Esquire Investments Limited v Kajiado District Land Registrar & another [2022] KEELC 2010 (KLR)
The bottom line
#A Kenyan court ordered a neighbour to demolish a wall built over 12 metres onto another owner's land, confirming encroachment must be corrected.
What this practically means
#Executive summary
#Key legal issues
#Distinguishability of Azzuri Limited v Pink Properties Limited
The case is distinguishable because in Azzuri the dispute was determined by a surveyor rather than the Registrar, and the encroachment there was negligible (1.3m by 1.6m) whereas here it exceeds 12 metres.
The court noted that Section 18(2) of the Land Registration Act requires boundary disputes to be determined by the Registrar, and in the present case it was the Land Registrar who determined the dispute, unlike in Azzuri where the surveyor did so. Further, the magnitude of encroachment here was over 12 metres, vastly exceeding the negligible 1.3 by 1.6 metre discrepancy in Azzuri, making the precedent inapplicable.
Acquiescence
The Appellant did not acquiesce; it raised the boundary complaint as early as 23rd September 2003 and its own action triggered the demarcation.
The court found credible evidence that the Appellant complained to the Land Registrar on 23rd September 2003, and that it was the Appellant's own action that caused the First Respondent to demarcate the boundary, resulting in the appeal. Prompt pursuit of the statutory boundary dispute mechanism is the opposite of acquiescence, so the doctrine could not defeat the appeal.
Encroachment
Encroachment was proved by both the Government Surveyor and the Appellant's Surveyor, with a disparity of over 12 metres.
The Government Surveyor found the frontage of the Appellant's parcel shorter than the records show while the Second Respondent's was longer, a disparity far outside any margin of error. Both surveyors' evidence corroborated the encroachment, and the magnitude (over 12 metres) was well beyond the negligible margin recognised in the Azzuri authority.
Fairness of the Registrar's determination
The First Respondent's determination was unfair because it allowed the status quo to stand despite a glaring, legally indismissible encroachment.
The court held that the encroachment was way outside the margin of error allowed by the law, being ten times the negligible discrepancy in Azzuri. The Registrar had discretion and was duty bound to rectify the injustice of the Appellant losing a huge chunk of land without just cause or compensation; leaving the status quo intact was not fair at all.
Legal principles established
#- Boundary disputes under the Land Registration Act must be determined by the Registrar, not the surveyor
- An appellate court will not interfere with findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles
Court orders
#- 1.The First Respondent's determination of 9th August 2019 is set aside and the Surveyor's Report is adopted as the correct decision
- 2.The area maps which reflect the correct area and dimension of the two parcels be maintained and the physical boundary therein be enforced
- 3.The part of the Second Respondent's wall encroaching on the Appellant's parcel be demolished
- 4.The Respondents to bear the costs of this appeal
- On appeal from
- Land Registrar Kajiado
- Jurisdiction invoked
- First appeal from the Land Registrar's determination under Section 18 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esquire Investments Limited v Kajiado District Land Registrar & another [2022] KEELC 2010 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2010/eng@2022-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.