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ELCPartially AllowedKisii ELC Case (as per plaint dated 13th April 2015; number not stated in judgment)· [2019] KEELC 2350 (KLR)

Benjamin Bosire Ogero v Alloys Mataya Moseti & 3 others [2019] KEELC 2350 (KLR)

Environment and Land Court
19 July 2019
2,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisii Environment and Land Court confirmed the plaintiff owns the land and ordered the defendants off it after officials proved the rival plot only existed on paper.

What this practically means

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Executive summary

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The Plaintiff, suing as the legal representative of her late husband Benjamin Bosire Ogero, claimed to be the registered owner of LR Kisii Municipality/Block I/847 and complained of trespass by the 1st and 2nd Defendants, who asserted ownership of an adjoining-sounding parcel, LR Kisii Municipality/Block I/828, registered in the name of the 2nd Defendant. By the amended plaint the Plaintiff sought declarations of ownership, expungement of the register for parcel 828, a permanent injunction, general damages for trespass, interest and costs. The 1st and 2nd Defendants denied trespass, asserted that the disputed ground was parcel 828, counterclaimed for declarations, eviction of the Plaintiff, an injunction and damages. The 3rd Defendant did not enter appearance; the 4th Defendant (Land Registrar) denied wrongdoing. At the hearing, the Plaintiff testified through PW1, and, by consent, the court referred the question of the physical location and boundaries of the two parcels to the Land Registrar, Kisii and the County Surveyor, Kisii, with each party at liberty to be represented by a private surveyor. Their joint report found parcel 847 registered to the Plaintiff's deceased husband, parcel 828 registered to the 2nd Defendant, that parcel 828 did not appear on the Registry Index Map, that the two parcels overlapped and occupied the same position, that parcel 828 was irregularly allocated, and that survey records for parcel 828 had been expunged. The court adopted the report as its judgment, entered judgment for the Plaintiff, dismissed the counterclaim, and ordered the Defendants to vacate, issued a permanent injunction, and awarded the costs of both the suit and the counterclaim to the Plaintiff against the 1st and 2nd Defendants jointly and severally.

Key legal issues

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01

Validity of the Plaintiff's title to parcel Kisii Municipality/Block I/847

Holding

The Plaintiff's allocation and title were regular; the evidence and documents established regular allocation of parcel 847 to the Plaintiff's late husband in 1986 and issuance of a certificate of lease.

Reasoning

The Plaintiff's documentary bundle PEx.1-22 illustrated the acquisition of parcel 847, allocated to her late husband by the Commissioner of Lands in 1986 with a certificate of lease issued on 2nd July 2003. No contrary evidence was adduced as the 1st and 2nd Defendants failed to attend the hearing. The Land Registrar's and Surveyor's report confirmed registration of parcel 847 in the name of Benjamin Bosire Ogero, supporting the regularity of the title.

p. 3
02

Existence and location of parcel Kisii Municipality/Block I/828 on the ground

Holding

Parcel 828 does not appear on the Registry Index Map and does not exist on the ground; its records were irregularly created, superimposed and overlapping parcel 847, and were expunged.

Reasoning

The joint report of the Land Registrar and County Surveyor concluded that parcel 828 does not appear on the RIM, that parcels 828 and 847 overlap and occupy the same position and size, that parcel 828 was irregularly allocated to Priscah Kerubo Mogute, and that survey records for parcel 828 were expunged and replaced with those for parcel 847. The court accepted this evidence as conclusive of the physical location of the two parcels.

p. 3
03

Whether the court could adopt the Land Registrar's and Surveyor's joint report as its judgment

Holding

Yes; with the parties' agreement and given the report fully resolved the issues, the court adopted the report as judgment of the court.

Reasoning

The court had, with the agreement of all parties, made an order of reference directing the Land Registrar and County Surveyor to identify and delineate the physical location of the two parcels using the appropriate RIM. Their joint report disposed of all the issues in contention. None of the Defendants filed comments on the report. The court found the report unequivocal and accepted and adopted it as the judgment of the court.

p. 3

Legal principles established

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  • A joint report by the Land Registrar and County Surveyor, prepared pursuant to an order of reference with the parties' consent, may be adopted as the judgment of the court where it fully disposes of all issues in the suit.
  • The Land Registrar and Surveyor are the legal custodians of documents relating to registered land, and their records are conclusive as to the existence and delineation of parcels.

Court orders

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  1. 1.The Plaintiff is declared the lawful registered proprietor of land parcel Kisii Municipality/Block I/847
  2. 2.The 1st and 2nd Defendants are ordered to vacate land parcel Kisii Municipality/Block I/847 forthwith, failing which the Plaintiff may apply for an order of eviction
  3. 3.A permanent injunction is issued restraining the Defendants, their agents and servants from trespassing onto or interfering with land parcel Kisii Municipality/Block I/847
  4. 4.The costs of the suit and the counterclaim are awarded to the Plaintiff against the 1st and 2nd Defendants jointly and severally
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title and occupation of land (pleaded by plaint)

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, "Benjamin Bosire Ogero v Alloys Mataya Moseti & 3 others [2019] KEELC 2350 (KLR)", Case Analysis (2019). Kisii ELC Case (as per plaint dated 13th April 2015; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2350/eng@2019-07-19

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