Gladys Muthoni Mung’ura v Julius Ngari Njagi [2021] KEELC 4326 (KLR)

Environment and Land Court of Kenya

19 February 2021

JOJ. O. Olola

1,916 words in judgment

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The bottom line

The Malindi Environment and Land Court dismissed a landowner's appeal because she never actually filed a proper boundary dispute application with the Land Registrar.

What this practically means

Executive summary

This was a first appeal to the Environment and Land Court at Malindi against the Ruling of the Land Registrar, Kilifi dated 3rd May 2019 in a dispute over land portions Gede/Mijomboni/1583 and Gede/Mijomboni/1582. The Appellant, Gladys Muthoni Mung'ura, had reported what she termed a boundary dispute by letter dated 23rd January 2019, seeking to have the road serving her plot excised. Following a site visit, the Registrar found that the road on the map did not exist on the ground, an existing community road did not appear on the map, the plot had encroached on the existing road by approximately 0.5 metres, and plot sizes on the ground were smaller than on the titles. She directed the parties to apply through the Chief to the Surveyor to change the common boundaries to adopt the existing road, with liberty to appeal to the High Court within 90 days. The Appellant faulted the Registrar for failing to fix the boundaries, for failing to treat the road on the map as a public thoroughfare, for failing to direct rectification of acreages, and for interfering with land belonging to a deceased person's estate. The Court, per J.O. Olola J, applying Okeno v Republic and Peters v Sunday Post, found the letter of 23rd January 2019 absent from the record and held that what went before the Registrar was an application to excise a road, not a boundary dispute under Sections 18(1) and 19(1) of the Land Registration Act. The Official Map and Surveyor's Report were not in the Record, and the Appellant's own survey documents were not before the site visit. The material was scanty and insufficient; the Registrar could not be faulted for not fixing boundaries or rectifying the register where no such application existed. The appeal was dismissed with costs to the Respondent.

Key legal issues

Nature of the dispute placed before the Land Registrar

Holding

The matter before the Registrar was an application to excise a road serving the Appellant's plot, not a boundary dispute under Sections 18(1) and 19(1) of the Land Registration Act

Reasoning

The letter of 23rd January 2019 invoking a boundary dispute was not on the record. The Registrar's Report, the only official record, described the application as one to excise the road serving the plot. Absent that letter, the Respondent's contention that the matter was not a boundary dispute could not be disputed. The findings on the road on the ground versus the road on the map confirm this characterisation.

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Duty of a first appellate court and sufficiency of the record

Holding

The appeal failed because the material placed before the Court was scanty and insufficient, and the Registrar could not be faulted for not determining matters not placed before her

Reasoning

Guided by Okeno v Republic, Peters v Sunday Post and Gitobu Imanyara, the Court was obliged to re-evaluate the evidence. However, neither the Official Map nor the Surveyor's Report referred to in the Registrar's Report were in the Record of Appeal. The field diagram and survey report annexed by the Appellant were not mentioned in the Registrar's Report, and the Surveyor was not recorded as present at the site visit, so the Court could not rely on them to discount the Registrar's findings.

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Legal principles established

On a first appeal, the court must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
A Land Registrar cannot be faulted for failing to fix boundaries or rectify the register where no such application was before her
An appellate court will interfere with findings below only where there is no evidence to support a conclusion or where the trial judge plainly went wrong

Court orders

1.The Appeal is dismissed (the Appeal fails)
2.The Respondent shall have the costs of the Appeal

Authorities

Legislation

Land Registration Act No. 3 of 2012Section 18(1)
Land Registration Act No. 3 of 2012Section 19(1)
Land Registration Act No. 3 of 2012Section 79(1)(c)

Cases cited (4)

Okeno –vs- Republic
(1972) EA 32
Pandya –vs- Republic
(1957) EA 336
Gitobu Imanyara & 2 Others –vs- Attorney General
(2016) eKLR
Peters –vs- Sunday Post Ltd
(1958) EA 424

On appeal from: Land Registrar Kilifi; Boundary dispute application dated 23rd January 2019 in respect of Gede/Mijomboni/1583 and Gede/Mijomboni/1582
Jurisdiction invoked: Appeal from the Land Registrar's decision to the High Court as provided in the Registrar's determination, in respect of a boundary matter under Sections 18(1) and 19(1) of the Land Registration Act No. 3 of 2012

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Gladys Muthoni Mung’ura v Julius Ngari Njagi [2021] KEELC 4326 (KLR)", Case Analysis (2021). Civil Appeal No 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4326/eng@2021-02-19

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