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ELCDismissedOriginating Summons (filed 19th February 2014) - INOI/KERUGOYA/194· [2017] KEELC 1176 (KLR)

Registered Trustee Catholic Diocese of Muranga v Micere Njau & 3 others [2017] KEELC 1176 (KLR)

Environment and Land Court
6 October 2017
BOB.N. Olao
1,212 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an attempt to throw out a Land Registrar's report, confirming such reports merely record facts and don't decide land disputes.

What this practically means

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Executive summary

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The plaintiff, St Michael Girls Boarding School Kerugoya, filed an Originating Summons on 19th February 2014 claiming to have acquired land parcel No. INOI/KERUGOYA/194 (sub-divided into INOI/KERUGOYA/3069, 3070, 3071 and 3072) by adverse possession, and seeking registration as sole proprietor with the defendants holding the land in trust. By consent recorded on 14th March 2016, the Land Registrar and Surveyor Kirinyaga were directed to visit the suit premises and report on the acreage of the portion occupied by the plaintiff. The report, filed on 16th September 2016, found the parcel measures 2.6 Hectares and is fully occupied by the plaintiff, with no visible boundary marks to support sub-division. The defendants filed a Notice of Motion on 20th December 2016 citing Section 3A of the Civil Procedure Act seeking to set aside and expunge the report, alleging professional misconduct and bias by the Land Registrar, failure to hear them as required by Section 19(2) of the Land Registration Act, and refusal to allow their private surveyor to participate. The plaintiff opposed, deponing through Sister Consolata Wangari Gakuru that the visit was conducted calmly, was a true reflection of events, and that no request for a private surveyor was made. Justice B.N. Olao dismissed the application, holding that the consent order did not call for a boundary determination under Section 19(2), that no evidence of misconduct or bias existed, that no request for a private surveyor was proved, and that the consent order made no provision for private surveyors. The court clarified that the report is interlocutory only, confirming possession and acreage, leaving the substantive claims of adverse possession and trust for trial. The application was dismissed with costs to the plaintiff, and the matter was directed to be listed for hearing.

Key legal issues

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01

Whether the Land Registrar's report should be expunged for alleged misconduct/bias

Holding

The application fails; there is no evidence of misconduct or bias

Reasoning

The court defined misconduct using Black's Law Dictionary ('A dereliction of duty, unlawful or improper behavior') and found no evidence of it. The report names all persons present at the site visit, and the plaintiff's representative deponed that proceedings were conducted calmly and were a true reflection of what transpired. No evidence showed a request for a private surveyor was made and declined, and the consent order did not provide for private surveyors in any event.

p. 2
02

Whether the Land Registrar was obliged to conduct a hearing at the site under Section 19(2) of the Land Registration Act

Holding

No - the consent order only required confirmation of acreage and occupation, not a boundary determination

Reasoning

The court held that Section 19(2) of the Land Registration Act applies to boundary disputes, but the consent order only directed the Land Registrar to confirm the acreage and the structures/occupation on the disputed portion. His duty was simply to confirm the acreage and what is on it, which the report did.

p. 2
03

Whether the report finally determines the dispute

Holding

No - the report is only interlocutory; the substantive claims of adverse possession and trust remain to be determined at hearing

Reasoning

The court disabused the defendants of any fear that the report finally determined the dispute. The plaintiff's claim is based on adverse possession and trust, which are issues to be determined by the Court on evidence to be adduced at the hearing. The defendants were told not to jump the gun.

p. 3

Legal principles established

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  • A court-ordered Land Registrar's report obtained under a consent order to confirm acreage and occupation does not amount to a boundary dispute determination under Section 19(2) of the Land Registration Act, and does not require a hearing at the site
  • Such a report is interlocutory only - it merely confirms who is in possession and occupation and its acreage, and does not finally determine the substantive dispute

Court orders

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  1. 1.The defendants' Notice of Motion dated 20th December 2016 seeking to set aside and expunge the Land Registrar's report is dismissed with costs to the plaintiff
  2. 2.The Land Registrar's report dated 14th September 2016 remains on the record
  3. 3.Parties to list the case for hearing as pre-trial has been finalized

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Land Registration ActSection 19(2)
Jurisdiction invoked
Section 3A of the Civil Procedure Act and all enabling provisions (inherent jurisdiction), invoked in the defendants' Notice of Motion

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Registered Trustee Catholic Diocese of Muranga v Micere Njau & 3 others [2017] KEELC 1176 (KLR)", Case Analysis (2017). Originating Summons (filed 19th February 2014) - INOI/KERUGOYA/194. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1176/eng@2017-10-06

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