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ELCPartially AllowedKisii ELC (suit) - plaint dated 22nd March 2016· [2017] KEELC 1028 (KLR)

Ezekiel Mairura v Johnson Anyega Oigara & another [2017] KEELC 1028 (KLR)

Environment and Land Court
24 November 2017
JMJ. M. MUTUNGI
1,354 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts cannot decide land boundary disputes—take them to the Land Registrar, whose official survey records will then be enforced as final.

What this practically means

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Executive summary

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The plaintiff sued alleging that the defendants had blocked the surveyed road of access to his parcel LR No. Nyaribari Chache/B/B/Boburia/8525, including by constructing a pit latrine on it, and sought an order directing that the road of access be opened. The defendants were served but neither entered appearance nor filed a defence. By a Notice of Motion dated 26th September 2016, the plaintiff sought an order directing the County Land Registrar and County Surveyor, Kisii, to visit the parcel, establish the boundaries and open the road of access. The court allowed the application, directed the plaintiff to bear the costs of the exercise, and ordered security from the OCS Kisii Central. The joint report of 20th April 2017 confirmed a 4m access road created on subdivision of the 1st defendant's original parcel 7782 to serve parcel 8525, part of which was obstructed by the defendants' pit latrine. The 1st defendant objected, claiming an alternative access and alleging the officers were influenced by the plaintiff. The court found the report consistent with the Registry Index Map and the registered mutation form, held that under Section 18(2) of the Land Registration Act, 2012 it lacked jurisdiction over boundary disputes, and found no basis to fault the report. It adopted the report as its judgment, directed its implementation, and ordered each party to bear their own costs.

Key legal issues

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01

Jurisdiction over boundary disputes of registered land

Holding

The court lacks capacity to define or establish parcel boundaries; that mandate lies with the Land Registrar and County Surveyor under Section 18(2) of the Land Registration Act, 2012

Reasoning

The plaintiff's complaint involved identification of a surveyed road of access, a boundary matter. The court recognized its incapacity under Section 18(2) and properly referred the issue to the Land Registrar and County Surveyor, the officers mandated by law to establish and fix boundaries of registered land, and thereafter adopted their report.

p. 3
02

Evidential weight of the registrar/surveyor report and registry records

Holding

The report, supported by the RIM and the registered mutation form, correctly established that parcel 8525 is served by two surveyed roads of access, one partly obstructed by the defendants' pit latrine

Reasoning

The RIM, certified as a true copy, shows parcel 8525 abutting two roads of access; the mutation form of 25th July 2009 registered on 7th September 2009 shows an access road provided on subdivision of parcel 7782. The 1st defendant's claims of doctoring and influence were unsupported; any dispute over the survey should be taken up with the Land Registrar and Survey Department.

p. 3

Legal principles established

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  • Courts lack jurisdiction under Section 18(2) of the Land Registration Act, 2012 to entertain boundary disputes for registered land; such determination is for the Land Registrar and Survey Department
  • Once a subdivision is carried out and documented, the lands office records constitute prima facie conclusive evidence of the state of the property

Court orders

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  1. 1.Adoption of the Land Registrar and County Surveyor's report as the judgment of the court, finally disposing of the suit
  2. 2.Direction that the report be implemented
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 18(2)
Jurisdiction invoked
Environment and Land Court; application of Section 18(2) of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ezekiel Mairura v Johnson Anyega Oigara & another [2017] KEELC 1028 (KLR)", Case Analysis (2017). Kisii ELC (suit) - plaint dated 22nd March 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1028/eng@2017-11-24

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