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ELCPartially AllowedELC Appeal arising from CMCC 100 of 2018 (Kitui)· [2022] KEELC 3247 (KLR)

Munyali v Musyoka (Environment and Land Appeal 19 of 2021) [2022] KEELC 3247 (KLR)

Environment and Land Court
26 July 2022
LKL. G. Kimani
4,001 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

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A Kenyan court threw out a trespass award because only the Land Registrar, not a surveyor, can legally fix a disputed land boundary.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kitui against the judgment of the Chief Magistrate (Hon. S. Mbungi) delivered on 20/12/2019 in CMCC 100 of 2018, in which the respondent (plaintiff) had been awarded Ksh.145,000 - Ksh.100,000 general damages and Ksh.45,000 special damages for trees destroyed by trespass - against the appellant (defendant), a neighbouring landowner of Miambani/Miambani/2495. The appellant contended that the trial court lacked jurisdiction over a boundary dispute under Section 18 of the Land Registration Act and that the findings were against the weight of evidence. The respondent maintained that the chief and a surveyor had sorted out the boundary and that trespass was proved. Kimani J. framed two issues: jurisdiction and the weight of evidence. The court held that although Section 18(2) bars courts from entertaining boundary disputes over registered land unless boundaries have been determined under the Act, following the Court of Appeal's decision in Menkar Limited the ELC's (and by extension magistrates') jurisdiction is not completely divested where the dispute involves more than boundary ascertainment. However, the trial court erred in treating the surveyor's placement of beacons as having 'fixed' the boundary; only the Land Registrar may fix boundaries under Sections 18 and 19, and absent a note in the register the plans show approximate boundaries only. The claim therefore turned on an unresolved boundary question that should have been referred to the Land Registrar. Allowing the appeal, the court set aside the trial judgment, remitted the suit for fresh hearing with directions that the boundary be determined by the Land Registrar, and awarded the appellant the costs of the appeal.

Key legal issues

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Whether the trial court had jurisdiction to determine the dispute given Section 18(2) of the Land Registration Act

Holding

The court's jurisdiction is not completely divested where the dispute is intertwined with other issues (trespass, damages), but the boundary question must first be referred to the Land Registrar; the trial court erred in treating the surveyor's beacons as having fixed the boundary.

Reasoning

Section 18(2) provides that courts shall not entertain boundary disputes unless boundaries have been determined under the section. However, read with Section 13(2)(a) of the ELC Act and Section 9 of the Magistrates' Courts Act, and following Menkar Limited, jurisdiction is not divested where issues are intertwined. The trial court misapprehended the law in finding that a privately-instructed surveyor 'fixed' the boundary; only the Land Registrar may do so under Sections 18 and 19. The matter should have been referred to the Land Registrar before determining trespass.

p. 5
02

Whether the trial court's findings were against the weight of the evidence

Holding

Yes - since the plaintiff did not show the boundary was a fixed boundary, it was unclear on which parcel the damaged trees stood, and the findings were against the weight of evidence.

Reasoning

The title deeds, forestry report and correspondence showed only a disagreement on the boundary location. Without a note in the register that boundaries were fixed, the cadastral map and filed plan indicated only approximate boundaries. It was therefore not established that the portion where damage was assessed lay on the plaintiff's land, rendering the trial court's finding of trespass against the weight of the evidence.

p. 8

Legal principles established

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  • Unless boundaries are noted as fixed in the register, the cadastral map and filed plans indicate only approximate boundaries; a surveyor engaged privately cannot fix a boundary - only the Land Registrar may do so under Sections 18 and 19 of the Land Registration Act.
  • Section 18(2) does not completely divest the ELC/magistrates' court of jurisdiction where the dispute involves more than boundary ascertainment, but the boundary dispute should be referred to the Land Registrar before determination of trespass.
  • A surveyor's report is not a substitute for the Land Registrar's determination under Section 18(2) of the Land Registration Act.

Court orders

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  1. 1.The appeal be and is hereby allowed.
  2. 2.The judgment and decree in the Chief Magistrates Court sitting at Kitui in CMCC No. 100 of 2018 be and is hereby set aside.
  3. 3.The suit before the Chief Magistrates Court be remitted back for hearing afresh with directions that the determination of the boundary between the parties' parcels Miambani/Miambani/2491 and Miambani/Miambani/2495 be referred to the Land Registrar for hearing and determination and a report be filed with the court.
  4. 4.Subsequent to filing of the Land Registrars report, the court to proceed with determination of the suit.
  5. 5.Costs of this appeal be awarded to the Appellant.

Authorities

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Legislation

  • Land Registration ActSection 18
  • Land Registration ActSection 19
  • Land Registration ActSection 20
  • Environmental and Land Court ActSection 13(2)(a)
  • Environmental and Land Court ActSection 26
  • Magistrates' Courts Act No. 26 of 2015Section 9
  • Survey ActCap. 299
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (9)

  • Michael Maluti & 5 others vs Julius Mbau Nzyuko and 2 others
    2019 eKLR
  • Geofirey Muthinja Kaburu & 2 others vs Samuel Muga Henry & 1756 others
  • Fredrick Wainaina & 2 others vs Stephen Kariuki Ndung'u and 2 others
    2021 eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Wills Ocholla v Mary Ndege
    [2016] eKLR
  • Menkar Limited v Ratilal Ghela Samat Shah & 2 others
    [2019] eKLR
  • D.T Dobie Company (K) Limited v. Muchina
    (1982) KLR
  • Wenlock v. Moloney
    (1965)
On appeal from
Chief Magistrate's Court at Kitui
CMCC 100 of 2018
Jurisdiction invoked
First appeal from the magistrates' court pursuant to the Environment and Land Court Act (s. 26 read with the Magistrates' Courts Act); dispute relating to boundaries and trespass under Article 162(2)(b)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Munyali v Musyoka (Environment and Land Appeal 19 of 2021) [2022] KEELC 3247 (KLR)", Case Analysis (2022). ELC Appeal arising from CMCC 100 of 2018 (Kitui). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3247/eng@2022-07-26

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