Confluence Limited v Home Afrika Limited [2020] KEELC 47 (KLR)

Environment and Land Court

3 November 2020

AOA.O. Ombwayo

1,010 words in judgment

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The bottom line

The Environment and Land Court in Kisumu ruled that a Land Registrar's survey report doesn't settle a boundary dispute, so the trespass case can proceed.

What this practically means

Executive summary

Confluence Ltd, registered owner of Kisumu/Nyahera/2394, sued Home Afrika Ltd, registered owner of Kisumu/Dago/755, alleging that the defendant's surveyors trespassed onto its parcel, placed beacons purporting to hive off approximately 5 acres, commenced ground clearing and threatened to bring down its stone wall. The plaintiff sought a permanent injunction restraining trespass or interference, plus costs and interest. The defendant denied trespass and asserted the parcels share no common boundary. By consent order of 17/9/2018, the County Lands Registrar and County Lands Surveyor were directed to demarcate the boundaries of the three parcels, with a report to be filed in court. The resulting re-survey report dated 13/2/2020 found that the parcels are in different registration sections (Nyahera and Dago sub-locations), that Kisumu/Nyahera/1597 lies between the two disputed parcels, that the plaintiff's stone fence encroaches approximately 1.8 ha (4.5 acres) into Kisumu/Dago/755, and that the plaintiff appears uncertain of the true location of its parcel. On 28/9/2020 the defendant filed a Preliminary Objection contending the court lacked jurisdiction because the Land Registrar had determined the dispute and filed the report. Applying Section 18(2) of the Land Registration Act, the court held the report was not a determination of a boundary dispute, noting the parties do not even share a common boundary. The Preliminary Objection was dismissed with costs. The main suit remains pending for hearing on the trespass and injunction claims.

Key legal issues

Whether the Land Registrar's report constituted a boundary determination barring the suit under Section 18(2) of the Land Registration Act

Holding

The Preliminary Objection was dismissed; the report was not a boundary determination and, in any event, the parcels do not share a common boundary, so Section 18(2) was not a bar.

Reasoning

The court considered Section 18(2) of the Land Registration Act, which bars court actions relating to boundary disputes unless boundaries have been determined under that section. Following the consent order of 17/9/2018, the Regional County Director of Surveys re-surveyed the parcels and reported on 13/2/2020 that the parcels lie in different registration sections and that Kisumu/Nyahera/1597 lies between the two disputed parcels. The court held that since the parties do not even share a common boundary, the report could not amount to a determination of a boundary dispute between them, and the objection failed.

p. 2

Legal principles established

A report by the Land Registrar and Surveyor following a consent order is not a determination of a boundary dispute under Section 18(2) of the Land Registration Act where the parties do not share a common boundary.

Court orders

1.The Preliminary Objection dated 28/9/2020 is dismissed with costs

Authorities

Legislation

Land Registration ActSection 18(2)

Jurisdiction invoked: Environment and Land Court jurisdiction under the Environment and Land Court Act; issue arises under Section 18(2) of the Land Registration Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Confluence Limited v Home Afrika Limited [2020] KEELC 47 (KLR)", Case Analysis (2020). Not stated in the judgment (E&L Court, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/47/eng@2020-11-03

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