George Matiko Chacha v Gati Wambura & another [2020] KEELC 736 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st defendant trespassed into the plaintiff's land
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
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.
Whether the Registrar's boundary report (2nd DEXhibit 1) should be adopted
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
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.
Whether rectification of the register under Sections 79 and 80 of the Land Registration Act was warranted
No; this was not an appropriate case to invoke those powers in view of the survey report
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.
Whether the plaintiff was entitled to the reliefs sought in the plaint
The plaintiff's claim was not proved on a balance of probabilities and he was not entitled to the reliefs sought
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.
Legal principles established
#- 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
#- 1.The plaintiff's suit is dismissed as devoid of merit
- 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.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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.