Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2021] KEELC 1193 (KLR)
The bottom line
#In Kenya, boundary disputes over registered land must first go to the Land Registrar before a court can rule, and an uncontested Registrar's report can become the court's judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could determine the boundary dispute itself
No. Section 18(2) of the Land Registration Act, 2012 bars the court from entertaining boundary disputes unless boundaries have been determined under that section; the dispute was properly referred to the Land Registrar, whose report was adopted as the judgment on prayer (a).
The court invoked Section 18(2) of the Land Registration Act, 2012, which replicates Section 21(4) of the repealed Registered Land Act (Cap 300). Both provisions vest boundary determination in the Land Registrar, who holds the records and has the technical capacity to establish and fix boundaries. The Registrar and County Surveyor visited the site in the presence of both parties and filed an uncontested report, which the court adopted as its judgment on the boundary question.
The position of the disputed 9-metre access road
The road was created by the Defendant excavating sections of the plaintiffs' parcels and was diverted from its true position as per the RIM; it should have been excavated as per the RIM.
The joint report of the Land Registrar and County Surveyor, compiled after both parties were given audience and left uncontested, established that the parcels are correctly shown on RIM Sheet 6, that the RIM does not show a road in the disputed area, and that ground measurements showed the 9-metre road was carved out of the plaintiffs' plots by diverting the service road from its true RIM position. The court adopted these findings verbatim as its determination.
Legal principles established
#- A court cannot entertain a boundary dispute over registered land unless the boundaries have first been determined in accordance with Section 18(2) of the Land Registration Act, 2012; resolution of boundary disputes lies with the Land Registrar.
- The Land Registrar possesses technical expertise in fixing boundaries that the court lacks.
Court orders
#- 1.Adoption of the Report of the Land Registrar, Nyamira dated 26/03/2021 as the Judgment of the court in terms of Prayer (a) of the Amended Plaint dated 21/07/2014
- 2.Determination of the boundary findings: both parcels exist on the ground bordering each other; the 9-metre access road was created by the Respondent excavating sections of Plot Nos. WEST MUGIRANGO/SIAMANI/1912 & 1561; the road should have been excavated as per the RIM; the RIM does not show a road in the disputed area
- 3.Direction that the determination be implemented forthwith
- 4.Direction that parties comply with Section 20(1) of the Land Registration Act, 2012 by maintaining in order any feature demarcating the boundaries, failing which the perpetrator faces Section 21(1) penalties of imprisonment up to two years or a fine up to Kshs. 200,000 or both
- 5.Invitation to parties to file submissions on prayers (b) and (c): Plaintiff 14 days, Defendant 14 days thereafter
- Jurisdiction invoked
- Land Registration Act, 2012, Section 18(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2021] KEELC 1193 (KLR)", Case Analysis (2021). ELC Suit filed 02/07/2014 (Nyamira). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1193/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.