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ELCDismissedNot stated in the ruling· [2020] KEELC 1687 (KLR)

Nzomo Kaleli v Kaweu Matheka, Kamene Mativo & Titus Mutisya Mativo (Environment & Land Case 79 of 2017) [2020] KEELC 1687 (KLR)

Environment and Land Court
16 July 2020
CMC. G. Mbogo
920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In Kenya, land boundary disputes belong to the Land Registrar, not the courts or surveyors, so asking a judge to order a re-survey risks losing costs.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Nzomo Kaleli, moved the court by notice of motion dated 30th September, 2019 under sections 17 and 18 of the Land Registration Act and sections 1A and 3A of the Civil Procedure Act, seeking an order for a re-survey of parcel Nzaui/Kilili/20 and a current report. He contended that boundary and encroachment was the key issue, best addressed by resurvey, and that he had paid the requisite fees to the Surveyor's office. The Defendants/Respondents, through the 1st Defendant Kaweu Matheka, opposed the application, arguing it was misconceived, frivolous and an abuse of process; that a competent survey in 2016 (report KM-1) had found encroachment on Nzaui/Kilili/20 by Nzaui/Kilili/22, not by the 1st Defendant's parcel Nzaui/Kilili/14; and that a second, contradictory report would confuse the court. Only the Plaintiff filed submissions, stating the Land Registrar wished to visit the suitland before testifying. The court noted the letter of 19th September 2019 was signed on behalf of the District Surveyor with no indication it was on the Land Registrar's instructions, and that a boundary and encroachment dispute is a matter for the Land Registrar under section 18 of the Land Registration Act. Characterising the application as vexatious and frivolous, the court dismissed it with costs to the Defendants/Respondents on 16th July, 2020.

Key legal issues

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Whether a court should order a re-survey of the suit property where an earlier survey exists

Holding

The application was dismissed; a boundary and encroachment dispute is within the mandate of the Land Registrar under section 18 of the Land Registration Act, and involving a resurvey by the Surveyor while presenting it as a site visit by the Land Registrar would be vexatious and frivolous

Reasoning

The court examined the witness summons and correspondence and found that the letter of 19th September 2019 was written by the District Surveyor's office, not on the Land Registrar's instructions. Since the pleaded dispute was boundary and encroachment, section 18 of the Land Registration Act vests jurisdiction in the Land Registrar. Presenting a resurvey as a Land Registrar site visit would annoy and add no value, rendering the application frivolous and vexatious.

p. 2

Legal principles established

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  • Boundary and encroachment disputes over registered land fall for determination by the Land Registrar under section 18 of the Land Registration Act, not by re-survey ordered through the court at the suit of a party dissatisfied with an earlier survey

Court orders

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  1. 1.The application dated 30th September, 2019 is dismissed
  2. 2.Costs to the Defendants/Respondents

Authorities

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Legislation

  • Land Registration Actsections 17, 18
  • Civil Procedure Actsections 1A, 3A
Jurisdiction invoked
Sections 17 and 18 of the Land Registration Act No. 3 of 2012 and sections 1A and 3A of the Civil Procedure Act

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, "Nzomo Kaleli v Kaweu Matheka, Kamene Mativo & Titus Mutisya Mativo (Environment & Land Case 79 of 2017) [2020] KEELC 1687 (KLR)", Case Analysis (2020). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1687/eng@2020-07-16

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