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ELCStruck OutELC Appeal No. 03 of 2019· [2021] KEELC 3202 (KLR)

Elijah Mwau Lelu v Daniel Kiawa Ndivo [2021] KEELC 3202 (KLR)

Environment and Land Court
28 May 2021
1,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts will not decide land boundary disputes until the Land Registrar has first officially demarcated the boundary between the properties.

What this practically means

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Executive summary

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The appellant appealed to the Environment and Land Court at Makueni against the judgment of Hon. G. M. Mutiso, Principal Magistrate, in Makindu PMCC No. 53 of 2010, in which the trial court struck out the suit, holding that under Section 18(2) of the Land Registration Act, 2012 it could not entertain a boundary dispute over registered land unless the boundary had first been determined under that provision. The parties are registered owners of adjoining plots, LR. No. Makueni/Kakutha/637 (appellant, 6.13 hectares) and LR. No. Makueni/Kakutha/1349 (respondent, 7.26 hectares). A District Surveyor's reports of 2014 and 2017 revealed a very big discrepancy between the map and the ground, with the disputed area falling within the appellant's parcel, and differing contentions on where the boundary ran. The court found that the Land Registrar's ruling of 5th February 2010 was inconclusive as to the official boundary because there was no public record supporting it, and that the Land Registrar Makueni County must first demarcate the boundaries under Sections 19(1) and 19(2) of the Land Registration Act before the court could hear evidence on the dispute under Sections 18(1) and 18(2). Finding no sufficient cause to interfere with the trial court's judgment of 13th July 2018, the court struck out the appeal with no order as to costs.

Key legal issues

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01

Jurisdiction of the court over boundary disputes of registered land

Holding

The trial court was right to decline jurisdiction because the boundary had not been determined in accordance with Section 18 of the Land Registration Act; the Land Registrar's ruling was inconclusive as there was no public record supporting it

Reasoning

The District Surveyor's reports disclosed a very big discrepancy between the map and the ground, and the Land Registrar's 2010 ruling did not conclusively demarcate the official boundary. The court held the Land Registrar, as custodian of official land documentation, must define the boundary under Sections 19(1) and 19(2) before the court can hear the dispute under Sections 18(1) and 18(2).

p. 2

Legal principles established

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  • Before a boundary dispute between adjoining registered parcels can be adjudicated by the court, the Land Registrar must first define the official boundary under Sections 18 and 19 of the Land Registration Act, 2012

Court orders

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  1. 1.The appeal is struck out with no order as to costs
  2. 2.The Land Registrar Makueni County to demarcate the boundaries as required under Sections 19(1) and 19(2) of the Land Registration Act, 2012

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSections 18(1) and 18(2)
  • Land Registration ActSections 19(1) and 19(2)

Cases cited (2)

  • Selle and Anor -Vs- Associated Motor Boat Company Ltd and Others
    [1968] 1 EA 123 (CAZ)
  • Abdul Hameed Saif v. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
On appeal from
Principal Magistrate's Court, Makindu
Makindu PMCC No. 53 of 2010
Jurisdiction invoked
First appeal to the Environment and Land Court under the ELC Act against the judgment of the Principal Magistrate's Court

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, "Elijah Mwau Lelu v Daniel Kiawa Ndivo [2021] KEELC 3202 (KLR)", Case Analysis (2021). ELC Appeal No. 03 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3202/eng@2021-05-28

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