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ELCPartially AllowedKajiado ELC (not stated in judgment)· [2019] KEELC 899 (KLR)

Masagu Ole Koitalel Naumo v Moloi Ole Lekishon [2019] KEELC 899 (KLR)

Environment and Land Court
29 October 2019
COChristine Ochieng
4,446 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kajiado court evicted a landowner who encroached on 133 hectares of his neighbour's titled land, confirming that a registered title wins unless fraud is proved.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcel Kajiado/Olchoro Onyore/111, sued the Defendant, registered proprietor of the neighbouring parcel 112, seeking eviction and a permanent injunction for trespass. The Defendant denied encroachment, relied on a quashed Kajiado North Land Disputes Tribunal award and a Tribunal determination upheld by the Magistrate's Court, argued that the survey order in Kajiado SRMCC No. 159 of 2010 was made without jurisdiction, and raised res judicata. He later sought to claim adverse possession in submissions only. The court found that the Tribunal award had been quashed in Nairobi HC Misc Application No. 370 of 2013, that the Defendant's appeal (Machakos HC Civil Appeal No. 13 of 2011) was dismissed, and that the survey order of 28th January 2011 remained valid. PW1, the former District Surveyor, testified that measurements taken with GPS, beacons and the Registry Index Map established an encroachment of 133.34 hectares by the Defendant, who had even built a house and chased the surveyor away with a spear. Applying sections 24, 25 and 26 of the Land Registration Act, the court held the Plaintiff's title prima facie and indefeasible and that he had proved his case on a balance of probability. The adverse possession claim was rejected as unpleaded, on the principle that parties are bound by their pleadings. Judgment was entered for the Plaintiff with an eviction order effective after 90 days, a permanent injunction, and costs of the suit awarded to the Plaintiff.

Key legal issues

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01

Whether the Defendant encroached on the Plaintiff's land parcel Kajiado/Olchoro Onyore/111

Holding

The court found, on the surveyor's evidence, the Land Registrar's report and the measurements taken pursuant to a valid court order, that the Defendant encroached on approximately 133.34 hectares of the Plaintiff's land.

Reasoning

PW1, the retired District Surveyor, testified that pursuant to a court order in Kajiado PMCC No. 159 of 2010 he measured the parcels using GPS and beacons on the ground together with the Registry Index Map, establishing an encroachment of 133.34 hectares. The Land Registrar's report dated 19th March 2013 confirmed the encroachment. The Defendant's challenge failed because the Tribunal award he relied on had been quashed in Nairobi HC Misc Application No. 370 of 2013 and his appeal (Machakos HC Civil Appeal No. 13 of 2011) was dismissed, leaving the survey order valid.

p. 3
02

Whether the Plaintiff, as registered proprietor, is entitled to eviction and a permanent injunction

Holding

Yes. As registered proprietor of parcel 111 and the resultant subdivisions, the Plaintiff is entitled to the protection of the Land Registration Act; eviction after 90 days and a permanent injunction were granted.

Reasoning

Relying on sections 24, 25 and 26 of the Land Registration Act, the court held that the Plaintiff's certificate of title is prima facie evidence of indefeasible ownership, unchallenged by any proof of fraud or illegality. The surveyor confirmed beacons were in place and the extent of encroachment. The court associated itself with the decision in Willy Kipsongok Morogo v Albert K. Morogo on protection of registered proprietors and held both an eviction order and permanent injunction should issue.

p. 4
03

Whether the Defendant's adverse possession claim raised in submissions could stand

Holding

No. The claim was not pleaded and the court refused to entertain it, disregarding the authorities cited in support.

Reasoning

The Defendant first raised adverse possession in submissions, not in his Statement of Defence. Relying on IEBC v Stephen Mutinda Mule (citing Adetoun Oladeji (NIG) v Nigeria Breweries) and Raila Amolo Odinga & Another v IEBC & 2 Others, the court held parties are bound by their pleadings and evidence or arguments at variance with the pleadings go to no issue. Since adverse possession was never pleaded, the Defendant was estopped from raising it in submissions.

p. 4

Legal principles established

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  • A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegality of acquisition.
  • Parties are bound by their pleadings; evidence or claims not pleaded cannot be entertained and must be disregarded.
  • The Land Registration Act vests in the Land Registrar, in collaboration with the District Surveyor, the mandate to resolve boundary disputes.
  • Registration of a person as proprietor of land vests in that person absolute ownership of the land with all rights and privileges appurtenant thereto.

Court orders

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  1. 1.An order of eviction against the Defendant, his servants or agents, from land parcel Kajiado/Olchoro-Onyore/111 and the resultant subdivisions therefrom, as determined by the Kajiado District Land Surveyor, after 90 days from the date of the judgment
  2. 2.A permanent injunction restraining the Defendant, his servants or agents from trespassing, dealing or otherwise interfering with the Plaintiff's possession and use of land parcel Kajiado/Olchoro Onyore/111 and the resultant subdivisions therefrom as constituted on the ground and as determined by the Kajiado District Land Surveyor
  3. 3.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration Actsection 25
  • Land Registration Actsection 26 (and 26(1))
  • Land Registration Actsection 103(1)(a) & (b)
  • Land Registration Actsection 24(a)

Cases cited (12)

  • Mbirav Gachuhi
    2002 1EA Page 38
  • Shadrack Kuria Kimani V Stephen Gitau Nganga & Another
    (2017) eKLR
  • Willy Kipsongok Morogo V Albert K. Morogo
    (2017) eKLR
  • Makula International Limited V His Eminence Cardinal Nsubuga and Another
    (1982) HCB 11
  • Wambugu V Njuguna
    (1983) KLR 173
  • Mtana Lewa V Kahindi Ngala Mwangandi
    (2005) eKLR
  • Wabala V Okumu
    (1997) LLR 609
  • Bayete Co. Ltd V Kosgey
    (1998) LLR 813
  • Gitway Investment Limited V Tajmal Limited & 3 Others
    HCCC No. 1114 of 2002
  • Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC
    SC 91/2002
  • Raila Amolo Odinga & Another vs. IEBC & 2 others
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction over a land dispute (Environment and Land Court 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, "Masagu Ole Koitalel Naumo v Moloi Ole Lekishon [2019] KEELC 899 (KLR)", Case Analysis (2019). Kajiado ELC (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/899/eng@2019-10-29

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