Mapi v Land Registrar Kajiado North & another (Environment and Land Miscellaneous Application 87 of 2019) [2022] KEELC 3475 (KLR)
The bottom line
#A 27-year-old restriction on a Ngong land parcel was ordered removed, confirming Kenya's land restrictions cannot linger indefinitely and boundary disputes belong to the Land Registrar.
What this practically means
#Executive summary
#Key legal issues
#Whether the Originating Summons is res judicata to Nairobi HCCC No.4469 of 1992
The suit is not res judicata: the 2nd Respondent was not a party to the former suit, and the former suit determined ownership and trespass, not the restriction or boundary issues raised here.
The court applied section 7 of the Civil Procedure Act and its explanations, requiring competent jurisdiction, the same parties litigating under the same title, and the same matter heard and finally decided. The former High Court suit determined ownership of Ngong/Ngong/5257 and 9510 and granted a permanent injunction; the present suit seeks lifting of a restriction and adoption of a boundary report. The 2nd Respondent was not a party to the former suit, so the res judicata elements were not satisfied.
Whether the restriction on the suit property ought to be lifted
Yes. The restriction registered in 1995 had been overtaken by events; the 1st Respondent was statute-bound to remove it and his refusal was prejudicial and contrary to the Fair Administrative Action Act.
Under sections 76 and 78 of the Land Registration Act, a restriction is made to prevent fraud or improper dealings and may endure for a period, until an event, or until further order. Restrictions are not meant to remain indefinitely. No evidence of fraud was presented and no plausible reason was given for the restriction to subsist, so the court directed its removal forthwith.
Whether the boundary report dated 27th May 2019 should be adopted
Yes. The High Court decree in HCCC No.4469 of 1992 did not determine the boundary between the two parcels, and only the Land Registrar may determine boundaries, so the decree could not block adoption of the Registrar's report.
Sections 18 and 19 of the Land Registration Act bar courts from entertaining boundary disputes unless boundaries have been determined under those provisions; the Registrar exercises that mandate. The impugned High Court judgment dealt with trespass and ownership, not boundaries. The 2nd Respondent participated in the 2019 boundary proceedings and never sought to quash them, so the Registrar's report of 27th May 2019 was adopted as the boundary between the parcels.
Legal principles established
#- Res judicata requires a previous suit, same parties or parties litigating under the same title, and a competent court that heard and determined the matter in issue.
- A restriction on land is not meant to subsist indefinitely; it holds the property in abeyance only while the underlying issue is resolved.
- Only the Land Registrar is mandated to determine a boundary dispute, and the court is estopped from doing so until the Registrar has exercised that mandate.
Court orders
#- 1.That the restriction placed on the parcel of land known as Ngong/Ngong/14384 be removed forthwith
- 2.That the boundary report dated 27th May 2019 be and is hereby adopted as the boundary between Ngong/Ngong/14384 and Ngong/Ngong/5257
- 3.The costs of the application is awarded to the Applicant
- Jurisdiction invoked
- Sections 76, 78(1) and 78(2) of the Land Registration Act; sections 18 and 19 of the Land Registration Act on boundary disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mapi v Land Registrar Kajiado North & another (Environment and Land Miscellaneous Application 87 of 2019) [2022] KEELC 3475 (KLR)", Case Analysis (2022). Originating Summons dated September 23, 2019 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3475/eng@2022-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.