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ELCDismissedCase No 638 of 2016· [2019] KEELC 1131 (KLR)

Nyakundi Onchiri v Nyamwange Nyang’au & 2 others [2019] KEELC 1131 (KLR)

Environment and Land Court
23 October 2019
2,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that boundary disputes between registered landowners must first go to the Land Registrar, and ignored court documents carry serious consequences.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 1st December 2016 claiming the defendants, owners of the adjacent parcel Central Kitutu/Mwogeto/1239, had encroached onto his parcel Central Kitutu/Mwogeto/1230, seeking eviction and a permanent injunction. The defendants were served on 19th December 2016 but did not enter appearance or file a defence. Finding the matter a boundary dispute, the court referred it to the Land Registrar and County Surveyor under Section 18 of the Land Registration Act 2012 to establish and fix the common boundary. Their reports, filed on 5th June 2018 (and a further site visit on 6th September 2019), found the defendants had encroached approximately 12 metres by 65 metres (0.1Ha), and on 9th October 2018 the court adopted the report as judgment and ordered the defendants to vacate the encroached portion within 30 days. Through successive advocates, the defendants applied to set aside the judgment, alleging non-service and challenging the integrity of the reports. The court rejected the non-service claim, noting the affidavit of service, receipt of the decree, and the defendants' participation in the site visit. It held the reports credible and unchallenged, and reiterated that a boundary dispute falls outside the court's jurisdiction under Section 18(2). The court upheld the judgment and awarded the costs of the application to the plaintiff.

Key legal issues

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01

Jurisdiction over boundary disputes

Holding

The suit having been identified as a boundary dispute, the court lacked jurisdiction to entertain it; the proper forum was the land registrar under Section 18 of the Land Registration Act 2012.

Reasoning

The court had earlier made an order of reference to the Land Registrar and County Surveyor under Section 18. It reasoned that the registrar and surveyor are the custodians of land and survey records with the technical ability to fix boundaries, whereas the court lacks that technical capacity. The plaintiff had even before filing suit lodged a boundary dispute with the land registrar, fortifying the finding.

p. 2
02

Service of summons and setting aside judgment

Holding

The defendants were duly served with summons and the decree; the claim of non-service was rejected and the judgment adopting the registrar's report was not set aside.

Reasoning

The affidavit of service sworn by process server Isaiah Miruka showed service on 19th December 2016. The same process server served the draft decree on 10th October 2018, and the defendants admitted receiving the decree. The defendants' participation in the site visit on 6th September 2019, recorded in the registrar's list of participants, demonstrated their awareness of the proceedings.

p. 3
03

Credibility and sufficiency of the registrar's and surveyor's reports

Holding

The reports were credible, properly conducted in the presence of both parties, and remained unchallenged; they established encroachment of approximately 12 metres by 65 metres (0.1Ha).

Reasoning

Both officers affirmed the site visit of 6th September 2019 with both parties represented; the 1st and 3rd defendants were recorded as present. The surveyor used the correct RIM Sheet No. 6 and attached a sketch. The defendants' reference to an alleged earlier survey report favouring them was unsupported by any annexure, so the court held no such report existed.

p. 3

Legal principles established

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  • Once a dispute is established to be a boundary dispute over registered land, the court lacks jurisdiction to entertain it unless the boundaries have first been determined under Section 18 of the Land Registration Act
  • The mandate to establish and fix the boundaries of registered land lies with the land registrar acting with the surveyor, as custodians of land and survey records
  • Section 18(2) of the Land Registration Act 2012 bars the court from entertaining boundary disputes not determined under that section

Court orders

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  1. 1.The court's ruling adopting the land registrar's report as judgment of the court is upheld
  2. 2.The court declines to set aside the judgment entered on 9th October 2018 and the consequential orders
  3. 3.The defendants' Notice of Motion dated 5th April 2019 (and the companion application dated 25th February 2019) is dismissed
  4. 4.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 18
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19
Jurisdiction invoked
Environment and Land Court jurisdiction; dispute governed by Section 18 of the Land Registration Act 2012 (original jurisdiction over land; boundary determination reserved to the Land Registrar)

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, "Nyakundi Onchiri v Nyamwange Nyang’au & 2 others [2019] KEELC 1131 (KLR)", Case Analysis (2019). Case No 638 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1131/eng@2019-10-23

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