Zebedeo Kinara Moracha v Kisii Land Registrar & 2 others [2016] KEELC 334 (KLR)
The bottom line
#Kenyan courts won't hear land boundary disputes — you must first ask the Land Registrar to fix the boundary under the Land Registration Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the proposed interested parties should be joined as interested parties
Joinder was refused; the application was dismissed with costs to the applicant.
The court found that the applicant's motion had sought only determination of the boundary between parcels 3147 and 3629, and that the court order had been implemented by the land registrar. The report of 6th August 2015 showed both proposed interested parties were present during the exercise. The court found no basis for joinder or for review of the order, noting the affected proprietors of subdivided parcels could invoke Sections 18 and 19 of the Land Registration Act directly.
Whether the court order of 30th July 2014 should be reviewed and stayed
No basis for review was found; the boundaries of parcel 3147 were properly fixed by the land registrar.
The court observed that parcel 3629 had been closed on 6th June 2014 following subdivision into parcels 3705-3710, so it did not exist on 6th August 2015 when the registrar's report was made. It nevertheless held that the boundaries of parcel 3147 were appropriately marked, and that the proprietors of the subdivided parcels were at liberty to have their boundaries fixed under Sections 18 and 19 of the Land Registration Act.
Whether the court has jurisdiction over boundary disputes under the Land Registration Act, 2012
The court has no jurisdiction to entertain boundary disputes; that mandate is vested in the land registrar.
Section 18(2) of the Land Registration Act, 2012 divests the court of jurisdiction over boundary disputes unless the boundaries have been determined in accordance with Section 18. Section 19 requires the registrar to give notice to affected persons and hear them before fixing boundaries. The court observed a growing and unnecessary tendency to file court applications for boundary determination instead of invoking the statutory process directly.
Legal principles established
#- Under Section 18(2) of the Land Registration Act, 2012, the court has no jurisdiction to entertain boundary disputes unless the boundaries have been determined in accordance with that section; the mandate to establish and fix boundaries lies with the land registrar.
- Parties need not file suits or applications in court to have the land registrar fix boundaries; they should invoke the Land Registration Act directly, under which the registrar must act on an application by an interested person.
Court orders
#- 1.The proposed interested parties' application dated 25th September 2015 is dismissed
- 2.Costs of the application are awarded to the applicant
- Jurisdiction invoked
- Sections 3, 3A and 63(e) of the Civil Procedure Act (applicant's original motion); the ruling decides an application under the court's incidental powers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zebedeo Kinara Moracha v Kisii Land Registrar & 2 others [2016] KEELC 334 (KLR)", Case Analysis (2016). Misc. Application No 69 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/334/eng@2016-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.