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ELCOther· [2021] KEELC 635 (KLR)

Wilfred Omwansa & 5 others v Joyce Bonareri Mogaka & another [2021] KEELC 635 (KLR)

Environment and Land Court
30 November 2021
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenyan courts cannot decide land boundary disputes until the Land Registrar first fixes the boundaries; ground measurements beat title documents.

What this practically means

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Executive summary

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The Plaintiffs sued by a Plaint dated 10/07/2014 seeking a permanent injunction restraining the Defendants from interfering with Plots Mwongori Settlement Scheme/152, 201, 334, 468, 469 and 541, a declaration that they are the lawful registered owners, plus costs and interest. The 1st Defendant, registered proprietor of the neighbouring Parcel 467, denied the claim and asserted the Plaintiffs occupied more land on the ground than their titles showed. A temporary injunction issued on 30/10/2014. The court directed the Land Registrar, Nyamira and the County Surveyor to visit the locus and establish boundaries, a process delayed by hostility on the ground and non-appearance of officials. The resulting Report of 02/11/2021 found all parcels exist on the ground, that Parcel 467 exists with its dimensions intact but has been encroached upon by Parcels 152 and 541, and beacons were placed. The 1st Plaintiff disputed the Report's genuineness and raised objections including non-joinder of representatives of deceased Plaintiffs; the court rejected these, holding measurement was exclusively the officers' task, that deaths cannot be inferred from the bar and no substitution was ever sought, and that the parties had acquiesced that this was a boundary dispute. Invoking Section 18(2) of the Land Registration Act, 2012 (a replica of Section 21(4) of the repealed Registered Land Act), the court held boundary disputes fall within the Land Registrar's purview. It adopted the Report as its judgment, directed its implementation forthwith, and ordered compliance with Section 20(1) on maintaining boundary features, on pain of the penalties of Section 21(1). The Plaintiffs' injunction and declaration were not granted; no costs order appears.

Key legal issues

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01

Whether the court could entertain the boundary dispute

Holding

It could not; under Section 18(2) of the Land Registration Act, 2012 boundary disputes must first be determined by the Land Registrar

Reasoning

The court noted the parties had acquiesced that this was a boundary dispute, an issue raised in the Defence filed on 04/09/14 and never answered by a Reply. Section 18(2) ousts the court's jurisdiction until boundaries are determined under that section. The equivalent provision in the repealed Registered Land Act (Section 21(4)) was retained deliberately because the Land Registrar has technical expertise the court lacks.

p. 3
02

Effect of the Land Registrar's Report

Holding

The Report of the Land Registrar dated 02/11/2021 was adopted as the judgment of the court and directed to be implemented forthwith

Reasoning

The Land Registrar and County Surveyor established that all the parcels exist on the ground, that Parcel 467 exists with its dimensions intact but encroached upon by parcels 152 and 541, and beacons were placed on the ground. The court found the Report had finally disposed of the matter and adopted it as judgment.

p. 3
03

Complaints of the 1st Plaintiff against the survey exercise and death of co-Plaintiffs

Holding

The complaints were rejected; the plaintiffs' role at the locus was only to witness, death of parties cannot be inferred from the bar, and no substitution was ever sought

Reasoning

The court held measurement was purely the business of the Land Registrar and County Surveyor. The alleged deaths of the 4th and 5th Plaintiffs, reported on 16/10/18, were never substantiated and no substitution was sought; if beneficiaries slept on their rights they could not raise the issue only because the Report did not favour them. An adverse possession claim was also absent from the pleadings.

p. 2

Legal principles established

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  • A court shall not entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with Section 18 of the Land Registration Act, 2012
  • Resolution of boundary disputes lies within the purview of the Land Registrar, who has the technical expertise the court lacks
  • Where ground measurements differ from the paper acreage, what is on the ground prevails
  • Death of a party cannot be inferred from statements made from the bar or unsubstantiated sworn submissions

Court orders

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  1. 1.Adopted the Land Registrar's Report dated 02/11/2021 and gave a determination based on the same as the Judgment of the court
  2. 2.Directed that the Report be implemented forthwith
  3. 3.Directed the parties to comply with Section 20(1) of the Land Registration Act, 2012 by maintaining in order any features demarcating the boundaries of the adjoining parcels, failing which the perpetrator faces Section 21(1) consequences (imprisonment up to two years or a fine)

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSection 20(1)
  • Land Registration ActSection 21(1)
  • Registered Land Act (Repealed)Section 21(1)-(5)
  • Civil Procedure Act/RulesOrder 11

Cases cited (1)

  • Andrew Marigwa =Vrs= Josphat Ondieki Kebati
    ELC NO. 1163 of 2016
Jurisdiction invoked
Original jurisdiction under the Land Registration Act, 2012; the court invoked Section 18(2) of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wilfred Omwansa & 5 others v Joyce Bonareri Mogaka & another [2021] KEELC 635 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/635/eng@2021-11-30

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