LR. NO. TRANSMARA/MOITA/522 and thereby they have violated the Plaintiff’s rights to own the said suit property. The said trespass onto the four (4) Acres out of LR. NO. TRANSMARA/MOITA/522 is illegal and unlawful. 4. A declaration be issued that the four (4) Acres out of LR. NO. TRANSMARA/MOITA/522 trespassed by the Defendants belongs to the plaintiff and the said four (4) Acres form part of LR. NO. TRANSMARA/MOITA/522. 5. An order of eviction be issued against the Defendants, their agents, servants, and/or anyone acting under their instructions from LR. NO. TRANSMARA/MOITA/522 and/or the four (4) Acres trespassed into by the Defendants. 6. Permanent injunction restraining the Defendants either by themselves, agents, servants and/or anyone claiming under the Defendants from entering upon, trespassing onto, laying claim to, depositing building materials, building on, interfering with and/or in any manner dealing with the suit land that is LR. NO. TRANSMARA/MOITA/522 in general. 7. General damages for trespass. 8. Costs and interests. **Plaintiff’s Case** 1. It is the plaintiff’s case that; 2. At all material times, he has been the registered owner of all that L.R No. Transmara/Moita/522 measuring approximately 4.45 Ha, and is entitled to exclusive and absolute rights over and in respect of the suit property to the exclusion of all and sundry. 3. That the defendants have constructed houses on a portion measuring 4 acres within Transmara/Moita/522 denying the plaintiff usage of the same; which actions amount to trespass and are an outright infringement of the plaintiff’s proprietary rights of the said parcel of land. 4. On the basis of the above averments the plaintiff sought for the orders set out at paragraph 1 of this Judgment. **Plaintiff’s Evidence** 1. The Plaintiff appeared before this Honourable Court as P.W.1 and testified that he is the registered owner of Transmara/Moita/522, which he bought from Wilson Kinyamal Lekakeny. The property measured 4.45 Ha. He produced a copy of his title belonging to Wilson Kinyamal Lekakeny as P.Exhibit 2. He produced a copy of a certificate of official search dated 01.09.2023, showing the acreage as 4.45 Ha, as P.Exhibit 3. 2. As P.W.1, the Plaintiff stated that his neighbours the defendants, had bought their suit land from Mr. Joseph Leren Kubani and the original number was Transmara/Moita/487, and produced a copy of official search dated 01.09.2023 and in the name of Joseph Kubani measures 3.34 Ha as P.Exhibit 4. 3. As a witness, the Plaintiff stated that he bought the whole parcel measuring 4.45 Ha and it was transferred to him. He produced a letter dated 31.01.2020 as P.Exhibit 5, and he produced a photograph showing homestead and cattle, latrine, and trees. Photograph 5 showed a house belonging to Florence Maito with a red roof, he produced the photographs as P.Exhibit 6(a-f). 4. He also stated that when he took possession, he discovered that his portion was less than the measurements on the title by 4 acres where the 4 acres were being occupied by Florence and Emmanuel. He reported and the Land Registrar and Surveyor wrote their reports which he identified as PMFI.1 and PMFI.2. It was his case that the previous owner had tried to resolve the issue of the 4 acres but there was a delay by the Defendants. 5. P.W.1 further stated that Daniel Maito was the registered owner of the suit parcel and the son of Florence Maito. The witness stated that the disputed parcel was on the shaded part of PMFI.2 and he sought for the reliefs prayed in the plaint. 6. On cross-examination, the witness stated that Florence Maito was occupying 4 acres of his property. He stated that he had the property from Wilson Kinyamal Lekakeny in 2020 who had bought from Joseph Kubany, and taken possession in 2012 constructing a homestead thereon. 7. The witness stated that he had demolished the houses constructed by Wilson Lekakeny who had fenced the property with a live ledge which separated the two properties but there was no road between the property. Further, that Mama Florence had built a house in 2010. The witness stated that his property was flat while the property for Florence Maito had hills and valleys. 8. On re-examination the witness stated that the defendants were in his property as per the survey report. 9. Henry Otieno Owour appeared before the court and testified as PW2, it was his evidence that he had been a Government Surveyor for the past 32 years, currently stationed as County Surveyor Nyamira but previously served in Transmara. It was his testimony that he had prepared a report dated 29.09.2023 (PMFI.2) in respect of Transmara/Moita/487 and Transmara/Moita/522. It was his further testimony that in his report he had described the disputed area being the shaded area. He produced PMFI.2 as P.Exhibit 7. 10. On cross-examination he stated that he was part of the team that had visited the ground to look at the occupation of the parcels. He had used maps, he had captured the parcels that were neighbouring the suit parcel. He stated that it was his findings that the map did not conform to the Registry Index Map, and there existed differences in the RIM and on the ground, and the ideal situation would be the map to be amended so as to reflect the ground occupation, as the map is not an authority on boundaries. 11. On re-examination, the witness stated that a map is not an authority on boundaries, and that in general boundaries, maps are already in existence, so the surveyor does not fix the same but only confirms the same. 12. Mr. Job Mito Kobado the Land Registrar Migori County but formerly of Transmara lands Registry appeared before the court as P.W.3 and testified, that he had visited parcels number 522 and 487 and he had prepared PMFI.1 the report dated 26.09.2023, in which he had found that there was a clear boundary separating the two subject parcels of land. He produced PMFI.1 as P.Exhibit 8. 13. On cross-examination by Mr. Maito for the Defence, the witness stated that he was the Deputy Land Registrar in 2023; and part of the team that had visited the suit parcel and he had observed a distinct, separate boundary and no overlap on the ground. 14. He observed that both parties had purchased their respective parcels from one person Joseph Kubany, but acreage sold was different from ground occupation. It was his evidence that titles occupied approximate acreage and this was not a first registration, and it had general boundaries, where beacons are not identifiable. 15. On re-examination, the witness stated that the boundaries were general boundaries, that the whole parcel was clear; and one party was occupying more than what they had purchased. 16. After the testimony of the 3 Plaintiff’s witnesses the plaintiff’s case closed. **Defence case and evidence** 1. Vide the statement of defence dated 29th of May 2024 the defendants pleaded their defence and a counterclaim. 2. They averred ***interalia*** that; 3. They are the registered owners of Transmara/Moita/487 registered in the name of Daniel Maito and were in occupation of the same and that the same shares a common border with Transmara/Moita/522. 4. Both parcels Transmara/Moita/487 and Transmara/Moita/522 originally belonged to Joseph Lemein Kubany who sold Transmara/Moita/487 to Daniel Maito in October 2011 and transferred parcel No. Transmara/Moita/522 to Wilson Kinyamal Lekakeny who transferred the same to Stephen Oloisiriri Lekakeny. 5. The common boundary between land parcel No. Transmara/Moita/487 and Transmara/Moita/522 was demarcated by a live fence before October 2011 when the Defendants took possession of their land, which common boundary was never disputed by 2 previous occupants and the defendants have been in occupation since 2011 when he purchased the land. 6. The Defendant further avers that the plaintiff’s suit is time barred, as they took possession of the land more than 13 years ago; and are the legal and beneficial owners of the suit land. 7. Vide the counterclaim the 1st Defendant averred existence of an error/mistake on the Land register in so far as indicates the disputed portion of land as measuring 4 acres forms part of Transmara/Moita/522 and the error ought to be rectified by the court. 8. The counter-claimers pleaded entitlement of the 4 acres in Transmara/Moita/522 by adverse possession having lived thereon in open notorious and peaceful possession for a period of over 14 years, from October 2011, erecting a home thereon and in open, notorious occupation and exclusive uninterrupted possession. 9. On the strength of the defence and the counterclaim the Defendant sought for reliefs as hereunder. 10. Dismissal of the plaintiff’s suit with costs, 11. Declaration that there was an error in the land register of Transmara/Moita/522. 12. Declaration that the 4 acres form part of land parcel No. Transmara/Moita/487, 13. An order for rectification of the register of Transmara/Moita/487. In the alternative; 1. A declaration that the title of said Stephen Oloisiriri Lekakeny in respect of the disputed portion measuring 4 acres has been extinguished by the 1st Defendants adverse possession thereof for a period of more than 12 years in terms of **Section 17 and 38 of the Limitation of Actions Act**; 2. A declaration that the 1st Defendant has acquired freehold interest in the disputed portion measuring 4 acres on land parcel No. Transmara/Moita/522 by adverse possession having been in peaceful, open and uninterrupted occupation thereof for a period of more than 12 years from October 2011 to date. 3. An order do issue requiring and directing the Land Registrar Kilgoris to facilitate and/or register the 1st Defendant as the owners of the disputed portion of land measuring 4 acres to be hived off parcel number Transmara/Moita/522. 4. Costs of this suit. 5. It is important to note that on 19.03.2025, the court granted leave to the plaintiff to Amend the Plaint by way of joinder of Daniel Maito the registered owner as a defendant in the matter. 6. Daniel Maito, hitherto a listed witness, became the 3rd Defendant vide the Amended Plaint dated 26th of March 2025 in response to which an Amended statement of Defence and counter-claim dated 16th of May 2025, and a Reply to defence and defence to counter-claim dated 21st day of May 2025 were filed. 7. Daniel Maito appeared before this Honourable court as D.W.1, the registered owner of Transmara/Moita/487, who adopted his witness statement as part of his evidence in chief, and produced a copy of title deed as D.Exhibit 1, a copy of the map as D.Exhibit 2, an Aerial view of suit property as D.Exhibit 3 and a survey report as D.Exhibit 4. 8. On cross-examination the witness stated that he was issued with a title to the suit property on 19.01.2023 which title measures 3.34 Hectares but he did not know the acreage that belonged to Stephen Lekakeny but when shown P.Exhibit 1, he conceded that the acreage thereon was 4.45 Ha which was larger than his; and that Lekakeny got his title on 27.11.2020. 9. That the previous title for Wilson Lekakeny was 4.45 Ha which corresponds to what he sold to Stephen Lekakeny. The witness stated that there were two depressions on his property which were not counted as part of his property. He concedes that he did not have a survey report to indicate that the 4 acres were his; and that his property resonated with the Registry Index Map. He bought the property in 2012 but got the title in 2023. His brother and mother lived in the suit property and that from 2020 to 2023 is only 3 years and Stephen got his title in 2020. He stated that he had not sued for rectification of the plaintiff’s title. He was not present during the visit by the Land Registrar and the surveyor when they visited. He stated that the 4 acres are occupied by Florence Maito. We started living in 2012. 10. On re-examination, the witness attributed the error to be on the register and not on the ground. He stated that he took possession in 2012, and that there was a short time when the dispute commenced and the suit was filed. 11. D.W.2, Florence Chepngetich Koskei, also testified, it was her testimony that she was also known as Florence Maito. It was her evidence while adopting her witness statement that she moved into Transmara/Moita/487 in 2011 and that the suit property belonged to her son Daniel Maito who lived far away. 12. On cross-examination, the witness stated that the land officials had visited the suit property. That the disputed 4 acres belonged to her and the land officials misled the court since her son had bought 14 acres on D.Exhibit 1. 13. The witness confirmed that D.Exhibit 1 was 3.34 Hectares, though she did not know how many acres that converted to. 14. On P.Exhibit 1, the witness confirmed that the title showed 4.45 Hectares and that Stephen’s property was larger than Daniel’s property. 15. That Stephen title was issued on 27.11.2020 while Daniel’s title was issued on 15.11.2023. That the lands’ officials had misled the court. 16. On re-examination the witness stated that they were shown the boundaries of their property and they planted a live ledge and built a house. 17. He stated that he had not discussed the matter with the plaintiff but was present when the lands’ official visited the suit property. 18. The last witness D.W.3 Joseph Lemein Kubany adopted his witness statement as part of evidence in chief. It was his statement that he sold the suit property to both Wilson and Mama Maito, and the parcels were different, that he did not subdivide the properties but sold the same as per P.Exhibit 1, while the Maito’s bought 3.34 Ha as per D.Exhibit 1. The witness alluded to an error in the register as he had not surveyed the area before the sale, the witness was not aware of the findings of the land officials who he was aware had visited the suit property. 19. On re-examination the witness stated that he showed the purchasers their respective boundaries and the parcels according to the title. 20. Upon conclusion of the D.W.3 the Defence case closed parties filed written submissions. **Plaintiff’s Submissions** 1. The Plaintiff’s submissions framed one main issue for determination; whether the Defendants had trespassed into his parcel of land LR. NO. Transmara/Moita/522. 2. Regarding to this issue, the Plaintiff adduced evidence of his title deed indicating that his land measured 11 Acres while the Defendants’ parcel measured approximately 9 Acres. 3. The Plaintiff also relied on the Land Registrar’s report indicating that there’s a clear boundary separating the two subjects of land, however the disputed four (4) Acres is occupied by Mama Florence Maito. 4. Further, the Plaintiff also quoted the case **In the Environment and Land Court at Milgori ELC Case No. E004 of 2023 Joseph Obiero Ndiege V Fredrick Omino Amose & 59 Others**. 5. The Plaintiff also submitted that he presented a *Prima facie* case with a high chance of success and referred to the decision **In the High Court at Malindi Civil Suit No. E018 of 2021 Ennio Ltd. V Kenya Revenue Authority & Another and In the High Court of Kenya at Nairobi Civil Case No. 313 of 2000 Peter Kinuthia Mwaniki & 2 Others V Peter Njuguna Gicheha & 3 Others**. 6. Further, the plaintiff notes that he got registered in the year 2020 and therefore the Defendants cannot claim adverse rights over the suit property relying on the sentiments of the court **In the Court of Appeal At Nyeri Civil Appeal No. 253 of 2019 Kimathi M’Riria & 5 Others V Harun Muthomi**. 7. The Plaintiff prayed that the court dismiss the counter claim with costs and enter judgment in favour of the Plaintiff. **Defendants’ Submissions** 1. The Defendants submitted on three (3) issues for determination in this matter. 2. On issue No. 1, whether the Plaintiff proved his case on a balance of probability, the Defendants submit that the Plaintiff had the burden of proof, quoting **Sections 107 of the Evidence Act (Cap 80) and the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR.** 3. As regard to this issue, the Defendants submit that maps are not authorities on boundaries relying on the case of **Samuel Wanjau v the Attorney General & 2 Others [1991] KLR, Ethuru v Thikanyi & 2 Others (Environment & Land Case 2 of 2019) [ 2023] KEELC 21254 (KLR),** and **Azzuri Limited v Pink Properties Limited [2018] KECA 392 (KLR)**. 4. The Defendants also submitted that a permanent injunction is an equitable remedy and can only issue where a party proves lawful and enforceable right has been infringed, relying on the matter of **Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib [2018] eKLR**. 5. On issue No. 2, in the alternative whether the Defendants have acquired the 4 Acres of the disputed portion of the land by adverse possession, the Defendants submitted that time starts to run when the adverse possessor takes possession not when the registered owner becomes aware. The Defendants quoted **Titus Mutuku Kasuve v Mwaani Investment Ltd [2004] eKLR, Wambugu v Njuguna [1983] KLR 172, Section 7 of the Limitation of Action Act,** and **Kazungu & Another v Omar (Civil Appeal E042 of 2021) [2024] KECA 412 (KLR)**. 6. On issue No. 3, the effect of adverse possession on the Plaintiff’s Title, the Defendants submit that their occupation of the suit land pre-dates the Plaintiff herein who only acquired title to the remaining portion of land LR. NO. Transmara/Moita/522 in 2020, long after time started running. 7. On this issue, the Defendants submit that time for adverse possession runs with the land not with the registered owner quoting the case of **Githu v Ndeete**. 8. The Defendants pray that this Honourable Court dismisses the Plaintiff’s suit with costs and/or in the alternative allow the Defendants Counterclaim as prayed. **Issues for Determination** 1. Having analysed the pleadings, the evidence on record the submissions as considered the law, the court frames the following as issues for determination; * + - 1. whether the plaintiffs suit is merited. 2. Whether the defendant’s defence and counter-claim should be upheld? 3. What reliefs ought to issue. 4. Who bears the costs of this suit. **Analysis and Determination** 1. It is common ground between the parties that the plaintiff is the registered owner of all that parcel of land known as Transmara/Moita/522 while the 3rd Defendant is the registered owner of all that parcel of land known as Transmara/Moita/437. That the two parcels are neighbouring each other and have distinct acreages, as per their respective title deeds. 2. The gravaman of the plaintiff’s case is that the Defendants are occupying a portion measuring 4 acres of the plaintiff’s land. that the plaintiff’s property measures approximately 4.45 Ha and the plaintiff produced a copy of a title deed, (P.Exhibit 1) as well as the title deed belonging to the vendor that he had purchased from as P.Exhibit 2 and a copy of search. The Land Registrar and Surveyor produced P.Exhibit 6 and P.Exhibit 7 in which they stated the registration of the said parcels was not a first registration. 3. P.W.2 and P.W.3 vide their respective reports found that the plaintiff was occupying less acreage on the ground than was registered to him, while the Defendants were occupying more acreage than registered to them. Their finding were that the disputed 4 acres formed part of the parcel Transmara/Moita/522 belonging to the plaintiff. 4. The defendant’s case is that their occupation of 4 acres in Transmara/Moita/522 from 2011 constitutes adverse possession and they are entitled to the said 4 acres as the said occupation was open and notorious, exclusive possession and without the consent of the registered owner. 5. Has the plaintiff proved trespass as against the Defendant; 6. The plaintiff and his witness proved entitlement to Transmara/Moita/522, by virtue of being the registered owner thereof, and he produced a copy of the title which conferred to him all the rights and privileges appurtenant thereto by virtue of section 24-26 of the Land Registration Act. The two reports by the Land Registrar and Land Surveyor (pexhbit 6 and 7 ) equally confirmed that there was an encroachment on the part of the defendants on to the plaintiff’s suit. 7. The court shall now analyze the defence and issue of adverse possession before combining issues 1 and 2n and answering the same together. 8. With respect to the claim of adverse possession raised in the counter-claim in respect of the 4 acres occupied by the Defendants, the entry of and occupation of the 4 acres by the Defendants was pursuant to the mistaken belief that the 4 acres belonged to them consequently the court finds that under section 26(c)of the limitation of Actions Act, that due to the mistake of fact, time did not run for purposes of adverse possession, time only started running once the mistake was discovered. 65. The said mistake was discovered when the Land Registrar and Land Surveyor visited the suit property pursuant to orders of the court when this suit had been filed; hence the 12year period essential for adverse possession has not crystalized. On the issue of mistake of fact and section 26(c) of the limitation of Actions Act, which provides as follows ***“where, in the case an action for which a period of Limitation is prescribed, either.*** * 1. ***……………..*** 2. ***……………..*** 3. ***The action is for relief from the consequence of a mistake, the period of Limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.”*** 66. In making the above findings on when time started running find guidance in the decision in the case of Court of Appeal in the case of Alba Petroleum Limited Vs. Total Marketing Kenya Limited 2019 (KECA) 846 where the court interpreted section 26(c) of the Limitation of Actions Act. 67.At paragraph 46 and 49 of the said decision, the Court of Appeal observed as follows; - ***“46. The Appellant cited the dicta in Philip Higgras Vs. Harper (1954) IALLER, to support its submissions that there must be a prayer for relief from the consequence of mistake period we have analyzed this case and observe that the G.K House of Lords in Dulsche Morgan Grenfell Group LPLC Respondents Vs. Her Majesty Commission of Inland Revenue and Another (Appellants) 2006 G.K HL 49, held that a*** ***“Limitation period in a claim for mistake starts to run when the mistake is discovered”*** At paragraph 49 the court on to hold. ***“49. Persuaded by the foregoing dicta section 26(c) of the Limitation of Actions Act does not specify which party must have committed the mistake, it suffices that the court is satisfied a mistake of fact or law exists, and time begins to run when the mistake is discovered.”*** 68.The court thus finds on a balance of probability that the plaintiff has proven trespass by the Defendants on the suit property in view of his testimony, that of his witness and the documentary evidence produced herein, and that he satisfied the burden of proof under sections 107 to 109 of the Evidence Act. 69.The court has found that the defence of adverse possession raised by the defendants is not applicable in the circumstances of this case, thus answer to issue No. 1 and 2 the court finds that the plaintiff has proven his case and the defendants defence and counter-claim are not merited. 70.In answer to issue No. 3, the court having found the plaintiff’s claim to be merited, and accordingly judgment is entered in favour of the plaintiff as sought for in the Amended Plaint. 71.The court notes that the parties herein are neighbours and therefore directs each party to bear its own costs. Dated at Kilgoris this 29th day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA –Sylvia/Clara Mr. Ochwangi for Plaintiff Mr. Maito for Defendant