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ELCOtherNot stated in the extract (HCCC re boundary of Kajiado/Kaputei North/20 and parcels 917, 721 and 705, originally of Emboloi Group Ranch)· [2015] KEELC 775 (KLR)

Leonard Roipa Rorian Pasha v Elijah Tiende Ole Kula & 3 others [2015] KEELC 775 (KLR)

High Court of Kenya (extract does not name the division; boundary dispute over registered land)
27 March 2015
JMJ. M. Mutungi
1,809 words in judgment
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The bottom line

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Kenya's High Court threw out a Land Registrar's boundary report for not properly investigating how the land was originally surveyed, and ordered a redo.

What this practically means

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Executive summary

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This ruling by J. M. Mutungi J deals with the report of the Land Registrar, Kajiado, filed pursuant to court orders (first made by Mwera J on 7th April 2011, set aside on 20th September 2011, and reissued by Ougo J on 28th October 2011) directing the Land Registrar and District Surveyor to determine and indicate the position of the disputed boundary of parcel Kajiado/Kaputei North/20 and parcels 917, 721 and 705, originally of Emboloi Group Ranch. The Registrar's report adopted a 1990 determination and the position on the ground, yielding a variance of 47 acres, while the applicant's points indicated a 147-acre variance. The applicant faulted the Registrar for relying on the 1990 adjudication, which had been challenged in HCCC No. 5368 of 1990 and which was not noted in the register under section 22(1) of the Registered Land Act, and for ignoring the co-ordinates used in the original 1967 survey. The court held that the Registrar was required to investigate how the parcels were originally delineated, not merely confirm the ground position, and found the report non-compliant with the 2011 order. Relying on sections 16, 18 and 19 of the Land Registration Act 2012 and the repealed Registered Land Act provisions, the court set aside the Registrar's report of 23rd May 2014, referred the matter to the Chief Land Registrar to appoint a Registrar other than J. M. Wambua to fix the boundaries under section 19 with the District Surveyor, directed a joint report within 90 days, and fixed mention for 14th July 2015, with costs in the cause.

Key legal issues

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01

Compliance with the order of 28th October 2011 for boundary determination

Holding

The Land Registrar did not comply because he omitted to take account of evidence relating to the co-ordinates used to establish the original boundaries and merely relied on the 1990 ground position

Reasoning

The court read the order as requiring investigation of the boundaries having regard to how the parcels were originally delineated. The surveyor's report suggested the Registrar failed to consider the co-ordinate evidence, including whether the applicant's points matched the co-ordinate list used in the initial survey and sub-division. Reliance on the 1990 determination, itself challenged in HCCC No. 5368 of 1990 without a fixing note under s.22(1) of the Registered Land Act, did not satisfy the order.

p. 3
02

Statutory framework for fixing boundaries

Holding

Boundaries may be fixed under section 19 of the Land Registration Act 2012 after notice and hearing; section 16 allows rectification of boundary lines on the cadastral map; section 18(2) bars court action until such determination

Reasoning

The court traced the regime from sections 21 and 22(1) of the repealed Registered Land Act into sections 16, 18 and 19 of the Land Registration Act 2012, concluding the 2011 order was made in that context and that any fresh determination must result in boundaries fixed under section 19 with the requisite note.

p. 3

Legal principles established

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  • The court is precluded from entertaining boundary disputes over registered land unless the boundaries have been determined under the statutory process (s.18(2) Land Registration Act, 2012, formerly s.21 Registered Land Act)
  • Where boundaries have not been fixed and noted in the register, the court or Registrar may receive evidence as to the boundaries and situation of a parcel
  • A court-ordered boundary determination requires investigation of the original delineation, not mere confirmation of the position on the ground

Court orders

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  1. 1.The report by the Land Registrar dated 23rd May 2014 and filed on 28th May 2014 is set aside
  2. 2.The matter is referred to the Chief Land Registrar, Ministry of Land Housing and Urban Development to appoint a Land Registrar other than J.M. Wambua who, with the Kajiado District Surveyor, is to proceed to the original parcels KAJIADO/KAPUTEI NORTH/20 and KAJIADO/KAPUTEI NORTH NOS. 917, 721 and 705, originally of EMBOLOI GROUP RANCH, to determine and establish the position of the uncertain or disputed boundary and to have the said boundaries fixed in terms of section 19 of the Land Registration Act 2012
  3. 3.The Land Registrar so appointed and the Kajiado District Surveyor to file their joint report in court within 90 days from the date of the ruling
  4. 4.Matter to be mentioned in court on 14th July 2015 to confirm compliance and for further directions and/or orders
  5. 5.Costs in the cause
Jurisdiction invoked
Sections 16, 18(2) and 19 of the Land Registration Act No. 3 of 2012 (and predecessor sections 21 and 22(1) of the Registered Land Act Cap 300) pursuant to the court order of 28th October 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Leonard Roipa Rorian Pasha v Elijah Tiende Ole Kula & 3 others [2015] KEELC 775 (KLR)", Case Analysis (2015). Not stated in the extract (HCCC re boundary of Kajiado/Kaputei North/20 and parcels 917, 721 and 705, originally of Emboloi Group Ranch). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/775/eng@2015-03-27

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