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ELCPartially AllowedNot stated in judgment· [2021] KEELC 1081 (KLR)

Catholic Diocese of Meru & another v George Kaleria Muchena [2021] KEELC 1081 (KLR)

Environment and Land Court
10 November 2021
2,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a trespass suit, confirming boundary disputes on registered land must first go to the Land Registrar.

What this practically means

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Executive summary

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This is a first appeal from the lower court against a judgment in a trespass and encroachment suit. The respondent, suing through the Catholic Diocese of Meru, claimed the 1st appellant (a parish priest) and the 2nd appellant trespassed on Land Parcel No. Meru North Athinga/Athanja/5565 and damaged his property valued at Kshs. 91,800, and sought a permanent injunction. The trial court found trespass based on a surveyor's report. On appeal, the ELC at Meru (C.K. Nzili, ELC Judge) re-evaluated the evidence under Section 78 of the Civil Procedure Act. It held the 1st appellant was wrongly enjoined: the allegedly encroaching land was registered to Antuanu Church Catholic Diocese, and following authority, a church must be sued through its registered trustees under Cap 164; the trial court erred in treating misjoinder as non-fatal. It further held a decree could not issue against the 2nd appellant since the land she occupied was registered in her deceased husband's name and no legal representative had been joined. Critically, the court found the dispute was a boundary dispute reserved exclusively for the Land Registrar under Sections 18 and 19 of the Land Registration Act, and the inconclusive surveyor's report based on a Provisional Registry Index Map could not support a conclusive determination. The grounds on evidence and recusal failed. The appeal was allowed with costs and the lower court suit dismissed with costs.

Key legal issues

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01

Misjoinder of the 1st appellant

Holding

The 1st appellant was wrongly enjoined; the suit land was registered in the name of Antuanu Church Catholic Diocese, not him, and misjoinder in these circumstances was fatal because the registered owner was absent

Reasoning

The 1st appellant was a parish priest sued personally yet the alleged encroaching land was registered to Antuanu Church Catholic Diocese. Following the Catholic Diocese of Muranga case, a church must be sued through registered trustees under Cap 164. Section 26(1) of the Land Registration Act makes the register prima facie evidence of ownership. The trial court erred in holding misjoinder non-fatal and proceeding to condemn a party with no nexus to the registered proprietor.

p. 2
02

Suit against 2nd appellant though land registered in deceased husband's name

Holding

A decree could not issue against a deceased person without joining a legal representative; the trial court erred in not determining the issue

Reasoning

The 2nd appellant pleaded the land was registered in her deceased husband Ringera's name and she was not his legal representative. The trial court ought to have determined this issue rather than disregard it. Citing Munywoki Musuva Ngao v Mutua Mbinda, the court noted a suit should be struck out where property is registered in a deceased person's name.

p. 3
03

Jurisdiction over boundary dispute

Holding

The lower court lacked jurisdiction because the dispute was a boundary dispute reserved exclusively for the Land Registrar under Sections 18 and 19 of the Land Registration Act

Reasoning

The plaint alleged trespass, but the respondent admitted he had not taken the dispute to the Land Registrar, whose mandate under Section 18(1) is exclusive. The surveyor's report relied on a Provisional Registry Index Map, which is not conclusive, and itself recommended further input from the Adjudication & Settlement Officer. The trial court therefore made conclusive findings on rights without jurisdiction.

p. 3
04

Sufficiency of surveyor's report

Holding

The report based on a Provisional Registry Index Map was inconclusive and could not ground a conclusive determination of legal rights

Reasoning

The surveyor's report dated 14.12.2020, which the trial court relied on, was based on a Provisional Registry Index Map, which is not conclusive under the Surveyors Act. It recommended that the District Land Adjudication & Settlement Officer provide another report. Instead of seeking a conclusive report the trial court made a conclusive determination of the parties' legal rights.

p. 3
05

Standard of first appellate review

Holding

The first appellate court must re-evaluate all evidence afresh while bearing in mind it did not see or hear the witnesses

Reasoning

Section 78 of the Civil Procedure Act obliges the first appellate court to examine both law and facts and subject the whole evidence to fresh and exhaustive scrutiny. Following Peter M. Kariuki v Attorney General, the court must draw its own conclusions to satisfy itself that the trial court's conclusions were consistent with the evidence tendered.

p. 2

Legal principles established

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  • A church can only be sued through its registered trustees under the Trustees (Perpetual Succession) Act Cap 164
  • Boundary disputes pertaining to registered land must first be determined by the Land Registrar; courts lack jurisdiction to entertain them in the first instance
  • A first appellate court must subject the whole evidence to a fresh and exhaustive scrutiny

Court orders

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  1. 1.The appeal is allowed with costs
  2. 2.The lower court suit is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Land Registration Act 2012Section 18(1) and 18(2)
  • Land Registration Act 2012Section 19
  • Land Registration Act 2012Section 26(1)
  • Land Registration Act 2012Sections 79(3)(G), 80, 86 and 91(G)
  • Trustees (Perpetual Succession) Act Cap 164Not specified
  • Surveyors ActNot specified
  • Civil Procedure RulesOrder 1 rule 9; Order 1 rule 2

Cases cited (7)

  • Peter M. Kariuki –vs- Attorney General
  • Registered Trustees of the Catholic Diocese of Muranga & Another –vs- James Mwangi & 2 Others
    [2014] eKLR
  • Jane Nyambua Joshua –vs- Apostolic Faith Church
  • Munywoki Musuva Ngao –vs- Mutua Mbinda & Another
    [2019] eKLR
  • Azzuri Ltd –vs- Pink Properties Ltd
    [2018] eKLR
  • George Kamau Macharia –vs- Dexka Ltd.
    [2019] eKLR
  • Estate Sonrisa Ltd. & Another –vs- Samuel Kamau Macharia & 2 Others
    [2020] eKLR
On appeal from
Magistrates' Court (lower court)
Not stated in judgment
Jurisdiction invoked
Section 78 of the Civil Procedure Act (first appellate jurisdiction)

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, "Catholic Diocese of Meru & another v George Kaleria Muchena [2021] KEELC 1081 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1081/eng@2021-11-10

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