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ELCOther· [2022] KEELC 1021 (KLR)

Teresiah Wanjiku Mutinda & another v Richard Ben Kasaa Musembi [2022] KEELC 1021 (KLR)

Environment and Land Court
9 March 2022
CMC.G. Mbogo
814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Land Registrar's boundary determination is conclusive if unchallenged, and merely attending the survey counts as being heard.

What this practically means

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Executive summary

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This Environment and Land Court decision resolves a boundary dispute between the Plaintiffs and the Defendant over Parcel Nos. Kibauni/Kavumbu/643 and Kibauni/Kavumbu/644, pursuant to the Court's earlier order of 29th May, 2020 directing the Land Registrar Makueni, C.K. Nyakundi, to determine the boundary. The Registrar's report, dated 22nd July, 2020 and filed on 23rd July, 2020, recorded a site visit attended by the 1st Plaintiff, surveyors, the local administration and security personnel. The survey established that Parcel 644 measures 5.13 hectares, Parcel 643 measures 3.92 hectares, with 1.18 hectares in dispute, and the Registrar reinstated the boundary in accordance with the map. In cross-examination, the Registrar confirmed she adopted the surveyors' findings and that boundaries were remarked on the ground. The Plaintiffs submitted that the Registrar failed to discharge her mandate under Section 18(2) of the Land Registration Act and denied them a fair hearing, relying on Re Estate of Said Abdalla (Deceased). The Defendant urged adoption of the report as the judgment of the Court. The Court held that the duty to determine boundary disputes lies with the Land Registrar under Sections 18 and 19, that the 1st Plaintiff's unchallenged presence at the exercise satisfied the opportunity-to-be-heard requirement, and that no material impugned the report. The Court disregarded boundary line KL, adopted boundary line CG per Sheet No. 13 of the Registry Index Map annexed to the report, and ordered each party to bear its own costs. Judgment delivered via email on 9th March, 2022.

Key legal issues

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01

Whether the Land Registrar accorded the Plaintiffs a fair hearing

Holding

The Plaintiffs were heard; the 1st Plaintiff attended the field exercise and no omitted evidence was demonstrated

Reasoning

The report showed the Registrar visited the site with surveyors, administrators and security, and that the 1st Plaintiff was present. Her presence was unchallenged, and no record was produced of any evidence she presented, personally or through counsel, that had been left out of consideration. Presence at the exercise satisfied the opportunity-to-be-heard requirement in Section 87(1)(a) of the Act.

p. 2
02

The evidentiary weight and conclusiveness of the Land Registrar's report

Holding

The report is conclusive and binds the parties; boundary line CG is adopted in place of KL

Reasoning

The Registrar cross-examined by the Plaintiffs' counsel stood by her report, which matched the surveyors' supervised findings and reinstated boundaries per the map. The Plaintiffs did not demonstrate impropriety or illegality. The Court therefore adopted the boundary fixed by the Registrar pursuant to the Registry Index Map tracing annexed to her report.

p. 2

Legal principles established

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  • The duty to determine boundary disputes and to fix boundaries is vested with the Land Registrar under Sections 18 and 19 of the Land Registration Act, 2012
  • Where the Registrar's report is unchallenged and its maker gives unshaken oral evidence, the parties are bound by its findings

Court orders

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  1. 1.The Court disregards boundary line KL
  2. 2.Boundary line CG shown in the tracing under Sheet No. 13 of the Registry Index Map annexed to the Land Registrar's Report of 22nd July, 2020 is adopted
  3. 3.Each party shall bear his own costs

Authorities

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Legislation

  • Land Registration ActSection 18(2), 18(3)
  • Land Registration ActSection 19, 19(2)
  • Land Registration ActSection 87(1)(a)

Cases cited (1)

  • Re Estate of Said Abdalla (Deceased) [2018] eKLR
    [2018] eKLR
Jurisdiction invoked
Sections 18 and 19 of the Land Registration Act, 2012; the Court's Order dated 29th May, 2020 directing the Land Registrar to prepare a report

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, "Teresiah Wanjiku Mutinda & another v Richard Ben Kasaa Musembi [2022] KEELC 1021 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1021/eng@2022-03-09

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