Ndovu Builders & General Contractors Ltd v Attorney General & 6 others [2019] KEELC 1409 (KLR)
The bottom line
#A Kenyan landowner won after the court cancelled survey changes made without the consent of affected registered owners.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 2010 survey amendments and mutation
The amendments were unprocedural and irregular and cannot be used to relocate the Plaintiff's parcel from its original site
The court found the purported mutation of 29th July 2010 was neither signed by the Surveyor nor registered, and the Defendants called no Surveyor to authenticate it. It also showed sub-divisions of parcel 2600 creating parcels already created in 1990 with titles issued, which was illogical. The District Surveyor acted unilaterally without involving the Plaintiff.
Location of parcel 2601 on the ground
The true position of the plots is as depicted in the 1990 mutation form, which the parties' predecessors agreed upon
Title Deeds were issued in respect of the 21st May 1990 mutation, meaning the position of the plots was agreed by the proprietor. The 1990 mutation had a sketch map showing all sub-divisions. The 2010 amendment sought to shift boundaries of parcel 2594 to where parcel 2601 stood.
The Counter-claim for trespass and injunction
The Counter-claim failed for want of proof
The 6th and 7th Defendants asserted the Plaintiff encroached on parcel 2594 and sunk a borehole there, but they did not discharge the burden of proof, and their own case was undermined by the invalidity of the 2010 mutation on which they relied.
Legal principles established
#- Amendments to already surveyed plots can only be effected with the consent of the registered owners of the affected land
- An unsigned, undated and unregistered mutation form cannot be used to effect amendments to a Registered Index Map
Court orders
#- 1.A declaration that the amendments made by the District Surveyor on 2nd August 2010 or thereabouts to the Survey Map relating to Muputi/Kiima-Kimwe/2601 and effected by District Land Registrar are null, void and of no legal effect
- 2.A declaration that the Plaintiff is the legal owner of the land comprised in L.R. No. Muputi/Kiima-Kimwe/2601 which it has fenced off and on which it has sunk a borehole
- 3.The 6th and 7th Defendants to pay the costs of the suit and the Counter-claim
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndovu Builders & General Contractors Ltd v Attorney General & 6 others [2019] KEELC 1409 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1409/eng@2019-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.