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ELCOtherNot stated in judgment (Migori ELC suit re LR No. Kamagambo/Kamwango/597)· [2020] KEELC 2238 (KLR)

Patrick Okoth Ochwa (Suing as administrator ad litem for the estate of Mishael Ochwa Ojwang (Deceased) v Bernard Otieno Ochola & 8 others [2020] KEELC 2238 (KLR)

Environment and Land Court
27 May 2020
744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Migori court ruled a land dispute report can't be adopted until the Land Registrar officially fixes the property boundaries first.

What this practically means

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Executive summary

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This ruling by G.M.A. Ongondo, J of the Environment and Land Court at Migori, delivered electronically on 27th May 2020 during the Covid-19 pandemic, concerns a report dated 7th August 2019 by the County Commissioner, Migori, prepared pursuant to a court order of 7th November 2017 referring the parties to arbitration over land parcel LR No. Kamagambo/Kamwango/597. The underlying suit, begun by plaint dated 17th October 2015, seeks eviction and mandatory injunction against defendants alleged to have unlawfully entered land registered in the name of the deceased original plaintiff. The County Commissioner's report, following a Rongo sub-county meeting of 3rd April 2019 at Minyenya Health Centre, resolved the dispute in favour of the plaintiff and disclosed a further parcel, LR No. Kamagambo/Kamwango/596. The court directed parties to file comments on the report; counsel for the plaintiff and the 2nd to 6th defendants, and the 7th and 9th defendants, filed submissions, while the 1st and 8th defendants filed none. The court held that the two orders of 7th November 2017 - the ADR referral and the direction to the Land Registrar and Surveyor to fix boundaries under sections 18 and 19 of the Land Registration Act - must be read conjunctively and both complied with. Endorsing Andrew Marigwa v Josephat Ondieki Kebati, it held boundary disputes fall to the Land Registrar and Surveyor. The court deferred adoption of the report and gave the Land Registrar and Surveyor ninety days to comply. No costs order was made and the substantive suit remains pending.

Key legal issues

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01

Compliance with the court's prior orders generating the County Commissioner's report

Holding

The two orders of 7th November 2017 (ADR/boundary determination and the Land Registrar and Surveyor's boundary fixing) must be read conjunctively and both complied with before the report can be adopted

Reasoning

The court held that the order directing the County Commissioner to arbitrate and the order directing the Land Registrar and Surveyor to fix boundaries are to be read together. Since only the former had produced a report, adoption of the report would be premature until the statutory boundary process under sections 18 and 19 of the Land Registration Act is completed within ninety days.

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02

Mandate of the Land Registrar and Surveyor over boundary disputes

Holding

Boundary disputes fall within the statutory mandate of the Land Registrar and Surveyor under sections 18 and 19 of the Land Registration Act

Reasoning

Relying on the decision in Andrew Marigwa v Josephat Ondieki Kebati, the court affirmed that the Land Registrar and Surveyor are the officers mandated under the LRA to determine land boundary disputes, and its order to them was in consonance with sections 18 and 19 of the Act.

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03

Application of alternative dispute resolution and access to justice

Holding

Court-referred ADR and the resulting reports are constitutional tools that must be considered in their entirety to meet the ends of justice

Reasoning

Invoking Articles 159(2)(d), 25(c), 48 and 50(1) of the Constitution, the court reasoned that ADR methods include the orders it made in 2017, and that the reports generated must be considered together in their entirety, the bottom line being to meet the ends of justice in the dispute.

p. 2

Legal principles established

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  • The Land Registrar and Surveyor are the officers mandated under the Land Registration Act to determine disputes relating to land boundaries
  • Court-ordered alternative dispute resolution processes are anchored in Article 159(2)(d) of the Constitution

Court orders

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  1. 1.Deferral of the possible adoption of the County Commissioner's report dated 7th August 2019 pending compliance with order (a) of 7th November 2017 issued pursuant to sections 18 and 19 of the Land Registration Act
  2. 2.The Land Registrar and Surveyor, Migori County to comply with the boundary-fixing order within ninety (90) days from 27th May 2020

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 7(3)(b), 25(c), 48, 50(1), 159(2)(b) and (d)
  • Land Registration ActSections 18 and 19
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 3A
  • Environment and Land Court Act, 2015Sections 3 and 19

Cases cited (1)

  • Andrew Marigwa –Vs- Josephat Ondieki Kebati
    (2017) eKLR
Jurisdiction invoked
Articles 7(3)(b), 159(2)(b) and (d) of the Constitution; Section 3A of the Civil Procedure Act; Sections 3 and 19 of the Environment and Land Court Act, 2015

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, "Patrick Okoth Ochwa (Suing as administrator ad litem for the estate of Mishael Ochwa Ojwang (Deceased) v Bernard Otieno Ochola & 8 others [2020] KEELC 2238 (KLR)", Case Analysis (2020). Not stated in judgment (Migori ELC suit re LR No. Kamagambo/Kamwango/597). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2238/eng@2020-05-27

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