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ELCPartially Allowed· [2016] KEELC 268 (KLR)

Kennedy Makwaye Gekonge v Zakkiet Mochoge [2016] KEELC 268 (KLR)

Environment and Land Court
22 July 2016
JMJ. M. Mutungi
1,404 words in judgment
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The bottom line

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In a Kenyan land boundary dispute, the court confirmed the land registrar—not the judge—must fix boundaries, and set aside a report that ignored one owner's parcel.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (J. M. Mutungi J, 22nd July 2016) determined a Notice of Motion dated 31st March 2016 in which the defendant sought the setting aside or expunging of a report dated 12th February 2015 prepared by the land registrar, Kisii Central. The underlying suit between the plaintiff (owner of parcel West Kitutu/Bogeka/1544) and the defendant (owner of parcel West Kitutu/Bogeka/2306) is a boundary dispute, which by consent was referred to the land registrar for fixing of the boundaries before further proceedings. The registrar filed a report with a sketch plan covering only parcel 1544, and when summoned to explain, the county surveyor confirmed that the defendant had encroached onto the plaintiff's land. The defendant alleged bias, improper reliance on a mutation form of undisclosed origin, and denial of a hearing. The court framed a single issue: whether the defendant had established a basis for setting aside the report. Holding that the reference required both parcels' boundaries to be fixed, the court found the report deficient and inconclusive since it fixed only the plaintiff's parcel and left the defendant's parcel unmeasured. Relying on Sections 18 and 19(2) of the Land Registration Act, 2012, the court held that boundary fixing is the registrar's statutory mandate and that affected parties must be heard before a boundary is defined by survey; nothing showed the parties were heard. The report was set aside, and the land registrar and county surveyor were directed to revisit both parcels, fix the boundaries, and file a fresh report with a sketch plan or RIM abstract within 90 days, with mention set for 14th November 2016. Costs of the application were ordered to be in the cause.

Key legal issues

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Whether the land registrar's boundary report should be set aside

Holding

The report was deficient and inconclusive because it fixed only the plaintiff's parcel, did not ascertain the defendant's parcel boundaries, and showed no evidence that the parties were heard

Reasoning

The reference order required both parcels' boundaries to be fixed. The report addressed only parcel 1544 using the mutation form, with a sketch plan relating solely to that parcel, leaving the court without measurements for parcel 2306. Section 18 of the Land Registration Act, 2012 mandates the land registrar to fix boundaries and ousts the court's jurisdiction until that is done. Section 19(2) requires affected parties to be heard before a boundary is defined by survey; nothing in the report showed the registrar took or heard the parties. The report was therefore set aside and a fresh exercise directed.

p. 3

Legal principles established

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  • It is the land registrar who is mandated to establish and fix boundaries, and the court has no jurisdiction to entertain boundary disputes unless the dispute has been determined under Section 18(1) of the Land Registration Act
  • The land registrar must give all affected parties an opportunity to be heard before defining a boundary by survey

Court orders

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  1. 1.The report filed by the land registrar is set aside as deficient and inconclusive
  2. 2.The land registrar, Kisii County and the County surveyor to revisit land parcels West Kitutu/Bogeka/1544 and 2306 and establish and fix the boundaries of the two parcels of land
  3. 3.The land registrar and County surveyor to file their report in court incorporating a sketch plan and/or an abstract of the registry index map (RIM) covering the two parcels of land within 90 days of service of the ruling/order upon them
  4. 4.Mention on 14th November 2016 to confirm compliance and for further directions and/or orders
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Land Registration ActSection 18(1)
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19(2)
Jurisdiction invoked
Sections 18 and 19 of the Land Registration Act, 2012 (court has no jurisdiction over boundary disputes unless determined by the land registrar under Section 18(1))

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, "Kennedy Makwaye Gekonge v Zakkiet Mochoge [2016] KEELC 268 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/268/eng@2016-07-22

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