Kangithi Posta & another v David Ndwiga Njagi & 2 others [2018] KEELC 2389 (KLR)
The bottom line
#An Embu court dismissed a landowner's attempt to overturn a Land Registrar's boundary report, confirming such reports stand unless proven unprofessional or based on hidden facts.
What this practically means
#Executive summary
#Key legal issues
#Whether the Land Registrar's report of 6th April 2017 should be set aside as unprofessionally prepared
The report was professionally prepared; both the Registrar and Surveyor were aware that parcel No. 221 had been sub-divided and even identified discrepancies in the mutations, and the report was not prepared without reference to the survey records
The court reviewed the Registrar's report and the Surveyor's notes, both of which expressly recorded that parcel No. 221 had been sub-divided into three portions and that the mutations from the first and second sub-divisions differed. The interested party had participated in the site visit, as the report showed he was present. The discrepancy the Surveyor found suggested the sub-divisions were suspect, which may explain why the interested party wanted boundaries based on those mutations. The report therefore reflected the records and the ground position.
Whether the absence of sketches or drawings in the Registrar's report invalidated it
No — the court had not required sketches; the assigned task was to determine the boundaries and place beacons on the ground, which was done
The interested party faulted the report for lacking sketches or similar drawings. The court held that the validity of the report was not affected since the original orders only required determination of boundaries and placement of beacons. The Registrar and Surveyor had, on a second visit, cemented permanent beacons and the measurements did not differ from the first visit, so the assignment was complete.
Whether the interested party was excluded from the boundary determination
The Registrar's report showed that the interested party was present during the site visit, so he was involved in the determination of boundaries
One ground of the application was that the interested party was not involved in the boundary determination. The report filed by the Registrar indicated that among the persons present during the site visit were the 1st Respondent and the interested party. On this evidence the court found the claim of exclusion unsubstantiated.
Legal principles established
#- A boundary determination report by the Land Registrar is not invalidated merely because it is not accompanied by sketch plans where the court did not require such sketches and the assigned task was to determine boundaries and place beacons on the ground
- An interested party seeking to set aside a Registrar's boundary report must demonstrate that it was unprofessionally done or based on non-disclosure of material facts
Court orders
#- 1.The interested party's amended notice of motion amended on 28th February 2018 is dismissed
- 2.Costs to the two Applicants assessed at Kshs 20,000/- for both, to be paid within 30 days
- 3.In default of payment of costs, the Applicants shall be at liberty to execute
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over land parcels Evurore/Kathera/222, 244, 221 and the resultant sub-divisions (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenta v Njapit & 5 others[2023] KEELC 17646 (KLR)25 May 2023
Cite this brief
#Cite this brief
Caselaw, "Kangithi Posta & another v David Ndwiga Njagi & 2 others [2018] KEELC 2389 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2389/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.