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ELCPartially AllowedELC Case No. 143 of 2008· [2018] KEELC 930 (KLR)

Atanasio M’Ekandi v Antony Kaunga [2018] KEELC 930 (KLR)

Environment and Land Court
8 November 2018
1,544 words in judgment
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The bottom line

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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

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Executive summary

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This Environment and Land Court at Meru ruling/judgment disposed of a decade-old boundary dispute between adjacent plot holders over parcels Akithi/Akithi section 2/1909 and 1910. The defendant applied on 23.7.2018 for review of the court's orders of 19.7.2018 (that judgment be written on the reports of the Land Registrar and Surveyor) and to arrest delivery of judgment so the case could be heard by viva voce evidence, contending the officers ignored the registered mutation forms and that he had no opportunity to tender evidence. The plaintiff opposed, noting the orders flowed from consents recorded by the parties. The court, Mbugua J, traced a history of consent orders (25.2.2014, 19.7.2017, 6.11.2017) committing the boundary determination to the Land Registrar and Surveyor, and noted the defendant's repeated attempts to renege on consents without alleging fraud or undue influence, and that counsel held his brief on 19.7.2018. Relying on section 18(2) of the Land Registration Act and the authorities of Unique Sunshine Environment Services v Varomaro Ltd and Andrew Marigwa v Josephat Ondieki Kebati, the court held it could not entertain the boundary dispute, which the experts were better placed to determine. The two reports were found comprehensive; the scene proceedings included party testimony and cross-examination, and the Registrar treated the boundary as solved. The court declined to arrest judgment, entered judgment in terms of the Land Registrar's report of 5.3.2018, ordered the defendant to vacate the encroaching portion, marked the suit finalized, dismissed the application and awarded the plaintiff costs of both the application and the suit.

Key legal issues

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01

Whether a party can resile from consent orders recorded in court without alleging fraud or undue influence

Holding

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

Reasoning

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.

p. 1
02

Whether the court had jurisdiction to entertain the boundary dispute and whether oral evidence was required

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 23.7.2018 is dismissed
  2. 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. 3.The defendant to forthwith vacate the portion of his plot which has encroached onto the plaintiff's plot
  4. 4.The suit is marked as finalized
  5. 5.Defendant to pay the costs of the application of 23.7.2018 as well as the costs of the suit

Authorities

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Legislation

  • Land Registration Actsections 18, 18(2), 19
  • Registered Land Act (repealed)section 21(4)
  • Land Registration Act No. 3 of 2012repealing provision

Cases cited (2)

  • Unique Sunshine Environment Services vs. Varomaro ltd
    Mombasa H.C.C No. 188/2011
  • Andrew Marigwa versus Josephat Ondieki Kebati
    ELC No. 1163/2016 Kisii
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act, section 18 (boundary disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.