James Charana Otore v Jeremiah Masese [2017] KEELC 1616 (KLR)
The bottom line
#Kenyan courts cannot decide land boundary disputes until the Land Registrar fixes the boundary first — but a registrar's report can then be adopted as the court's judgment.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over boundary disputes of registered land
The court held the dispute was a boundary dispute over which it lacked jurisdiction under section 18(2) of the Land Registration Act until the boundary was determined by the land registrar
The defendant denied encroachment and claimed his parcel had clearly delineated boundaries. The court characterized the dispute as one of boundary positioning, a matter the Land Registration Act reserves to the land registrar. Invoking the overriding objective under sections 1A and 1B of the Civil Procedure Act and sections 3(1) and (2) of the Environment and Land Court Act, the court referred the dispute to the registrar and surveyor rather than dismissing the suit, then considered their reports.
Effect of the land registrar's and surveyor's reports
The reports established and fixed the boundary between parcels 149 and 527; the report was approved and adopted as the judgment of the court
The registrar found parcel 527 was never part of the quarry that constituted parcel 149 and that the excavation features visible on the ground mark the extent of parcel 149. The surveyor measured the boundaries and produced a sketch plan showing an area WXYZ of approximately 0.58Ha (1.42 acres) as part of parcel 149. The court was satisfied the two officers had established and fixed the boundary and adopted the report as judgment, ordering the defendant to vacate the WXYZ/XYWZ portion if occupied.
Legal principles established
#- A court shall not entertain any action or proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with section 18 of the Land Registration Act
- Where a suit discloses a boundary dispute, the court may direct the land registrar and surveyor to establish and fix the boundary, and may thereafter adopt their report as the judgment of the court
Court orders
#- 1.The court approved and adopted the report by the land registrar and the surveyor as judgment of the court
- 2.The parties to abide with the boundaries as fixed between parcels 149 and 527 by the land registrar and the surveyor
- 3.If the defendant is in occupation of the portion of parcel 149 marked 'XYWZ' measuring 0.58Ha or 1.42 acres approximately, the defendant is to vacate within 30 days failing which an eviction order will issue on application by the plaintiff
- 4.The plaintiff has liberty to have the boundary between parcel Nyansiongo Settlement Scheme/11 and 149 established and fixed by the land registrar upon notice to the proprietor of parcel 11
- 5.No order for costs; each party to bear his own costs of the suit
- Jurisdiction invoked
- Environment and Land Court Act, 2011 read with the Land Registration Act, 2012 (section 18 and 19) and Civil Procedure Act (sections 1A and 1B)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Charana Otore v Jeremiah Masese [2017] KEELC 1616 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1616/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.