Atanasio M’Ekandi v Antony Kaunga [2018] KEELC 930 (KLR)
The bottom line
#A Meru court ruled that Kenyan land boundary disputes must be settled by the Land Registrar and Surveyor, and consent orders bind parties who try to back out.
What this practically means
#Executive summary
#Key legal issues
#Whether a party can resile from consent orders recorded in court without alleging fraud or undue influence
No; the defendant was represented throughout, had repeatedly sought to renege on consent orders, and no fraud or untoward influence was alleged, so the consents bound him
The court traced a history of consents recorded on 25.2.2014, 19.7.2017 and 6.11.2017 agreeing to determination of the boundary by the Land Registrar and Surveyor. An earlier application to review a consent was dismissed on 18.2.2016 by Judge Njoroge, who noted no fraud or untoward influence was alleged. On 19.7.2018 the defendant's counsel, holding brief, agreed that judgment be written on the two reports. The defendant could not claim his advocate was absent.
Whether the court had jurisdiction to entertain the boundary dispute and whether oral evidence was required
The court lacked jurisdiction over the boundary dispute under section 18(2) of the Land Registration Act; the matter had been properly determined by the Land Registrar and Surveyor and the reports disposed of the case
Section 18(2) of the Land Registration Act bars the court from entertaining boundary disputes unless boundaries have been determined under that section. The court relied on Unique Sunshine Environment Services v Varomaro Ltd and Andrew Marigwa v Josephat Ondieki Kebati, where reports of the Land Registrar and Surveyor were endorsed as the judgment of the court. The reports here were comprehensive, parties testified and cross-examined at the scene, and the Registrar treated the boundary as solved and finalized.
Legal principles established
#- The 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
- Surveyors and land registrars are the experts better placed to resolve boundary disputes
Court orders
#- 1.The application dated 23.7.2018 is dismissed
- 2.Judgment entered in terms of the Land Registrar's report filed in court on 5/3/2018, whereby the boundaries marked on the ground are to be taken as the correct boundaries
- 3.The defendant to forthwith vacate the portion of his plot which has encroached onto the plaintiff's plot
- 4.The suit is marked as finalized
- 5.Defendant to pay the costs of the application of 23.7.2018 as well as the costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Land Registration Act, section 18 (boundary disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atanasio M’Ekandi v Antony Kaunga [2018] KEELC 930 (KLR)", Case Analysis (2018). ELC Case No. 143 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/930/eng@2018-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.