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ELCOtherNot stated in extract· [2019] KEELC 2301 (KLR)

Gilbert Agata Nyamwaya & 2 others v Cliff Nyabuti Nyakundi & 6 others [2019] KEELC 2301 (KLR)

Environment and Land Court
19 July 2019
JMJ. M. Mutungi
809 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that surveyor and land registrar reports cannot decide a land case when the real dispute is about access, not boundaries.

What this practically means

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Executive summary

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The Plaintiffs sued the 1st–5th Defendants for trespass onto land parcel West Mugirango/Bosamaro East/1055 and challenged a report by the 6th Defendant, the Land Registrar, dated 15th November 2012, which apparently reduced their parcel from 0.46Ha to 0.38Ha. They sought a declaration that their parcel measures 0.46Ha, an order nullifying the Registrar's report, and an order compelling the Registrar to demarcate the boundaries of parcels 614, 616 and 1055 and reopen an access road allegedly encroached upon by the Defendants. The Defendants denied trespass and denied the Plaintiffs had basis to challenge the Registrar's report. On 16th February 2017 the parties agreed to refer the boundary dispute to the Land Registrar and Surveyor for determination. Their reports, dated 15th and 23rd May 2018, revealed the dispute was essentially a family dispute over a long-existing footpath used to access Nyangweta Health Centre; both agreed the Registry Index Map shows no access road where the footpath passes and recommended its continued existence. The court declined to adopt the reports as the judgment of the court, holding that the reports did not resolve the pleaded issues and that the real question was not fixing parcel boundaries but whether an access existed where the footpath ran, and whether some parcels were landlocked. The court noted no party had claimed an easement or invoked the Land Act 2012 process for creating an access road. It admitted the reports into the record, directed the parties to prepare the suit for formal hearing, and granted liberty to call the Land Registrar or Surveyor as witnesses.

Key legal issues

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01

Whether the Land Registrar's and Surveyor's reports could be adopted as the judgment of the court

Holding

The court declined to adopt the reports as judgment, finding they did not resolve the issues in the suit

Reasoning

The court found the dispute was not purely a boundary dispute but rather concerned whether an access road existed where a footpath ran, and whether some parcels were landlocked. Since no party claimed an easement or invoked the Land Act 2012 process for creating an access road, and the real issue was trespass rather than fixing parcel boundaries, the court found it imprudent to make a final determination on the reports alone.

p. 2
02

Nature of the dispute between the parties

Holding

The dispute is a family dispute centring on a long-existing footpath used to access Nyangweta Health Centre, not purely a boundary dispute

Reasoning

The Land Registrar's report acknowledged the dispute was a family dispute arising from the sale by one brother of a parcel of land to the Plaintiff. Both the Land Registrar and Surveyor agreed the Registry Index Map does not show any access road where the footpath passes, and recommended the continued existence of the footpath.

p. 2

Legal principles established

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  • Court-ordered expert boundary reports may be rejected for adoption as judgment where they do not resolve the issues pleaded in the suit

Court orders

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  1. 1.The reports of the Land Registrar and Surveyor be admitted as part of the court record
  2. 2.Parties to take necessary steps to prepare the suit for formal hearing
  3. 3.Any party at liberty to call the Land Registrar or Surveyor as a witness to explain the reports at the hearing

Authorities

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Legislation

  • Land ActNot specified
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court)

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, "Gilbert Agata Nyamwaya & 2 others v Cliff Nyabuti Nyakundi & 6 others [2019] KEELC 2301 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2301/eng@2019-07-19

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