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ELCOtherMurang'a ELC Case (originally filed at Nyeri High Court) - plaint dated 21/9/2012· [2021] KEELC 2005 (KLR)

Esther Njeri Ndungu & 2 others v District Land Surveyor & 5 others [2021] KEELC 2005 (KLR)

Environment and Land Court
15 September 2021
JKJ G Kemei
1,983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Murang'a Land Court confirmed 1.53 acres had been encroached, ordered the boundary fixed and the land map corrected after the plaintiffs' case was dismissed for non-attendance.

What this practically means

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Executive summary

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This was an Environment and Land Court decision at Murang'a (J G Kemei, J) delivered online on 15 September 2021 in a boundary dispute over parcels LOC.4/NAARO/1460-1464 (originally LOC.4/NAARO/433), in a suit transferred from the Nyeri High Court. The Plaintiffs had sought a prohibitory order and permanent injunction against the Defendants from dealing with the suit land, but their case was dismissed on 22 June 2021 for want of prosecution/non-attendance despite service. The 3rd Defendant's unopposed counterclaim, seeking establishment of the boundary between parcels LOC.4/NAARO/865, 866 and the former parcel 433 and amendment of the Registry Index Map so that 0.6145 hectares (1.53 acres) be returned to parcels 865 and 866, proceeded to hearing. Three defence witnesses testified, including the Murang'a County Land Registrar (DW3) as an expert who produced reports of site visits conducted in the presence of all affected parties, recommending realignment of the boundary per the surveyor's report. The court applied sections 16-19 and 86 of the Land Registration Act and section 107 of the Evidence Act, held the counterclaim proved on a balance of probabilities, entered judgment for the 3rd Defendant, ordered the boundary established on the ground and the RIM amended per the Registrar's and surveyor's reports, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the 3rd Defendant proved its counter claim for boundary determination and amendment of the RIM

Holding

Counter claim allowed; uncontroverted evidence including the Land Registrar's reports established encroachment of 0.6145 hectares by the Plaintiffs

Reasoning

The counter claim was unopposed and supported by three witnesses, including the County Land Registrar (DW3) as an expert who compiled reports in the presence of all affected parties, in compliance with sections 16-19 of the Land Registration Act. The reports established encroachment of 0.6145 hectares (1.53 acres). The court, empowered by section 86 of the LRA, adopted the Registrar's opinion and ordered the boundary be established on the ground and the RIM amended.

p. 3
02

Applicable statutory regime for boundary disputes under the Land Registration Act

Holding

Sections 16-19 of the LRA govern rectification of boundaries and fixed boundaries; disputes must be determined in accordance with section 18 before court entertains them

Reasoning

The court set out sections 16-19 of the Land Registration Act, covering power to alter boundary lines, approval for further surveys, boundaries, and fixed boundaries. Section 18(2) bars the court from entertaining boundary disputes unless boundaries have been determined in accordance with the section, and the Registrar may receive evidence as to boundaries where they are not fixed. The Registrar's site visits and reports satisfied this regime.

p. 3

Legal principles established

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  • The burden of proof in civil matters is on a balance of probabilities and he who alleges must prove
  • Courts should have boundary disputes over registered land determined in accordance with sections 16-19 of the Land Registration Act, and may consider the Land Registrar's opinion under section 86

Court orders

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  1. 1.The Plaintiffs' suit stood dismissed on 22/6/2021 for want of prosecution/non attendance
  2. 2.The proper boundary between parcels Loc.4/Naaro/865, 866 and 433 (now parcels 1460-1464) be established on the ground and the Registry Index Map be amended so that the 0.6145 hectares or 1.53 acres belonging to parcels 865 and 866 be returned thereto
  3. 3.The Land Registrar to amend the boundaries in line with the Land Registrar's and surveyor's reports dated 15/3/2019, 25/8/16, 30/11/2018 and 19/4/12, with the RIM amended to reflect the ground position and affected areas rectified
  4. 4.Each party to bear their costs

Authorities

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Legislation

  • Land Registration Actsection 19(1)
  • Land Registration Actsection 20
  • Land Registration Actsections 16-19, 86
  • Evidence Actsection 107
  • Survey ActCap. 299

Cases cited (2)

  • Fredrick Wainaina Njoroge & 2 other vs Stephen Kariuki Ndungu & 2 others
    [2021] eKLR
  • Azzuri Limited v Pink Properties Limited
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction under the Land Registration Act (sections 16-19, 86); suit originally filed in the Nyeri High Court before establishment of the ELC

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Esther Njeri Ndungu & 2 others v District Land Surveyor & 5 others [2021] KEELC 2005 (KLR)", Case Analysis (2021). Murang'a ELC Case (originally filed at Nyeri High Court) - plaint dated 21/9/2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2005/eng@2021-09-15

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