JUDGMENT OF KIAGE, JA
The original appellant, Peter Okore Ondu died and was substituted by his son. Similarly the 1st respondent Pius Ondu died and was substituted by his wife and children. The deceased parties were brothers who had inherited part of their ancestral land from their late father. The appellant averred in his Plaint filed in the High Court in Kakamega that the respondent, had fraudulently excised approximately 4 acres (the disputed portion) from parcel number South Kabras/Shamberere/1148 (the appellant’s parcel) and apportioned it to his property Kabras/Shamberere/1233 (the 1st respondent’s parcel). The particulars of fraud were that the 1st respondent conspired with the surveyors to unlawfully alter the original boundary between their respective parcels of land as was initially established by their deceased father before his demise.
The disputed portion, on which the appellant’s homestead was built had unlawfully been made part of the 1st respondent parcel by encroachment…