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ELCPartially AllowedAppeal from Tigania PM ELC No. 55 of 2019· [2021] KEELC 1086 (KLR)

Domisiano Maingi v Monicah Karegi Mwaura [2021] KEELC 1086 (KLR)

Environment and Land Court
10 November 2021
2,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts cannot decide land boundary disputes until the Land Registrar has first determined the boundaries, so filing early can get your case struck out.

What this practically means

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Executive summary

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Domisiano Maingi appealed against a ruling of Hon. G. Sogomo, Principal Magistrate, in Tigania PM ELC No. 55 of 2019 delivered on 11th March 2021, which allowed the respondent's application to adopt a sub-County surveyor's report and, ostensibly, allowed the plaint's prayers against him. The respondent had sued the appellant for forcefully fencing off Land Parcel Nyambene/Akithi 111/3657. The court had ordered a surveyor to fix boundaries; the resulting report showed encroachment by the appellant, who opposed adoption of the report on grounds including that it would give the respondent 0.64 Ha contrary to her claim of 0.08 Ha, and that the surveyor exceeded his mandate. C.K. Nzili, ELC Judge, allowing the appeal, held that the trial court erred: a defence was on record so summary judgment under Order 36 was unavailable; triable issues had been raised; the surveyor's report was contested and the surveyor never attended court for cross-examination; and expert evidence does not trump other evidence. Critically, the court held that under Sections 18(2) and 19(2) of the Land Registration Act 2012, a court cannot entertain a boundary dispute before the Land Registrar determines the boundary, and no such determination existed. The appeal was allowed, the lower court order reversed, and the suit struck out with costs for lack of jurisdiction, with costs of the appeal and the lower court granted to the appellant.

Key legal issues

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01

Jurisdiction over boundary disputes

Holding

The trial court lacked jurisdiction because the respondent rushed to court before obtaining a determination of the boundary by the Land Registrar as required by the Land Registration Act

Reasoning

Sections 18(2) and 19(2) of the Land Registration Act 2012 bar courts from entertaining boundary disputes unless the boundaries have been determined by the Land Registrar. There was no such report, so the court ought to have downed its tools once the boundary issue emerged, following George Kamau Macharia v Dexka Ltd and Lucy Agape Wayodi v Kenya National Highways Authority.

p. 3
02

Summary judgment and triable issues

Holding

The appellant had raised triable issues in his defence and replying affidavit entitling him to defend the suit on merits; summary judgment procedure under Order 36 was inapplicable since a defence had been filed and the claim was not founded on tenancy

Reasoning

Order 36 Rule 1(b) applies where the defendant has appeared but not filed a defence; here a defence was on record. The claim was for a permanent injunction, not based on tenancy, rent or mesne profits. The dispute over the surveyor's mandate and acreage raised bonafide triable issues requiring a full hearing.

p. 2
03

Evidentiary value of a surveyor's report

Holding

The surveyor's report was not conclusive; it was contested, the surveyor was not called for cross-examination, and expert evidence must be tested against other evidence

Reasoning

Both parties did not attend the scene visit, the report's legality was disputed, and the surveyor was never summoned to present or defend the report. Following Stephen Kinini Wangondu v The Ark Ltd, expert evidence is only part of the evidence and cannot be considered in vacuum.

p. 2

Legal principles established

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  • A court shall not entertain any action relating to a dispute as to boundaries of registered land unless the boundaries have first been determined by the Land Registrar under Section 18(2) and 19(2) of the Land Registration Act, 2012
  • Expert evidence is merely part of the evidence a court takes into account and does not trump all other evidence; it must be tested against known facts
  • A surveyor's report, without a report by the District Land Registrar, cannot be conclusive evidence taken exclusive of all other relevant evidence
  • The duty to determine a case on law and evidence rests with the court and cannot be surrendered to an expert witness

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Lower court order of 11th March 2021 reversed
  3. 3.Suit struck out with costs for lack of jurisdiction
  4. 4.Costs of the appeal and of the lower court granted to the appellant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 36 Rule 1(b) and sub-rule (2)
  • Land Registration ActSections 18(2), 19(2), 19, 86 and 87
  • Constitution of KenyaArticles 48, 49 and 159

Cases cited (7)

  • Selle –vs- Associated Motor Boat Co. Ltd [1969]
    [1969]
  • Continental Butchery Ltd. –vs- Samson Musilu Nthiwa
  • Stephen Kinini Wangondu –vs- The Ark Ltd. [2016] eKLR
    [2016] eKLR
  • Ali Mohammed Salim –vs- Faisal Hassan Ali [2014] eKLR
    [2014] eKLR
  • Azzuri Ltd.-vs- Pink Properties Ltd. [2017] eKLR
    [2017] eKLR
  • George Kamau Macharia –vs- Dexka Ltd [2019] eKLR
    [2019] eKLR
  • Lucy Agape Wayodi –vs- Kenya National Highways Authority & 2 Others [2019] eKLR
    [2019] eKLR
On appeal from
Principal Magistrate's Court, Tigania
Tigania PM ELC No. 55 of 2019
Jurisdiction invoked
First appeal from the Principal Magistrate's Court under the Environment and Land Court jurisdiction (Civil Procedure Act provisions invoked, including Sections 18(2) and 19(2) of the Land Registration Act 2012 on boundaries)

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, "Domisiano Maingi v Monicah Karegi Mwaura [2021] KEELC 1086 (KLR)", Case Analysis (2021). Appeal from Tigania PM ELC No. 55 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1086/eng@2021-11-10

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