Misheck Kere Kirungo v James Kamau Njoroge [2019] KEELC 3299 (KLR)
The bottom line
#A Kenyan court resolved a family land boundary dispute by adopting the County Surveyor's report as judgment, and both parties who encroached got nothing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant had encroached onto the Plaintiff's land warranting an injunction and damages
No; the survey established that both parties had encroached on each other's land, and the Plaintiff himself was encroaching at the point of the Defendant's house, so the Plaintiff was not entitled to an injunction or general damages
The County Surveyor fixed the straight boundary 'A-G' per the mutation form subdividing Lari/Bathi/61. Both parties agreed this was the correct boundary. The survey showed mutual encroachments: the Defendant by about 2.0 feet at point 'B' and the Plaintiff by 2.0-2.5 feet at the point where the Defendant's house stood ('EF'). Since the Plaintiff was himself a transgressor at the alleged point of encroachment, his claim of trespass against the Defendant failed and both injunction and damages were refused.
Proper disposition of the suit following the County Surveyor's report
The report was adopted as the judgment of the Court, the fixed boundary to be honoured, the suit marked as settled, and each party to bear their own costs
The report resolved the contentious issue of the boundary location. Neither party was absolved of blame as both encroached. The parties agreed the re-established straight boundary was correct. Given both benefited from the survey and are blood brothers, the court found it inequitable to award costs and expressed the hope the parties learnt that not every dispute needs to be litigated. The suit was accordingly marked as settled in terms of the report.
Legal principles established
#- A boundary dispute that cannot be resolved by photographic evidence must be resolved by a survey and a report to the court on the survey findings
- A court may adopt a court-ordered surveyor's report as the judgment of the court and direct the parties to honour the boundary as fixed on the ground
- Where both parties encroach on each other's land and both benefit from the survey, it is inequitable to award costs to either party
Court orders
#- 1.Adoption of the County Surveyor's report as the judgment of the Court
- 2.That the parties honour and respect the boundary as established and fixed by the County Surveyor on the ground
- 3.That the suit be marked as settled in terms of the County Surveyor's report, the boundary between Lari/Bathi/819 and Lari/Bathi/820 remaining as fixed by the County Surveyor on the ground
- 4.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over a land/boundary dispute (suit instituted by plaint filed in court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Misheck Kere Kirungo v James Kamau Njoroge [2019] KEELC 3299 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3299/eng@2019-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.