Benjamin Bosire Ogero v Alloys Mataya Moseti & 3 others [2019] KEELC 2350 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the Plaintiff's title to parcel Kisii Municipality/Block I/847
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.
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.
Existence and location of parcel Kisii Municipality/Block I/828 on the ground
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.
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.
Whether the court could adopt the Land Registrar's and Surveyor's joint report as its judgment
Yes; with the parties' agreement and given the report fully resolved the issues, the court adopted the report as judgment of the court.
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.
Legal principles established
#- 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
#- 1.The Plaintiff is declared the lawful registered proprietor of land parcel Kisii Municipality/Block I/847
- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.