The plaintiff’s case
9.When the case came up for hearing, Richard Kibor (PW1) relied on minutes of April 12, 2013. He informed the court that the defendants are their neighbours and that the defendants do not have boundary features different from theirs.
10.PW1 Further informed the court that the defendants’ land borders their land; that the defendants have encroached on a small portion of their land, measuring 15 acres and that Nguryo, Sirya, Sosotwo, Boyotwoo, Tereu and Tumberelwo are boundary marks of their land.
11.Concerning the Minutes of a meeting held on February 13, 1989, he informed the court that they were authored by John Kwambai.
12.PW1 further informed the court that he is aware of the meeting held on January 9, 2014 chaired by the area District Officer. He stated that they did not attend the meeting because they had filed this suit. He stated he is also aware of the meeting of June 8, 2013.
13.Concerning the report by Highland Valuers, he stated that the valuation exercise was attended by representatives of both clans. Both parties showed their boundaries but did not participate in writing the report.
14.He further stated that Kaptul clan was not party to the meeting of August 20, 2013; that their clans’ boundary is marked by trees and not stones and that other than the meeting of 2013 no other meeting determined the ownership of the suit land.
15.PW2, Johnstone Kiptanui Cheptoo, informed the court the suit land is the same land that was in dispute in 1989; that during resolution of the dispute of 1989 between Kaptul clan and Shaban clan, it is the elders of Kaptobon clan who showed the boundary between them and Shaban; that at that time, there was no dispute between Kaptul and Kaptobon clans.
16.PW2 further informed the court that he attended the meeting of January 9, 2014 but did not participate because they had filed a case at that time.
17.Concerning the dispute of 2003, he stated that the dispute was between Kaptobon clan and Shaban clan which they had a case with in 1989. Like PW1, he stated that other than the meeting of April 2, 2013 no other meeting determined ownership of suit land between the plaintiffs and the defendants. He clarified that the meeting of August 20, 2003 was in relation to a different parcel of land.
The defendant’s case
18.D.W.1, Danson K. Chebon, informed the court that no decision was made in the meeting of January 9, 2014; that on January 16, 2014 the area District Officer wrote to this court giving the status of the dispute between Kaptul and Kaptobon clans and that the dispute of 2003 concerned the boundary of Kaptobon and Kapchemwel clans.
19.He further stated that the meeting of January 28, 2013 was convened by the area Assistant Chief and was attended by members of both clans, Kaptul and Kaptobon; that there was another meeting scheduled for August 30, 2013 which did not take place because they were served with court summons issued in this case and that a private surveyor visited the suit land and with the help of representatives from both clans and was shown their traditional boundaries.
20.D.W.1 further stated that they never had any meeting to address the dispute between them and that their area District Commissioner was to visit the suit land to confirm the boundaries between them but the exercise did not take place because they were served with court summons issued in this case.
21.D.W.1 denied the plaintiff’s contention that they have trespassed into the plaintiff’s land and stated that attempts to mediate the dispute between them were futile as Kaptul clan did not attend the mediation sessions. He could not tell why the plaintiffs are claiming their land.
22.In cross examination, he acknowledged that elders from their clan, Kaptobon clan, attended the meeting of 1989 between Kaptul and Shaban clan and stated that few members of their clan attended the meeting of April 2, 2013.
23.With regard to the plaintiff’s contention that the meeting of 2nd April 2013 resolved that the suit land belonged to Kaptul clan, he stated that he is not aware of that fact. Nevertheless, he acknowledged that no decision was reached in the meeting of June 28, 2013 concerning the ownership of the suit land and that no decision or resolutions were made in the meeting of January 9, 2014.
24.In re-examination, he stated that Pexbt 1 has no relevance to this suit as it does not relate to the suit property.
25.He acknowledged that he attended the meeting of April 2, 2013 and that no ownership decision was made in the meeting of June 28, 2013.
26.D.W.2, Thomas Cheboswony, a resident of Kablamet village, informed the court that Kaptul and Kaptabon clans are his neighbours.
27.He stated that he attended the meetings of June 28, 2013 and that the meeting of 1989 is not relevant to the current proceedings as the land in dispute was different from the instant case. He stated that he does not know the outcome of the meetings of 1989, 2003, April 2, 2013 and June 28, 2013.
28.D.W.3, Daniel Kiptala Chemelil, produced the valuation report prepared by his firm, Highland Valuers Ltd. The report was prepared pursuant to a court order of court issued on January 2, 2014.
29.He informed the court that they visited the site on January 4, 2014 in the company of members of the two clans.
30.During site visit, they witnessed a number of homesteads plus ruins of homesteads. He further stated that they were shown burial sites and graves of the persons captured in page 6 of their report.
31.He informed the court that their findings are captured on page 7 of the report. Concerning the findings, he told the court that the land was found to be 15 acres with several dwelling units. He produced the report as Dexbt 3.
32.In cross examination, he stated that their terms of reference were as per the order of the court issued on January 27, 2014. The size of the land was verified by the District Surveyor.
33.He informed the court that he did not visit the land but Simon Kibisoi of their office visited it therefore, his evidence is based on the report by the office.
34.At close of hearing, parties filed submissions, which I have read and considered.