It is common ground that the two parties have a common ancestor. They are members of an extended family comprising two sub-family units. The plaintiff and his younger brother Soho Nor (P.W.1) belong to one sub-family unit. The parties’ forbears had inhabited together an old settlement where they lived and farmed. There was also another farming area where it would appear each member of the family cultivated. At some stage, members of the family abandoned the old settlement for the new settlement where they used to farm with each person occupying where his immediate predecessor used to farm. The parties’ predecessors lived and farmed peacefully in the new settlement for some time until the defendants who had been on sojourn to Gongola and Yandev started to return to establish homes in the new settlement. The first defendant was the first to return and on his return he sought the permission of the plaintiff to settle in the new settlement. Thereupon, the land including the portion now in dispute was shared into two, one for the plaintiff’s sub-family and the other for the 1st defendant’s sub-family. Thereafter, the 1st defendant demarcated the boundary between the two portions with melina trees. Trouble, however started when 3rd defendant returned from his sojourn and requested from the 1st defendant where to settle. The 1st defendant inherited his portion from his fore-father. He stated that on 9/6/86 the 3rd defendant requested for a piece of land from him and that when he refused the 3rd defendant hired people to clear the land in dispute and cultivated soya-beans thereon. He said he reported the matter to his kindred head menger Kune who asked the defendants to leave the land. In 1987, the defendants moulded blocks to build on his land, he objected and reported them to the clan head who ordered them out but as they refused, he commenced the present action. The defendants’ case is that the land in dispute is where their mother used to farm. The Area court gave judgement to the appellant.

Respondents appealed to the High Court in its appellant jurisdiction, which reversed the decision of the Area Court. Appellant dissatisfied appealed to the Court of Appeal.