https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3087

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT BUSIA ELC CASE NO.47 OF 2017 STEPHEN OUMA OLANGO .................................... PLAINTIFF = VERSUS = HESBORNE LEIBHIZ OMUNGALA ....................... DEFENDANT JUDGMENT 1. By a plaint dated 24th February 2017, the plaintiff instituted the instant suit seeking judgment against the defendant for an order of permanent injunction restraining the defendant by himself, his servants, employees, workers, agents and or anybody claiming through him from entering into the parcel of land known as L.R NO. Bukhayo/Bugengi/3101 or a portion thereof and using the same as a road of access to L.R NO. Bukhayo/Bugengi/5127 and/or interferring with the fencing of L.R NO. Bukhayo/Bugengi/3101; special damages of Kshs.39,220/- being costs of the fence the plaintiff erected BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 1 of 18 on L.R NO. Bukhayo/Bugengi/3101 and which fence the defendant allegedly destroyed; costs of the suit and any other relief the Court may deem fit to grant. 2. As can be discerned from the averments/contentions in the plaint, the plaintiff’s suit is premised on the ground that the plaintiff is the registered owner of L.R NO. Bukhayo/Bugengi/3101 measuring 0.12 hectares or thereabouts while the defendant is the registered owner of L.R NO. Bukhayo/Bugengi/5127 measuring 0.05 hectares or thereabout; that on or about 20th July 2016, the defendant without any lawful excuse and/or lawful authority entered onto a portion of L.R NO. Bukhayo/Bugengi/3101 and began using it as a road of access to his land; that he reported the alleged encroachment to the Land Registrar who directed the District Surveyor to carry out a field check and sort out the issue; that the District Surveyor visited the site and indicated on the ground, the extent of his parcel of land L.R NO. Bukhayo/Bugengi/3101, following which he fenced BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 2 of 18 off his parcel of land as per the directions of the District Surveyor. 3. Lamenting that on 15th February 2017 the defendant unlawfully destroyed the fence he erected and once again began using a portion of his parcel of land L.R NO. Bukhayo/Bugengi/3101, in a manner likely to occasion breach of peace, the plaintiff avers that as a result of the activities of the defendant complained of, he suffered loss and damage. The particulars of loss suffered are given in paragraph 8 of the plaint thus:- a) 40 cedar poles @ 250 per piece Kshs.10,000/=; b) One 610m wire Kshs. 5,500/- c) d) e) f) g) h) Two bags of cement Kshs.1,500/- 1 Kg of nails Kshs. 120/- 3 kg of U nails Kshs. 600/- 1 Lorry of sand Kshs. 6,000/- 1 Lorry of ballast Kshs. 10,000/- Labour Kshs. 10,000/- Total Kshs. 39, 220/- BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 3 of 18 4. The defendant filed a statement of defence dated 11 th April 2017, in which he denies the allegations levelled against him and claims that the access road road in question was opened by the County Land Registrar and the County Land Surveyor after realizing that the plaintiff had blocked the access road leading to his parcel of land L.R NO. Bukhayo/Bugengi/5127; that upon visiting the suit properties, the County Land Surveyor and the County Land Surveyor established that the access road existed on the map but the plaintiff had fenced it off on the ground claiming that it formed part of his parcel of land, L.R NO. Bukhayo/Bugengi/3101, and that the plaintiff voluntarily removed the fence following the determination of the dispute concerning the access road by the County Land Registrar and the County surveyor. 5. Terming the alleged destruction of the fence by him a criminal offence in respect of which he was neither arrested nor charged in court, the defendant maintains that the fence was removed by the plaintiff after he was BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 4 of 18 ordered by the County Land Registrar and the County Surveyor to do so. 6. When the suit came up for hearing, the plaintiff who testified as PW1 relied on his witness statement dated 24th February 2017 after it was adopted as his evidence in chief. The contents of the statements are a replica of the averments contained in the plaint. He also produced all the documents contained in his two lists of documents except the report of the surveyor dated 3rd March 2020 which was marked for identification as MFI 2 and later produced by the surveyor as Pexbt 2. 7. In cross examination the plaintiff stated as follows:- “There is a party between my land and the defendant’s land. When my surveyor Cornelius Nyongesa came to visit the land the District Surveyor and the Land Surveyor were present. I was also present. They all found there was a road. BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 5 of 18 It is my evidence that the defendant trespassed onto my land and built a perimeter wall. In the process, he damaged my property. I reported to the police but the defendant was not arrested. That’s why I am seeking damages of Kshs. 39,220/-. I have not produced a valuer’s report but I know the value of my items which I purchased. I confirm that the receipts are those that I was given when I purchased the goods. It is true that the receipts do not bear my names but I was given in the shop where I purchased them. The defendant destroyed my fence so I bought those materials to repair it. The mason charged me Kshs. 10,000/- being labour charges hence the claim of Kshs. 39, 220/.” 8. In re-examination, the plaintiff stated as follows:- “The defendant is my neighbour but we purchased from different people. There was no road between our two parcels of land. BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 6 of 18 The receipts were given to me from the shop where I bought the materials. The receipts are self explanatory. Both my private surveyor and the Land Registrar were present. I do not agree with the report by the Land Registrar, Mr. Wilfred Nyaberi, dated 3rd March 2020.” 9. PW2 Cornelius Nyogesa, a Surveyor in private practice, informed the court that he visited the suit parcels, 3101 and 5127, on 3rd March 2020 in the company of the Land Registrar Mr. Nyaberi and the County Surveyor, Mr Khamadi; that the plaintiff and the defendant were present; that the purpose of the visit was to ascertain the position of the road between the two parcels of land. 10. PW2 informed the court that he prepared the report dated 3rd March 2020, (Pexbt 2). He found that the defendant had encroached the road into parcel 3101 by about 3 metres. 11. In cross examination PW2 stated as follows:- BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 7 of 18 “...from my report it reads ‘Boundary determination of Bhukayo/Bugengi/3101 -v- 5127- the 4 metre access road between the titles.’ On the ground the access road exists in some portions of parcel 3101. Between X and X4 is the correct measurement on the mutation. Sketch No. 3 is drawn from the mutation. The Kiapple was planted by the plaintiff. Court: If the plaintiff is the one who planted the Kiapple (Kayaba) why are you saying that the defendant is the one who encroached? Answer: It is the plaintiff who said so. Court: You have said so in your evidence. ...In my conclusion, I have said that the defendant to bring down the perimeter wall at his gate. Court: There is no gate on the Sketch. The defendant had encroached onto the road by putting up a perimeter wall.” BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 8 of 18 12. On re-examination PW2 stated as follows:- “The dotted line means there is supposed to be a road but there is no road. So the defendant is supposed to be from the lower side. It was the plaintiff who planted the Kiapple (Kayaba)” 13. DW1 Wilfred Nyandoro Nyaberi, who was at the material time the Land Registrar Busia, informed the Court that he received a Court Order to determine the boundary between 3101 and 5127. The parcels are separated by a 4 m wide road which starts from Busia Kisumu road. He visited the area and prepared a report which he produced as Dexbt 1. In his report, he concluded that the access road existed on the ground but ended between parcel numbers 3102 and 5202 (the owners of those two parcels said there was no road between their parcels of land). 14. DW1 further informed the court that according to position on the ground, there was a road but it was not measuring 4 metres. The plaintiff complained that the defendant had encroached into his land and wanted to extend his land BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 9 of 18 beyond the Kiapple. After hearing from the original owners of the land they did not allow that to happen. 15. On the alleged encroachment to the road, they found that the defendant’s gate had extended a bit onto the road. The Kiapple had been planted by the plaintiff many years ago and that was the boundary to his land. 16. DW1 maintained that the plaintiff wanted them to move his Kiapple fence by 3 metres onto the road which request they declined. DW1 further informed the Court that they did not agree with PW2 concerning the alleged encroachment to the plaintiff’s parcel of land by the defendant. 17. As to who between PW2 and him (DW1) the Court ought to believe, DW1 told the Court that it should believe him for the following reasons:- “the boundaries margin of error is so big; the mutation by Mr. Wekesa was drawn from unreliable adjudication maps which had not BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 10 of 18 been rectified and that the surveyor who subdivided the land did not reconcile the ground position and the record.’’ 18. DW1 asserted that there was no encroachment of parcel number 5127 into 3101. 19. In cross examination DW1 stated as follows:- “...There was a road in existence on the side of the plaintiff it was fenced with a fully grown Kiapple fence. The respondent was on the other side of the road and had erected a gate next to the road. From the information obtained from the ground, the road had been in existence for a long period of time but had been encroached upon. Both Mr. Mbugua and Paul Musumbe whom we interviewed started that there was no road when they bought their respective parcels. My observations (in my report) were that there existed a 4 metre road from the tarmac (main road-Busia-Kisumu road).” BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 11 of 18 20. Upon being referred to the mutation form (Pexbt 4) and map sheet No. 5 (Pexbt 3) 62nd Edition, DW1 acknowledged that there is no road passing through 3101. That notwithstanding, he maintained that his conclusion was that there existed a road on the ground as per the time of visit. He asserted that the defendant should adjust the area he had encroached on the road. 21. In re-examination, DW1 stated as follows:- “The 4 metre road referred to in my conclusion was created from land parcel 2485 when subdivision was done. It affected the litigants and other parties who are not present in court.” 22. The defendant who testified as DW2, relied on his undated statement filed on 11th April 2017 after it was adopted as his evidence in chief. He produced the documents attached to his statement as Dexbt 1 to 3. He asserted the averments in his statement of defence that he did not BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 12 of 18 destroy the plaintiff’s fence. He termed the plaintiff’s claim as false and the documents relied on in support of the claim fabricated. The defendant also took issue on the fact that no valuation report was filed in respect of the alleged damage. 23. In cross examination the defendant stated as follows:- “I purchased my land in dispute in 2004. My land is No..5127. The one for the plaintiff is...3101. I found him there when I purchased the land. He was already in occupation of land No. 3101. I do not know when he purchased the land or from which parcel it was hived. I was not bothered about that. When I bought my land I started building in 2014. There was a road separating my land and the plaintiff’s land. I found the road there when I bought the land. The plaintiff did not complain that I was trespassing onto his land. I am not aware that the plaintiff complained to the Land Registrar that I was trespassing to his land. BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 13 of 18 I obtained my title deed in 2024. I did due diligence. It was not fraudulent. I can see mutation form which I filed is dated 13th February 2018. So my land was created after 2018. It was the Land Registrar who prepared it. I did not sanitize any anomaly. It is not true that I created my land in 2018. It is true that I am the one who lodged the mutation dated 13th February 2018 which created my land...5127. I did not remove the plaintiff’s fence. The Land Registrar did not remove the fence. They advised the plaintiff to remove the fence. When you are buying land, it is the seller who is supposed to create the road.” 24. In re-examination the defendant stated as follows:- “The mutation form which I have produced was prepared by the Land Registrar. I did not sign it. It was prepared by the land office. The authenticity is not in dispute. I bought the land as a direct transfer. There was a road but the BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 14 of 18 plaintiff was alleging that it was on his land. The road was already in existence. It was not created in 2018.” 25. I have read and considered the cases urged by the parties in this suit. The sole issue for determination is whether the plaintiff has made up a case for being granted the orders sought. Concerning that question, whereas the plaintiff claims that the defendant had encroached on his parcel of land namely parcel number 3101, the evidence adduced in this case shows that the claim is based on the allegation that no access road existed between the plaintiff’s parcel of land and the defendant’s parcel of land. 26. Whilst it is true that no public access road exists on the Registry Index Map between the plaintiff’s parcel of land and that of the defendant, the evidence adduced before the Court shows that there existed an access road on the ground between the two parcels of land and that in fencing his parcel of land with Kiapple plants, the plaintiff took into account that fact. BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 15 of 18 27. According to DW1, despite having recognized the existence of the road on the ground, through the manner in which he fenced his land, the plaintiff wanted them to extent his fence to the area covered by the access road, which request they declined to acede to. 28. I have read and considered the explanation offered by DW1 for refusing to acede to the plaintiff’s request, the explanation offered by PW2 for concluding that the defendant had encroached on the suit property and the fact that in fencing his land, the plaintiff had given due regard to the road. It is the considered view that the position adopted by DW1, is more plausible and reflective of the rights of the parties to the suit property. 29. Arising from the foregoing, I find and hold that the plaintiff has not proved his pleaded case that the defendant had encroached on his land. I also find the plaintiff’s claim that the boundary dispute had earlier on been resolved by the Land Registrar and Land Surveyor leading to erection of BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 16 of 18 the fence he accuses the defendant of having unlawfully removed to be unproven. 30. Concerning the plaintiff’s claim for damages arising from the alleged destruction of the fence, although the fact of the alleged destruction of the fence has not been controverted by the defendant, the plaintiff has not led evidence concerning when the alleged destruction happened, by who and why he never reported the destruction to the police for investigation. For the foregoing reasons, I find and hold that the plaintiff has not proved his pleaded case on a balance of probabilities. Consequently, I dismiss it. 31. On costs, arising from the evidence of DW1 to the effect that the defendant had encroached on the access road and recommending that he moves his gate from the road, I decline to award him the costs of the suit and instead order that parties bear their own costs of the suit. 32. Orders accordingly. BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 17 of 18 Judgement dated, signed and delivered virtually at Busia this 18th day of May, 2026. L. N. WAITHAKA JUDGE In the presence of:- Ms. Juma for the Plaintiff N/A for the Defendant Court Assistant: Tracy BUSIA ELC NO. 47 OF 2017 – JUDGMENT Page 18 of 18