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ELCPartially AllowedEnvironment & Land Case 701 of 2017· [2020] KEELC 2879 (KLR)

Machoge v Tauta (Environment & Land Case 701 of 2017) [2020] KEELC 2879 (KLR)

Environment and Land Court
24 April 2020
COChristine Ochieng
2,669 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 landowner in Kajiado lost 152 acres after a neighbour's illegal resurvey; the court ordered the register rectified and boundaries restored to original beacons.

What this practically means

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Executive summary

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This was an undefended suit in which the Plaintiff sought a declaration of ownership of land parcel Kajiado/Loodariak/159 measuring 86 hectares, a permanent injunction against the Defendant, an order for the District Land Surveyor to re-establish boundaries, and general damages for trespass. The Plaintiff acquired the suit land in 2014 through an exchange agreement with the administrators of the estate of Loloshoo Ole Dagitus pursuant to succession proceedings, and a title deed issued to him on 30th April 2014. The Defendant, owner of the adjoining parcel Kajiado/Loodariak/160, had previously obtained Land Disputes Tribunal orders allowing him to stay on the suit land, which were quashed on judicial review by the Machakos High Court with prohibition orders against him. The court heard two witnesses: the Plaintiff and a licensed surveyor, who established through resurvey reports that the Defendant had encroached on the Plaintiff's land, creating a deficit of 152 acres. The surveyor showed that the Defendant resurveyed his land without using original beacons, contrary to Regulation 50 of the Survey Regulations, and created a new parcel (Kajiado/Loodariak/22520) inside the Plaintiff's land. Relying on sections 79 and 80 of the Land Registration Act and applying the High Court decision in Francis Nyauma Obare v Maina Marwanga Omwamire, the court found encroachment proved on a balance of probability and ordered rectification of the register. Judgment was entered for the Plaintiff with a declaration of ownership, a permanent injunction, and directions to the District Land Surveyor Kajiado to re-establish boundaries based on the original demarcation and Area List, with costs to the Plaintiff and a 90-day stay of execution due to the COVID-19 pandemic.

Key legal issues

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01

Whether the Defendant encroached on the Plaintiff's land

Holding

The court found the Defendant had encroached on the Plaintiff's land based on the private surveyor's report showing a deficit of 152 acres occupied by the Defendant

Reasoning

The Plaintiff was the undisputed registered owner of Kajiado/Loodariak/159 since 30th April 2014, having acquired it through an exchange agreement with the administrators of Loloshoo Ole Dagitus's estate. The Defendant owned the adjoining parcel Kajiado/Loodariak/160. The independent surveyor established that the Defendant resurveyed his land, created a new parcel (Kajiado/Loodariak/22520) inside the Plaintiff's land, and acquired a bigger area while the Plaintiff's acreage drastically reduced, leaving a deficit of 152 acres.

p. 3
02

Whether the register should be rectified

Holding

The court found it necessary to order rectification of the register in respect of both parcels so that they correspond with their respective title deeds and the original adjudication measurements

Reasoning

Relying on sections 79 and 80 of the Land Registration Act permitting rectification where a registration was obtained by fraud or mistake, and associating itself with Francis Nyauma Obare & 3 others v Maina Marwanga Omwamire, the court held that the Defendant's resurvey neglected established beacons and produced a new title based on illegal boundaries. Rectification was warranted to restore the parcels to their original demarcation measurements per the Area List.

p. 5

Legal principles established

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  • A proprietor who undertakes a resurvey neglecting established beacons and creating a new parcel based on illegal boundaries justifies rectification of the register under sections 79 and 80 of the Land Registration Act
  • A resurvey must be done in accordance with Regulation 50 of the Survey Regulations, using original beacons and re-establishing missing beacons in their original positions

Court orders

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  1. 1.A Declaration issued that the Plaintiff is the registered owner of the suit property Kajiado/Loodariak/159 measuring 86 Hectares
  2. 2.A permanent injunction restraining the Defendant by himself or through his servants, agents or any other person claiming under him from entering, trespassing and or interfering with the suit property Kajiado/Loodariak/159
  3. 3.The District Land Surveyor Kajiado directed to visit the affected lands and establish and/or re-establish the boundaries for suit property Kajiado/Loodariak/159 measuring 86 Hectares based on the original boundaries during demarcation and in the Area List
  4. 4.Costs of the suit awarded to the Plaintiff
  5. 5.90 days stay of execution granted due to the COVID-19 Pandemic

Authorities

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Legislation

  • Land Registration ActSection 79(1)(a)(b)(c)(d)
  • Land Registration ActSection 80(1) and (2)
  • Survey ActRegulation 50 of the Survey Regulations
  • Land Disputes Act, No. 18 of 1990Section 3(1)

Cases cited (1)

  • Francis Nyauma Obare & 3 others v Maina Marwanga Omwamire & another [2017] eKLR
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; Land Registration Act (sections 79 and 80)

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, "Machoge v Tauta (Environment & Land Case 701 of 2017) [2020] KEELC 2879 (KLR)", Case Analysis (2020). Environment & Land Case 701 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2879/eng@2020-04-24

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