Joshua Kinyua Kiarie & another v Muiruri Wainaina & another [2019] KEELC 4455 (KLR)
The bottom line
#Kenyan courts cannot decide land boundary disputes until the Land Registrar fixes the boundaries — but parties can consent to a resurvey and unlock the court's power.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction over the boundary dispute at filing
The court lacked jurisdiction to entertain the boundary dispute when filed, by dint of Section 18(2) of the Land Registration Act, 2012.
The suit sought resurvey and fixing of boundaries of registered land, a function reserved by statute to the Land Registrar. Section 18(2) bars courts from entertaining boundary disputes over registered land unless the boundaries have first been determined in accordance with that section. The court acknowledged this bar expressly, noting that at the time of filing it had no jurisdiction to entertain the dispute.
Whether the consent and the Land Registrar's report cured the jurisdictional defect
Yes; the consent directing a resurvey and the resulting report cured the defect, allowing the court to act on the report.
The parties, through their advocates, consented to a resurvey and fixing of boundaries by the District Land Registrar and District Land Surveyor in accordance with the registry records. The officers conducted the exercise on 17th October 2017 and 14th December 2017 with all parties present, and filed a report. Since the statutory mischief underlying the jurisdictional bar — determination of boundaries by the Registrar — had been complied with, the court could adopt the report and render judgment on it.
The actual ground measurements of the parcels vis-à-vis registered areas
The resurvey established that parcels 205 and 206 held excesses of 0.86 ha and 0.57 ha respectively, both falling on parcel 207, which was 1.032 ha in deficit.
The Land Registrar's and Surveyors' report found that parcel 205 measured 2.88 ha against a registered 2.02 ha (excess 0.86 ha), parcel 206 measured 2.59 ha against 2.02 ha (excess 0.57 ha), and parcel 207, registered at 17.332 ha, measured only 16.30 ha on the ground (deficit 1.032 ha). Boundaries were fixed in accordance with the green cards and the registry index map, with the excess portions falling on parcel 207.
Legal principles established
#- Under Section 18(2) of the Land Registration Act, 2012, a court shall not entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with that section.
- A jurisdictional defect arising from an unresolved boundary dispute can be cured where the parties consent to a resurvey by the Land Registrar and Surveyor, whose report then removes the bar.
- An unchallenged report of the Land Registrar may be adopted as the judgment of the court.
Court orders
#- 1.Adoption of the report of the District Land Registrar and District Land Surveyor as the judgment of the court
- 2.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act, subject to Section 18(2) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kinyua Kiarie & another v Muiruri Wainaina & another [2019] KEELC 4455 (KLR)", Case Analysis (2019). ELC No. 121 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4455/eng@2019-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.