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ELCPartially AllowedNot stated in the judgment (petition application dated 19.2.2018)· [2018] KEELC 2300 (KLR)

Remus Cyrprian Banu Saimon Muturi v Stephen Nturibi Itirikia [2018] KEELC 2300 (KLR)

Environment and Land Court
25 July 2018
LMLucy N. Mbugua
797 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) on the petitioner's notice of application dated 19.2.2018 in a land dispute with the respondent. The applicant sought leave to amend his petition to plead the suit land (Tigania West/Akithi III/1388) as registered land, since a title deed had been issued to him on 25.4.2017, and sought a direction for a locus in quo visit by the Deputy Registrar with a government surveyor. The respondent opposed, alleging the maps produced were forgeries, that an earlier scene visit had failed because the petitioner protested, and that the court lacked jurisdiction under section 18 of the Land Registration Act, the dispute being a boundary dispute. The court held that registration of the land had changed the applicable legal regime to the Land Registration Act, and that the applicant, not being in control of the registration process, could not be faulted for seeking amendment at that stage; leave to amend was granted. On jurisdiction, the court distinguished Patrick Musimba v National Land Commission & 3 others, reasoning that the respondent's own averments (denying contiguity, alleging common title problems in Tigania and Nyambene, and alleging forged maps) showed the dispute was not purely a boundary one, so the court could entertain it, with essential input from the land registrar and surveyor. The court allowed the amendment (filed and served within 7 days, with the respondent at liberty to respond within 7 days of service), directed the land registrar with the surveyor (Meru North) to visit the scene and file a joint report, ordered each party to bear their own costs of the application, with the petitioner meeting the costs of the scene visit.

Key legal issues

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01

Amendment of the petition to plead registered land

Holding

Amendment allowed because the suit land is now registered and the legal regime has changed

Reasoning

The court noted the annexed title deed issued on 25.4.2017 in the applicant's name, showing the land had moved from adjudication to registration. Since the applicant was not in control of that process, he could not be faulted for seeking amendment at this stage, and no prejudice was shown. The court allowed leave to amend.

p. 2
02

Jurisdiction under section 18 of the Land Registration Act

Holding

The court found jurisdiction because the dispute transcends a pure boundary dispute

Reasoning

The respondent challenged jurisdiction under section 18 of the Land Registration Act, relying on Patrick Musimba v National Land Commission & 3 others. The court distinguished that case, noting the respondent's own averments disputing contiguity, alleging common problems with titles in Tigania and Nyambene, and claiming forged maps, showing the dispute was not purely a boundary one. Expert input from the land registrar was therefore essential.

p. 2
03

Scene visit and expert report

Holding

A joint scene visit and report by the land registrar and surveyor (Meru North) was directed

Reasoning

Given that the suit land is now registered, the court considered it essential to have input from the land registrar and other expert officers to ascertain the position on the ground, and directed a joint report regarding the dispute.

p. 2

Legal principles established

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  • Where the suit land has become registered land, the applicable legal regime changes to the Land Registration Act, and a party not in control of the registration process cannot be faulted for seeking amendment at that stage
  • A boundary dispute is not purely a boundary matter under section 18 of the Land Registration Act where the parties raise broader disputes such as forgery of maps and contestation of titles

Court orders

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  1. 1.Applicant granted leave to amend the petition and to file and serve the same within 7 days from delivery of the ruling
  2. 2.Respondent at liberty to file and serve any response within 7 days from the date of service of the amended petition
  3. 3.Land registrar in conjunction with the surveyor (Meru North) directed to visit the scene and file a joint report regarding the dispute on the suit land
  4. 4.Each party to bear their own costs regarding the application; petitioner to meet the costs of the scene visit

Authorities

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Legislation

  • Land Registration Actsection 18

Cases cited (1)

  • Patrick Musimba versus National Land Commission & 3 others
    Constitutional petition no. 613/14
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes concerning registered land; respondent challenged it under section 18 of the Land Registration Act

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, "Remus Cyrprian Banu Saimon Muturi v Stephen Nturibi Itirikia [2018] KEELC 2300 (KLR)", Case Analysis (2018). Not stated in the judgment (petition application dated 19.2.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2300/eng@2018-07-25

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