Harrison Kanyoni Mwai v Margaret Njoki Gichana [2018] KEELC 1554 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled boundary disputes must first go to the Land Registrar and surveyor before courts can fully decide them.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over boundary disputes under section 18(2) of the Land Registration Act
The court held the dispute is a boundary dispute which must first be determined by the land registrar and surveyor; the court directed them to establish the boundary rather than determine it itself
The court found the dispute predated the plaintiff's purchase of the land and that the defendant admitted this. Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes unless the boundaries have been determined under that section. Relying on Andrew Marigwa v Josphat Ondieki Kebati, the court held the land registrar and county surveyor have the technical capacity to fix boundaries and referred the delimitation to them while granting ancillary relief.
Defendant's adverse possession claim
The defendant's adverse possession claim failed for want of particulars, as the land was long marshy and unutilized
The defendant in her statement dated 1/8/2013 claimed the disputed portion through adverse possession but did not give further and better particulars. The court noted the land was marshy for a long time and therefore not being utilized, undermining any claim of open, exclusive possession capable of defeating the plaintiff's title.
Reliability of the defendant's title records
The defendant's ownership records were found to be messy and not discernible, including an unexplained change of parcel number to 1787
The green card showed the land was first registered in 1977 at 5.87 hectares, was subdivided with resultant parcels not clearly indicated, restrictions were registered yet the land continued to be alienated, and the title closed on 30 May 2008 upon new numbers 1671 and 1678. The defendant failed to clarify how the suit land came to be numbered 1787, weakening her claim to the disputed portion.
Legal principles established
#- Courts lack jurisdiction to entertain boundary disputes over registered land unless the boundaries have first been determined under section 18 of the Land Registration Act; the land registrar and surveyor have the technical expertise to resolve such disputes.
Court orders
#- 1.An order issued to the Kiambu County Land Registrar and Kiambu County land surveyor to visit the suit land premises and establish the correct boundary between parcel no KIAMBU/LARI/264 and KIAMBU/LARI/121 and to ascertain that land parcel no KIAMBU/LARI/264 is 5 acres on the ground
- 2.Parties at liberty to be accompanied by their own surveyors during the exercise
- 3.The exercise to be undertaken with or without the presence of the parties as long as the land registrar notifies the parties when it will be undertaken
- 4.Plaintiff to meet the scene visit expenses but to recover them as part of costs of the suit
- 5.A permanent injunction restraining the defendant from entering, remaining in, developing, annexing, excising or occupying any portion of land parcel no KIAMBU/LARI/264
- 6.Any title deed issued in respect of land within parcel no. Kiambu/Lari/264, be it no Kiambu/Lari/1678, 1787, or any other number, to be cancelled forthwith and the land to revert back to parcel no. 264
- 7.The relevant registry index map to be amended accordingly once the boundary is marked out
- 8.Defendant condemned to pay costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act; Land Registration Act, section 18(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harrison Kanyoni Mwai v Margaret Njoki Gichana [2018] KEELC 1554 (KLR)", Case Analysis (2018). ELC Case No 715 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1554/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.