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ELCDismissedMigori ELC Case (plaint dated 14th August 2017) - not stated in full in the judgment· [2020] KEELC 736 (KLR)

George Matiko Chacha v Gati Wambura & another [2020] KEELC 736 (KLR)

Environment and Land Court
22 October 2020
2,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Migori court dismissed a landowner's trespass claim, ruling that an official survey report fixing the existing boundary should stand.

What this practically means

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Executive summary

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This was a first-instance boundary and trespass suit before the Environment and Land Court at Migori, decided by G.M.A Ongondo, J. The plaintiff, registered proprietor of Bugumbe/Mabera/1173, sued for a permanent injunction to stop the 1st defendant (proprietor of the neighbouring Bugumbe/Mabera/1174) from encroaching on his land, and for an order compelling the 2nd defendant, the Land Registrar Kuria, to confirm measurements and rectify the boundaries and title deeds, alleging a mutation error of approximately 5 metres. The 1st defendant denied trespass, counter-alleged that the plaintiff destroyed the sisal boundary, and sought dismissal of the suit, a permanent injunction against the plaintiff, and a mandatory order compelling the plaintiff to fence his parcel. The Land Registrar testified and produced a survey report (2nd DEXhibit 1) conducted under Sections 18 and 19 of the Land Registration Act, which found that ground measurements did not tally with the map but recommended adopting the existing boundary as the common boundary. Framing three issues, the court held that the existence of the boundary was undisputed, that the Registrar's report was opinion evidence not binding on the court but sound and worthy of approval, and that no trespass by the 1st defendant was proved. The court found the plaintiff's claim unproved on a balance of probabilities, dismissed the suit, adopted the Registrar's report as the judgment of the court, and directed implementation of its conclusions in terms of prayers (a) to (e) of the 1st defendant's statement of defence.

Key legal issues

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01

Whether the 1st defendant trespassed into the plaintiff's land

Holding

No trespass by the 1st defendant was established; the Registrar's survey showed the plaintiff's land on the ground was bigger than on the map and the existing boundary was adopted as the common boundary

Reasoning

The court considered the plaint, PW1's statements and the evidence of DW1, the Land Registrar, whose survey (2nd DEXhibit 1) was conducted pursuant to Sections 18 and 19 of the Land Registration Act. The report concluded that the ground measurements did not tally with the map but that the existing boundary should be adopted as the common boundary, and the court found no reason to interfere with that expert finding.

p. 4
02

Whether the Registrar's boundary report (2nd DEXhibit 1) should be adopted

Holding

The report, being opinion evidence under Sections 48-54 of the Evidence Act, was not binding but the court approved it and adopted it as the judgment of the court

Reasoning

Citing CD Desouza v BR Sharma, the court held that opinion evidence is not binding and may be accepted or rejected. Having reviewed the circumstances of the site visit ordered by the court, the judge found no reason to interfere with the Registrar's determination fixing the common boundary, approving the approach in Andrew Marigwa v Josephat Ondieki Kebati.

p. 4
03

Whether rectification of the register under Sections 79 and 80 of the Land Registration Act was warranted

Holding

No; this was not an appropriate case to invoke those powers in view of the survey report

Reasoning

Although Article 40(1) protects property rights and Sections 79 and 80 of the Land Registration Act provide for rectification, the court found that the report of the Registrar had finally determined the dispute by adopting the existing boundary, leaving no room for rectification of the register or the titles.

04

Whether the plaintiff was entitled to the reliefs sought in the plaint

Holding

The plaintiff's claim was not proved on a balance of probabilities and he was not entitled to the reliefs sought

Reasoning

Applying the authorities cited including Nakuru Industries, Esther Rurigi and Azzuri Ltd, the court held that the plaintiff failed to prove the alleged encroachment of approximately 5 metres by the 1st defendant, and the defendants' evidence thwarted his claim, so the suit failed.

p. 4

Legal principles established

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  • Opinion evidence, including a Land Registrar's boundary determination, is not binding on the court, which may accept or reject it, but where sound it may be adopted as the judgment of the court
  • The tort of trespass requires an unjustifiable entry upon another's land and is actionable per se
  • Issues for determination in a suit flow from the pleadings or as framed by the parties

Court orders

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  1. 1.The plaintiff's suit is dismissed as devoid of merit
  2. 2.The court approved the report of DW1 (2nd DEXhibit 1) as the judgment of the court and directed that the observation or conclusion therein be implemented accordingly
  3. 3.Implementation in terms of prayers (a), (b), (c), (d) and (e) sought in the 1st defendant's statement of defence dated 20th September 2017, including permanent injunction against the plaintiff and a mandatory order to erect a permanent fence around parcel Bugumbe/Mabera/1173 under supervision of the Surveyor and OCS Isebania

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Articles 7(3)(b), 159(2)(b) and (d)
  • Land Registration ActSections 18, 19, 79, 80
  • Evidence Act (Cap 80 Laws of Kenya)Sections 48 to 54
  • Land Act, 2016 (2012)Section 152A
  • Trespass Act Cap 403 Laws of Kenya
  • Civil Procedure Act chapter 21 Laws of KenyaSection 3A
  • Environment and Land Court Act, 2015 (2011)Sections 3 and 19

Cases cited (13)

  • Azzuri Limited vs Pink Properties Ltd
    (2018) eKLR
  • Esther Njoki Rurigi vs Patrick Gathenya
    (2005) eKLR
  • Elias Joseph Waburi Wamunyu vs Joseph Mwangi Njoroge
    (2017) eKLR
  • Rahab Mumbi Kimani vs Damaris Wanjiku Gachoka
    (2018) eKLR
  • Galaxy Paints Ltd v Falcon Grounds Ltd
    (2000) 2EA 381
  • Nakuru Industries Ltd v S.S Mehta and sons
    (2010) eKLR
  • Trust Bank Ltd v Amin Company Ltd and another
    (2000) KLR 164
  • DT Dobie and Company v Muchina
    (1982) KLR 1
  • CD Desouza v BR Sharma
    (1953) 26 KLR 41
  • Amosam Builders Developers Ltd v Gachie and 2 others
    (2009) KLR 628
  • Registered Trustees, Legio Maria Africa Church Mission v Simeon Nyamweya Obwocha
    (2018) eKLR
  • Andrew Marigwa v Josephat Ondieki Kebati
    (2017) eKLR
  • Eric Adome and another v Pauline Kasumba Osebe and another
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court Act, 2015, Sections 3 and 19; Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010 (mode of delivery)

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, "George Matiko Chacha v Gati Wambura & another [2020] KEELC 736 (KLR)", Case Analysis (2020). Migori ELC Case (plaint dated 14th August 2017) - not stated in full in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/736/eng@2020-10-22

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