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Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 121 of 2014· [2019] KEELC 4455 (KLR)

Joshua Kinyua Kiarie & another v Muiruri Wainaina & another [2019] KEELC 4455 (KLR)

Environment and Land Court
20 February 2019
1,142 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiffs, administrators of the estate of Joyce Wamaitha, sued for a resurvey and fixing on the ground of the boundaries of L.R Nos. Nyeri/Uaso Nyiro/205, 206 and 207 (formerly 127), contending that the defendants' parcels 205 and 206 were larger on the ground than their registered areas, while the plaintiffs' parcel 207 was smaller. The defendants denied the claim, asserting the boundary had been fixed by a Government Surveyor with all parties' concurrence, and raised objections on limitation and jurisdiction. At hearing the parties recorded a consent directing the District Land Registrar and District Land Surveyor to resurvey the parcels and fix boundaries in accordance with the registry records and to file a report within 90 days, with the parties sharing the officers' costs. The resurvey found parcels 205 and 206 exceeded their registered areas by 0.86 ha and 0.57 ha respectively, while parcel 207 was deficient by 1.032 ha; boundaries were fixed per the green cards and registry index map, the excess portions falling on parcel 207. The court held that, being a boundary-fixing claim, it lacked jurisdiction at filing under Section 18(2) of the Land Registration Act, 2012, but the consent and the resulting Registrar's report cured the defect. Adopting the unchallenged report as its judgment, the court ordered each party to bear their own costs.

Key legal issues

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01

Whether the court had jurisdiction over the boundary dispute at filing

Holding

The court lacked jurisdiction to entertain the boundary dispute when filed, by dint of Section 18(2) of the Land Registration Act, 2012.

Reasoning

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.

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02

Whether the consent and the Land Registrar's report cured the jurisdictional defect

Holding

Yes; the consent directing a resurvey and the resulting report cured the defect, allowing the court to act on the report.

Reasoning

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.

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03

The actual ground measurements of the parcels vis-à-vis registered areas

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Adoption of the report of the District Land Registrar and District Land Surveyor as the judgment of the court
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 18(2)
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

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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, "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.