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ELCPartially AllowedNot stated in the judgment (plaint dated 10th June 2013, filed 22nd July 2013)· [2020] KEELC 698 (KLR)

Nelson Kakai Sikanga v Sirengo Mohammed Samuel [2020] KEELC 698 (KLR)

Environment and Land Court
12 November 2020
3,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Bungoma court ordered a neighbour to clear structures off a land access road within three months but refused full eviction, confirming title deed measurements govern disputed land size.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel NDIVISI/MIHUU/2157, sued the defendant, owner of the adjacent parcel NDIVISI/MIHUU/3049, seeking eviction, a permanent injunction, costs and interest, alleging trespass and erection of structures on the suit land from September 2012. The defendant denied encroachment, contending the surveyors had made a mistake, and his witness, the vendor of both parcels, alleged the plaintiff registered the suit land as 40 ft x 100 ft instead of 25 ft x 100 ft. The court held that, absent production of the sale agreement, the title deed measurements govern, so the suit land measures 0.04 Ha and not 25 ft x 100 ft. Relying on the reports of the court-directed survey (Maryline Wanyonyi, PW2) and the Land Registrar, and on the plaintiff's own re-examination evidence, the court found that although the defendant did erect a structure and plant sisal, the encroachment was on the access road serving the plaintiff's parcel NDIVISI/MIHUU/3011 rather than on the suit land itself. The court rejected the officers' suggestion that the dispute be resolved by deleting the 5-metre access road or amalgamating the plaintiff's parcels, holding that the plaintiff was entitled to access under Section 28(c) of the Land Registration Act and that amalgamation under Section 22(1) required his own application and could not be forced on him. Judgment was entered for the plaintiff only in part: removal of encroaching structures from the access road within three months, re-establishment of the boundary to reopen the road, eviction in default, a permanent injunction against building or cultivating on the access road, and half costs. The claims for eviction from the suit land, full costs and interest were not granted.

Key legal issues

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01

Whether the defendant erected structures on the suit land

Holding

The defendant did put up structures and plant sisal, but the encroachment was on the access road serving parcel NDIVISI/MIHUU/3011, not on the suit land NDIVISI/MIHUU/2157

Reasoning

The plaintiff bore the burden under Section 109 of the Evidence Act to prove the defendant erected structures on the suit land. The surveyor's and Land Registrar's reports, and the plaintiff's own re-examination evidence, established that a road of access existed between the parcels and that the defendant's structure encroached onto that road rather than onto the suit land. The defendant did not deny erecting the structure but denied encroaching on the suit land.

p. 2
02

The correct measurements of the suit land

Holding

The court relied on the title deed; the suit land measures 0.04 Ha and is not 25 feet by 100 feet as alleged by DW2, since no sale agreement was produced to support the alleged registration error

Reasoning

DW2 claimed the plaintiff registered the plot as 40 ft x 100 ft instead of the 25 ft x 100 ft he sold. The court held that absent production of the sale agreement, the measurement on the title deed governs. The expert evidence that 25 ft x 100 ft equals 0.025 Ha confirmed the suit land (0.04 Ha) could not be the smaller parcel alleged.

p. 2
03

The plaintiff's right of access to parcel NDIVISI/MIHUU/3011

Holding

As registered proprietor, the plaintiff is entitled to access to parcel 3011 as an overriding interest under Section 28(c) of the Land Registration Act, and the proposed deletion or amalgamation away of the access road could not be effected without his consent

Reasoning

Both the Land Registrar and the surveyor suggested resolving the dispute by deleting the 5-metre access road or amalgamating the plaintiff's parcels. The court held that the plaintiff was entitled to access under Section 28(c) of the Land Registration Act and that under Section 22(1) combination of contiguous parcels requires application by the proprietor, so the suggestion could not be imposed on him.

p. 4
04

Whether the expert witness could disown the private surveyor's road

Holding

An expert cannot approbate and reprobate; having first agreed the private surveyor's road was proper as per the record, PW2 could not later question it

Reasoning

In cross-examination PW2 agreed the road created by the private surveyor was proper as per the record, but in re-examination said she did not know if it was properly created. The court invoked the doctrine that a party or witness cannot approbate and reprobate at the same time, undermining the attempt to blame the 2011 private surveyor's work for the dispute.

p. 3

Legal principles established

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  • The burden of proving a particular fact lies on the person who wishes the court to believe in its existence (Section 109, Evidence Act)
  • Registered land is subject, as overriding interests, to rights of way subsisting at first registration (Section 28(c), Land Registration Act)
  • Contiguous parcels owned by the same proprietor may only be combined by the Registrar on application by the proprietor; amalgamation cannot be forced on an owner (Section 22(1), Land Registration Act)

Court orders

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  1. 1.An order directed at the defendant, his family and relatives to remove any structure or property that has encroached onto the access road leading to land parcel NO NDIVISI/MIHUU/3011 within three (3) months from the date of the Judgment
  2. 2.Thereafter, the Land Registrar and Land Surveyor Bungoma to re-establish the boundary between land parcels NO NDIVISI/MIHUU/2157 and NDIVISI/MIHUU/3049 to re-open the access road to land parcel NO NDIVISI/MIHUU/3011
  3. 3.In default of removal, the defendant, his family, relatives, agents or servants to be evicted from the access road leading to parcel NO NDIVISI/MIHUU/3011
  4. 4.A permanent injunction restraining the defendant, his family, relatives, agents or servants from erecting structures or cultivating on the access road to land parcel NO NDIVISI/MIHUU/3011
  5. 5.The plaintiff awarded half costs of the suit

Authorities

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Legislation

  • Evidence ActSection 109
  • Land Registration ActSection 28(c)
  • Land Registration ActSection 22(1)
  • Registered Land Act (repealed)Section 30
Jurisdiction invoked
Original civil suit on land (eviction and injunction claims) before the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Nelson Kakai Sikanga v Sirengo Mohammed Samuel [2020] KEELC 698 (KLR)", Case Analysis (2020). Not stated in the judgment (plaint dated 10th June 2013, filed 22nd July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/698/eng@2020-11-12

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