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)
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance with the court's prior orders generating the County Commissioner's report
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
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.
Mandate of the Land Registrar and Surveyor over boundary disputes
Boundary disputes fall within the statutory mandate of the Land Registrar and Surveyor under sections 18 and 19 of the Land Registration Act
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.
Application of alternative dispute resolution and access to justice
Court-referred ADR and the resulting reports are constitutional tools that must be considered in their entirety to meet the ends of justice
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.
Legal principles established
#- 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
#- 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.The Land Registrar and Surveyor, Migori County to comply with the boundary-fixing order within ninety (90) days from 27th May 2020
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.