Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedCivil Case No. 160 of 2017· [2021] KEELC 4071 (KLR)

David Juma Agunda v Charles Juma [2021] KEELC 4071 (KLR)

Environment and Land Court
10 March 2021
4,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

A landowner suing over a boundary in Kenya must first fix the Registry Index Map and bring survey evidence, or the court will dismiss the case and award costs against them.

What this practically means

#

Executive summary

#
The plaintiff sued the defendant alleging trespass and encroachment onto parcel BUKHAYO/BUGENGI/8704 and sought a permanent injunction and demolition of structures on the alleged common boundary. The defendant denied the claim, counterclaimed for restoration of the boundaries of his parcel BUKHAYO/BUGENGI/7526 and a restraint against the plaintiff's trespass. By consent, the Busia County Land Registrar and Surveyor visited the parcels. Both experts concluded that the two parcels do not share a common boundary: parcel 8704 was created by subdivision of parcel 7529 (registered in the plaintiff's name) and the subdivision had not been amended in the Registry Index Map; parcels 7754, 7527 and 7528 lie between the two suit parcels. Boundary marks established during the visit were defaced by the plaintiff and others, halting the exercise. The court found the plaintiff produced no alternative survey report, did not contest the mutation, and his evidence, together with that of PW4 and PW5 (including the alleged lusiola tree boundary), was uncorroborated and could not prove the alleged 20-foot encroachment by the defendant. The court held that boundary determination is the mandate of the Land Registrar and Surveyor under Section 18 of the Land Registration Act, and that the plaintiff ought first to have sought amendment of the RIM, rendering his suit premature. The plaintiff's suit was dismissed; an injunction was granted in favour of the defendant in terms of prayer (c) of the counterclaim; parties were directed to respect the boundaries as shown on 26th June 2018; and the defendant was awarded costs.

Key legal issues

#
01

Whether the two suit parcels share a common boundary

Holding

They do not; parcel 8704 was created by subdivision of parcel 7529 and is separated from parcel 7526 by other plots (7754, 7527 and 7528).

Reasoning

The Land Registrar and County Surveyor, pursuant to a consent order, visited the site and produced reports confirming the parcels do not abut. The mutation subdividing parcel 7529, which the plaintiff did not contest, placed parcel 8704 between parcels 7754 and 7528, with an access road separating the new plots from plots fronting the highway. The plaintiff produced no alternative survey report.

p. 4
02

Whether the Defendant encroached on the Plaintiff's land

Holding

The alleged encroachment was not proved; the plaintiff had no corroborating evidence for the alleged 20 feet encroachment.

Reasoning

The plaintiff relied on his own testimony and that of PW4 and PW5. PW4's evidence was of no value, and PW5's claim that a lusiola tree marked the boundary was unsupported by any survey report. The plaintiff did not contest the mutation or produce an alternative survey report. The parties had already been shown their boundaries by the Registrar.

p. 4
03

Whether the Plaintiff encroached on the Defendant's land

Holding

The court granted a perpetual restraint in terms of prayer (c) of the counterclaim to prevent any repeat of interference, the prayer on nappier grass having been spent.

Reasoning

The Defendant complained the Plaintiff had planted nappier grass on his parcel but stopped after the Surveyor and DO intervened, rendering that prayer spent. To guard against a possible repeat of interference, the court issued an order in terms of prayer (c) of the counterclaim restraining the Plaintiff from trespassing or encroaching on parcel 7526.

p. 5
04

Jurisdiction over boundary disputes

Holding

The Land Registrar and Surveyor have the mandate under Section 18 of the Land Registration Act to determine boundary disputes, and the suit was prematurely filed before amendment of the RIM.

Reasoning

Section 18 of the Land Registration Act empowers the Registrar, working with the Survey Office under the Survey Act, to determine boundary disputes. The dispute had been handled by the Registrar before escalation to court. The plaintiff ought to have pursued amendment of the RIM to include the subdivision numbers before registering his complaint, making the suit premature.

p. 4

Legal principles established

#
  • The Land Registrar and the Surveyor have the statutory mandate to deal with boundary issues of registered land, and a boundary dispute suit is premature where the party has not pursued the amendment of the Registry Index Map
  • A party alleging encroachment must corroborate the claim with survey evidence; reliance on informal boundary markers without an alternative survey report fails

Court orders

#
  1. 1.The plaintiff's suit is dismissed for being premature and lacking in merit
  2. 2.The Plaintiff, his family, agents, servants and any other person claiming through him be and are hereby restrained from trespassing and encroaching onto the defendant's land parcel number BUKHAYO/BUGENGI/7526
  3. 3.Parties to respect the boundaries as shown to them on 26th June 2018 by the Land Registrar and the Surveyor
  4. 4.The Defendant is awarded costs of the suit

Authorities

#

Legislation

  • Land Registration ActSection 18
  • Survey ActCap 299

Cases cited (3)

  • Azzuri Limited vs. Pink Properties
    (2018) eKLR
  • Sangale Ole Langas vs. Stephen Mishish & Another
    (2018) eKLR
  • Jane Njeri Arthur vs. Joseph Mwaura Njoroge
    (2019) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - court determined title and boundary dispute over registered land; Section 18 of the Land Registration Act discussed

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "David Juma Agunda v Charles Juma [2021] KEELC 4071 (KLR)", Case Analysis (2021). Civil Case No. 160 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4071/eng@2021-03-10

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