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ELCDismissed· [2022] KEELC 2489 (KLR)

Miroro & 2 others v Marieta (Suing as A Legal Representative of The Estate Joyce Mokeira - Deceased) & 2 others (Environment & Land Case 135 of 2014) [2022] KEELC 2489 (KLR)

Environment and Land Court
14 July 2022
JOJ.M Onyango
2,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The court dismissed a landowner's trespass suit after surveys showed the disputed land actually belonged to an uninvolved third party, not the defendants.

What this practically means

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Executive summary

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The Plaintiff sued the Defendants in July 2014 seeking a declaration of ownership of Plot No. 9 Menyinkwa Market, eviction, a permanent injunction, general damages for trespass and/or conversion, interest and costs, alleging that in October 2013 the Defendants entered the plot without colour of right and began excavating topsoil and sinking trenches. The Defendants denied the claim, asserting that the 2nd Defendant owned a distinct parcel, Nyaribari Chache/b/b/boburia/9207, part of which he had sold to the 1st Defendant. The parties agreed to refer the boundary question to the Land Registrar and County Surveyor under sections 16 to 19 of the Land Registration Act. After an initial inconclusive report, the court on 31st May 2019 ordered a revisit; the surveyors filed a report dated 28th November 2019 finding that both parties were claiming land falling on parcel 6066, registered to a third party, Peter Ombese, and that Plot 9 and parcel 9207 are not adjacent, making boundary delineation impossible. A subsequent site visit by the Deputy Registrar confirmed these findings. The Plaintiff challenged the Deputy Registrar's report as usurping the Land Registrar's mandate; the court rejected this, holding she merely supervised implementation of its order. The court adopted the survey report as its judgment, found no encroachment on Plot 9, dismissed the suit and awarded costs to the Defendants.

Key legal issues

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01

Whether the Deputy Registrar's report was invalid for usurping the Land Registrar's mandate

Holding

The report was valid; it merely recorded implementation of the court's order and did not purport to be a survey report or to fix boundaries

Reasoning

The court's 20th May 2021 direction required the Deputy Registrar to represent the court in ensuring full implementation of the 31st May 2019 order. Her report simply confirmed the County Surveyor's evidence that the boundary could not be fixed on the ground. It did not amount to a survey report and did not encroach on the Land Registrar's statutory role, so there was no basis to invalidate it.

p. 5
02

Whether the survey report of 28th November 2019 should be adopted as the judgment of the court

Holding

Yes; it resolves the dispute by showing no encroachment, and the Plaintiff's suit is dismissed

Reasoning

The County Surveyor found the parcels claimed by the parties are not adjacent and that the portion both parties claim lies on parcel 6066 registered to a third party, Peter Ombese. Any boundary dispute would be between the Plaintiff and that third party, not the Defendants. The report therefore resolves the issues in dispute and the reliefs sought cannot be granted.

p. 6

Legal principles established

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  • A Deputy Registrar's report recording a court-supervised site visit does not usurp the statutory boundary-fixing mandate of the Land Registrar under sections 18 and 19 of the Land Registration Act
  • Where survey evidence shows the disputed portion belongs to a third party's parcel, the court may adopt the survey report as its judgment and dismiss the suit

Court orders

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  1. 1.The survey report dated 28th November, 2019 was adopted as the judgment of the court
  2. 2.The Plaintiff's suit was dismissed with costs to the Defendants

Authorities

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Legislation

  • Land Registration ActSections 16 to 19
  • Land Registration ActSection 19(1)
  • Land Registration ActSections 18 and 19
Jurisdiction invoked
Original jurisdiction under the Land Registration Act (sections 16 to 19) and the Environment and Land Court Act

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, "Miroro & 2 others v Marieta (Suing as A Legal Representative of The Estate Joyce Mokeira - Deceased) & 2 others (Environment & Land Case 135 of 2014) [2022] KEELC 2489 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2489/eng@2022-07-14

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