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ELCDismissedNot stated in judgment· [2022] KEELC 3614 (KLR)

Nguma & 77 others v Katelembo Athiani Muputi Farming & Ranching Co-operative Society & 5 others (Environment & Land Petition 76 of 2017) [2022] KEELC 3614 (KLR)

Environment and Land Court
30 May 2022
COChristine Ochieng
1,507 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts will not hear land boundary disputes until the Land Registrar has first determined the boundaries under section 18 of the Land Registration Act.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) determined the petitioners' notice of motion dated March 8, 2021, brought under Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63 of the Civil Procedure Act. The petitioners, who had filed a petition claiming proprietary rights including ancestral land, overriding interest and a permanent injunction, sought an order directing the county surveyor or any government surveyor to survey all parcels where they are settled, establish boundaries and file a report on acreage, with liberty for the parties to engage an independent surveyor. The 1st respondent, through its chairman Wilson Masila Muema, opposed the application, denying any boundary dispute, asserting the ranch land had been acquired in 1971 by 3,525 members and already surveyed and subdivided into allocated plots, alleging most applicants had already benefited or sought to benefit twice, and characterising the application as a fishing expedition. The court framed a single issue: whether to order the survey. Applying section 18 of the Land Registration Act, the court held that boundary disputes over registered land must first be determined by the Land Registrar before court, that the petitioners had filed suit before invoking that process and were merely seeking to collect evidence, and that the burden lay on them to prove their proprietary rights. The application was found unmerited and disallowed, with costs in the cause.

Key legal issues

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01

Whether the court should order a government surveyor to survey the parcels occupied by the petitioners and report on boundaries

Holding

The application was refused: boundary disputes over registered land must first be determined by the Land Registrar under section 18 of the Land Registration Act, and the application was a fishing expedition to collect evidence

Reasoning

The court noted the petition's fulcrum concerned proprietary rights - ancestral land, overriding interest and permanent injunction - meaning the petitioners must already know the extent of land they occupy. Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes not first determined by the Land Registrar. The suit land had already been surveyed and subdivided, the applicants had not controverted allegations they had been allocated plots, and allowing the survey would enable them to gather evidence to prove their own claim.

p. 3

Legal principles established

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  • It is the Land Registrar who is legally mandated to deal with a boundary dispute in the first instance before the matter can be handled by the court
  • The court shall not entertain any action or proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with section 18 of the Land Registration Act
  • A party claiming violation of rights must prove its case and cannot use an interlocutory application as a fishing expedition to collect evidence

Court orders

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  1. 1.The notice of motion application dated March 8, 2021 is disallowed/unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure Actsections 1A, 1B, 3A and 63
  • Land Registration Actsection 18
  • Survey ActChapter 299

Cases cited (3)

  • Albert Boyo Kirui V Benjamin Kiprotich & 5 Others
    (2019) eKLR
  • Cosmas N. E Kathungu V Njue Kiarie & Another
    (2017) eKLR
  • Okiya Omtatah Okoiti V Communications Authority of Kenya & 12 others
    (2016) eKLR
Jurisdiction invoked
Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63 of the Civil Procedure Act, in an ongoing petition before the Environment and Land Court

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, "Nguma & 77 others v Katelembo Athiani Muputi Farming & Ranching Co-operative Society & 5 others (Environment & Land Petition 76 of 2017) [2022] KEELC 3614 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3614/eng@2022-05-30

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