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ELCPartially Allowed· [2014] KEELC 134 (KLR)

Ezekiel Kimeli Tuitoek v Esther Chesoimo Letich & 2 others [2014] KEELC 134 (KLR)

Environment and Land Court
22 October 2014
MSMunyao Sila
549 words in judgment
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The bottom line

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Kenya's Environment and Land Court held that registered map boundaries prevail over fences and rivers, and the plaintiff claiming encroachment was actually the encroacher.

What this practically means

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Executive summary

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The plaintiff sued on 11 October 2013 claiming ownership of land parcel Nandi/Kebulonik/60 and alleging that the defendants, owners of the adjoining parcel Nandi/Kebulonik/70, had diverted a river course so as to change the boundary and encroach on his land; he sought a permanent injunction restraining them. The defendants denied the claim and asserted possession of their own parcel. On 27 November 2013 the parties consented to referral of the dispute to the County Surveyor, Nandi County, to fix the boundaries and establish any encroachment. The surveyor's report, filed 21 October 2014, found that the original boundary between the parcels was a river whose course had been diverted over time; he retraced the boundaries from the Registry Index Map using GPS co-ordinates and found that it was in fact the plaintiff who had encroached onto parcel No. 70. He recommended that the existing southern fence boundary be retained and the RIM amended, a position the plaintiff supported but the defendant opposed. Apart from the southern boundary, both parties agreed to adopt the report as the court's judgment and asked the court to determine only the southern boundary. The court held that the boundary must conform to the current RIM, requiring the plaintiff to move his boundary from point 8-d-7 to point 8-9 on the southern side, and to maintain the surveyor's marked boundaries on the western side irrespective of the river course. Judgment was entered in accordance with the survey report dated 17 October 2014 save for the southern boundary; the plaintiff was given 60 days to move the boundary, and, given the parties' cooperation, each party was ordered to bear their own costs.

Key legal issues

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01

Fixing of the boundary between the parties' parcels where the river course forming the original boundary has been diverted

Holding

Boundaries are to be fixed by tracing from the Registry Index Map and GPS co-ordinates as done by the County Surveyor; the ground/fence boundary 8-d-7 is rejected in favour of the RIM boundary 8-9, and the plaintiff is to move the boundary within 60 days.

Reasoning

The court with the parties' consent referred the dispute to the County Surveyor, who retraced the boundaries from the RIM using GPS co-ordinates after finding the original boundary was the river, whose course had been diverted over time. The surveyor found it was the plaintiff who encroached on parcel No. 70. Both parties agreed to adopt the report save for the southern boundary, which the court determined itself, holding the RIM must prevail over the fence line. The court also discouraged alteration of the river course on environmental grounds.

p. 1
02

Adoption of the County Surveyor's report as judgment of the court

Holding

On the consent of the parties, the report dated 17 October 2014 is adopted as the judgment of the court except on the contested southern boundary.

Reasoning

Both parties agreed to the report being adopted as judgment, asking only for the court's determination on the southern boundary. The court entered judgment in accordance with the report on all other aspects and ordered the plaintiff to reposition the boundary within 60 days, exercising discretion to order that each party bears their own costs given the parties' cooperation.

p. 2

Legal principles established

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    Court orders

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    1. 1.The survey report dated 17 October 2014 is adopted as the judgment of the court, save for the southern boundary
    2. 2.The southern boundary is to be in accordance with the RIM, that is points 8-9, and not the existing ground boundary 8-d-7
    3. 3.The plaintiff is ordered to move the boundary as directed within the next 60 days
    4. 4.On the western side, where the river course is situated, the plaintiff is to maintain the boundaries as marked by the surveyor irrespective of the river course
    5. 5.Each party to bear their own costs
    Jurisdiction invoked
    Original civil jurisdiction of the Environment and Land Court over land parcel boundary disputes ( suit by plaint under civil procedure; boundary referred to the County Surveyor, Nandi County)

    Key timeline

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    Practical implications

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    Frequently asked questions

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    Cite this brief

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    Cite this brief

    Caselaw, "Ezekiel Kimeli Tuitoek v Esther Chesoimo Letich & 2 others [2014] KEELC 134 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/134/eng@2014-10-22

    Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.