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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 4481 (KLR)

David Murai Kori v District Land Registrar Nyandarua & another [2019] KEELC 4481 (KLR)

Environment and Land Court
26 February 2019
MOM.C. Oundo
1,585 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered the Land Registrar to survey and fix disputed land boundaries after he wrongly refused to act, confirming landowners can force this directly.

What this practically means

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Executive summary

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The Applicant, registered proprietor of Nyandarua/Mawingo/2872 (a subdivision of Nyandarua/Mawingo/2512), moved the Environment and Land Court at Nyahururu by Notice of Motion dated 12th May 2016 seeking an opinion and orders compelling the Land Registrar, Nyandarua and Samburu Counties, to fix the boundaries of his parcel and the adjacent parcel Nyandarua/Mawingo/2522 owned by the Interested Party. The parcels share a common boundary separated by an approximately 6-metre access road. Following a 2014 boundary dispute, the Registrar's report of 3rd April 2014 found that the proprietors of parcel 2522 had encroached on the road, but this conflicted with the District Surveyor's letter of 21st February 2014 recommending re-measurement. The parties jointly agreed, under Article 159 of the Constitution, to have the parcels re-measured and wrote to the Registrar on 25th September 2014, but the Registrar refused to act unless directed by the court. The Respondent and Interested Party neither filed pleadings nor submissions despite service, and the application was treated as unopposed. Relying on Sections 18, 19 and 86(1) of the Land Registration Act and the decision in Terry C Maina v District Land Registrar, Kajiado, the court held that the Registrar is empowered and obligated to fix boundaries when moved by a party, and that any aggrieved person may seek the court's opinion. The application was allowed, with the Registrar directed to define the boundaries by survey within 90 days; no costs were awarded as the application was undefended.

Key legal issues

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Whether the Registrar's refusal to re-measure and fix the boundaries of the parties' parcels, despite a joint request, was proper

Holding

It was not proper; the Registrar is obligated under Sections 18 and 19 of the Land Registration Act to act on an application by interested parties to define and fix boundaries in their precise position

Reasoning

Sections 18 and 19 of the Land Registration Act empower and obligate the Land Registrar to fix boundaries upon being moved by a party or aggrieved person. Section 86(1) allows an aggrieved person to state a case for the court's opinion. The Applicant and Interested Party had jointly requested re-measurement in line with the District Surveyor's recommendations of 21st February 2014, but the Registrar refused to act unless directed by the court. The court, adopting Terry C Maina v District Land Registrar, Kajiado, held the Registrar must act so that ground acreage corresponds to the titles. The Applicant therefore made out his case.

p. 2

Legal principles established

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  • Under Section 86(1) of the Land Registration Act, apart from the Registrar, any aggrieved person may seek the opinion of the Court on the exercise of a power or performance of a duty under the Act, and the Court's opinion is binding on the parties
  • By virtue of Sections 18 and 19 of the Land Registration Act, the Land Registrar is empowered to fix boundaries and is obligated to act on an application by an interested party to define and fix boundaries

Court orders

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  1. 1.The Land Registrar Nyandarua and Samburu Counties, within 90 days from the date of being served with the Order/Ruling, to cause to be defined by survey the precise position of the boundaries in respect of land parcels Nyandarua/Mawingo/2872 and Nyandarua/Mawingo/2522 pursuant to Sections 18 and 19 of the Land Registration Act 2012
  2. 2.The Applicant's Notice of Motion dated 12th May 2016 allowed as prayed, with no costs as it was not defended

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 159
  • Land Registration ActSections 18, 19, 86(1), 100
  • Environment and Land Court ActSection 3
  • Civil Procedure ActSections 1A, 1B, 3A, 63

Cases cited (1)

  • Terry C Maina vs District Land Registrar, Kajiado
    [2015] eKLR
Jurisdiction invoked
Section 86(1) of the Land Registration Act (stating a case for the opinion of the Court); Sections 18, 19 of the Land Registration Act; Article 40 of the Constitution; Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Section 3 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Murai Kori v District Land Registrar Nyandarua & another [2019] KEELC 4481 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4481/eng@2019-02-26

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