Mose v Board of Management, Kiomiti D.O.K Primary School & another [2025] KEELC 2949 (KLR)

Mose v Board of Management, Kiomiti D.O.K Primary School & another (Environment & Land Case 467 of 2015) [2025] KEELC 2949 (KLR) (25 March 2025) (Judgment)

Neutral citation: [2025] KEELC 2949 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisii

Environment & Land Case 467 of 2015

M Sila, J

March 25, 2025

Between

Simion Momanyi Mose

Plaintiff

and

The Board of Management, Kiomiti D.O.K Primary School

1st Defendant

St. Joseph’S School for the Blind

2nd Defendant

Judgment

1. This suit was commenced through a plaint filed on 15 October 2015 originally only against the 1st defendant. The plaint was amended on 15 December 2015 to incorporate the 2nd defendant. The plaintiff pleads to be the registered proprietor of the land parcel Nyaribari Masaba/Boguche/1623 measuring 0. 5 Ha. He contends that in September 2015, the defendants trespassed into his land, erected a fence, and constructed permanent structures, being classrooms and washrooms, and thus he has been dispossessed and deprived of the use of his land. In the amended plaint, he seeks the following orders :a.Permanent injunction restraining the defendants from encroaching onto, trespassing onto, cultivating and/or constructing structures and/or in any manner whatsoever dealing with the suit land and/or any portion thereof that is LR No. Nyaribari Masaba/Boguche/1623. b.Costs of the suit.c.Such further and/or other relief as this Honourable Court may deem fit and expedite so to grant.

2. The 1st defendant filed a defence wherein she pleaded to be the registered owner of the land parcel Nyaribari Masaba/Boguche/1120 (parcel No. 1120) which shares a boundary with the plaintiff’s land parcel Nyaribari Masaba/Boguche/ 1623 (parcel No. 1623). She denied erecting any fence or structures as no money had been allocated to it for development. She pleaded that the Kiomiti Primary School has about 600 students and they have adequate classes and they have not needed to make any other structures. She denied trespass. She also pleaded that there is another suit where the title of the plaintiff is contested that is the case Kisii ELC No. 197 of 2000.

3. I have not seen a defence of the 2nd defendant. It however emerged in evidence that the 2nd defendant is the proprietor of the land parcel Nyaribari Masaba/Boguche/1121 (parcel No. 1121) which also borders the suit land i.e the parcel No. 1623 belonging to the plaintiff.

4. The plaintiff’s evidence was largely contained in his witness statement dated 14 October 2015 filed with the original plaint at which time only the 1st defendant was a party. The statement is pretty brief. In it he averred that he bought the suit land and that he was issued with title to the suit land on 15 May 2014. He stated that Kiomiti DOK Primary and Nursery School had encroached into his land and started erecting washrooms and classrooms. Cross-examined, he testified that the suit land resulted from a subdivision of a parcel No. 527 which was in name of Simeon Mose Omiti his step-uncle. He divided the land into two portions to result into the land parcels No. 1623 and 1624 both of which are registered in the name of the plaintiff. His explanation was that he bought the parcel No. 527 from his uncle and he caused the subdivision for speculative purposes. The suit land is 0. 5 Ha and the other parcel i.e parcel No. 1624 measures 0. 96 Ha. He operates a private school in the suit land and his home is in the parcel No. 1624. He was referred to some survey reports including one dated 19 November 2018 which showed that the parcel that the plaintiff has a dispute with is actually the parcel No. 1121 owned by the 2nd defendant. It measures 0. 1ha in the title but occupies 0. 13ha on the ground. The report also shows that he (plaintiff) occupies 0. 54 Ha which is more than the 0. 5 ha in his title. In essence the 2nd defendant occupies an excess of 0. 03 Ha and he (plaintiff) occupies an excess of 0. 04 Ha. He however stated that he does not agree with this report. According to him, any excess above 0. 1 Ha should belong to him. He affirmed that he has no dispute with the land parcel No. 1120 (of the 1st defendant) though he claimed that the headmistress had put up structures on his land; he had no proof of this allegation.

5. With the above evidence the plaintiff closed his case.

6. The defendants called two witnesses. DW-1 was Oswera Cecilia Harriet, a Land Registrar in Kisii. Her evidence was that a boundary dispute was reported at their offices regarding the boundaries of three parcels of land being the land parcels No. 1623 belonging to the plaintiff, and the land parcels No. 1120 registered under the Gusii County Council and reserved for Kiomiti Primary School and the parcel No. 1121 also under the Gusii County Council reserved for the Diocese of Kisii, Kiomiti DOK Primary and Nursery School. A visit was conducted and pursuant thereto a report dated 19 November 2018 was prepared. The findings therein did not conclude that the defendants had encroached into the plaintiff’s land. The report showed extra acreage occupied by the plaintiff under the parcel No. 1623 of 0. 04 Ha, and an extra 0. 03 Ha occupied by the parcel No. 1121. In her opinion, it was best to maintain the boundaries as they currently exist on the ground. Cross-examined, she stated that the parcel No. 1121 is an original adjudication number and there is no record that it was transferred from the plaintiff’s father.

7. DW – 2 was Leah Chepkemoi Chelimo, Head Teacher of Kiomiti DOK Primary School, the 1st defendant. She joined the school in 2018 when the dispute was ongoing. She testified that until 2018, the two schools named as defendants were integrated as Kiomiti DOK School and the Special School. In 2018, they were separated into two schools; so now we have Kiomiti DOK Primary Schol and St Joseph Kiomiti Special School for the Blind as separate schools. Kiomiti DOK occupies the land parcel No. 1120 while the Special School occupies the land parcel No. 1121. According to her there is no issue regarding their parcel No. 1120 and the issue is between the plaintiff’s land parcel No. 1623 and the parcel No. 1121 for the Special School. She thought that she has been unfairly dragged to court.

8. With the above evidence the defendants closed their case.

9. I invited counsel to file their submissions and I have seen the submissions of Mr. Nyakundi learned counsel for the plaintiff. It would appear that learned State Counsel for the defendants did not file submissions. I take the following view of the matter.

10. It is not in issue that the plaintiff is the registered owner of the land parcel No. 1623, which on paper, i.e in the title documents, is shown to measure 0. 5 Ha. He has of course contended that the defendants have trespassed into his land and built some structures on it which is of course disputed. An issue such as this depends largely on survey reports and there was an elaborate report dated 19 November 2018 outlining the dispute. That report does not mention any encroachment by the occupiers of the land parcels No. 1120 and 1121 into the plaintiff’s land. In fact, the report does not mention the parcel No. 1120 at all and there was no purpose in suing the 1st defendant as proprietor of this land parcel No. 1120. There is no dispute between the plaintiff and the proprietor of this land parcel No.1120.

11. What the report further elaborates is that the plaintiff occupies more land on the ground than what is shown in his title; he occupies 0. 54 Ha and not the 0. 5 Ha shown in his title deed. On the other hand, the neighbouring land parcel No. 1121 occupies 0. 13 Ha which is more than what is displayed in the title deed i.e 0. 1 Ha. The writers of the report, Mr. Steve Mokaya, Land Registrar and Mr. Charles Bosire, the County Surveyor, thought it best to proportionately distribute this extra acreage so that the parcel No. 1121 be reduced to bring its final acreage to 0. 11 ha and the reduced acreage be added to the plaintiff’s land to bring it to 0. 56 ha. But this clearly is not a proportionate redistribution but a reduction of the acreage of what is occupied on the ground by the land parcel No. 1121. When Ms. Oswera testified, she was of the view that the boundaries should be left according to the current occupation i.e as they are.

12. In his evidence, the plaintiff argued that all the extra acreage occupied by the two parcels of land should belong to him, and that the school, i.e owner of parcel No. 1121, should be content with what is in its title, i.e 0. 1 Ha. Well, the same argument can be used against him; it can as well be argued that all the extra acreage should go to the school owning the parcel No. 1121 and the plaintiff should be content to keep only what is in his title, i.e 0. 5 Ha.

13. I would think, and I am persuaded, that Ms. Oswera’s view is the best; that the boundaries be retained as they are. That would mean that the plaintiff maintains what he is in occupation of i.e 0. 54 Ha and the 2nd defendant maintains what it is in occupation of, i.e 0. 13 Ha. It was said that these boundaries are well demarcated on the ground so there should be no issue regarding their parameters. That is the order I will make, i.e the plaintiff’s land may be increased to 0. 54 Ha on account of what he is in occupation of, and the 2nd defendant’s land be increased to 0. 13 Ha on account of what it occupies so long as this does not disrupt any other neighbouring land. The parties are at liberty to effect these changes in the Land Registry and Department of Survey. What is important is that they maintain their current occupation without disturbing or interfering with the possession of the other or with any other parcel of land.

14. There was certainly no case of trespass before me against any of the defendants. There was particularly no case at all against the 1st defendant as owner of the parcel No. 1120. The case of the plaintiff against the 1st defendant is dismissed with costs. The plaintiff’s case against the 2nd defendant is compromised by the orders above and I make no order as to costs for or against the 2nd defendant.

15. Judgment accordingly.

DATED AND DELIVERED THIS 25 DAY OF MARCH 2025JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURT AT KISIIIn the presence of :Michael Oyuko – Court AssistantParties - AbsentM/s Sagwe & Co for the plaintiff – AbsentState Law Office for the defendants – Absent