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ELCDismissedNot stated in the judgment (Homa Bay Environment and Land Court suit, plaint filed July 25, 2018)· [2023] KEELC 519 (KLR)

Aloo v Ouma & another (Environment & Land Case 23 of 2021) [2023] KEELC 519 (KLR)

Environment and Land Court
31 January 2023
GOG. M. A. Ong'ondo
1,645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Homa Bay court dismissed a landowner's claim because Kenyan law requires boundary disputes to be resolved first by the Land Registrar, not by filing a lawsuit.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Central Kasipul/Kamuma/1735, sued the 1st and 2nd defendants by plaint dated July 24, 2018, alleging that in August 2001 they fraudulently curved out parcel Central Kasipul/Kamuma/4279 from his land. He sought eviction of the 1st defendant, permanent injunctions, rectification of the register cancelling entries for parcels 1736 and 4279 with reversion to parcel 1735, and costs. The 1st defendant denied the claim, asserting he bought the land from one Sije Owade in 1994, and challenged the court's jurisdiction; the 2nd defendant (through the Attorney General) entered appearance. On May 18, 2021 the court partially allowed the 1st defendant's preliminary objection and directed the Homa Bay Land Registrar and Surveyor to file reports. The Land Registrar's report of March 25, 2022 found that parcel 1736 did not exist on the ground, that the plaintiff had fully utilized his land, and that the boundary was fixed immediately after the wall of his house. After receiving submissions from all parties, the court held the parties had a fair hearing before the Registrar and the court, that the boundaries had been ascertained and fixed under sections 18 and 19 of the Land Registration Act, and that the expert report, though not binding, gave no reason for rejection. The plaintiff was found to have failed to prove his claim on a balance of probabilities. The court adopted the report and dismissed the suit with costs to the 1st defendant.

Key legal issues

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01

Fair hearing in the boundary-determination proceedings

Holding

The parties were given opportunity to be heard both by the Land Registrar and by the court on the report, satisfying Articles 48, 25(c) and 50(1) of the Constitution

Reasoning

The plaintiff and the 1st defendant participated in the proceedings that generated the report. Although one Luka Muma allegedly represented the 1st defendant at the Registrar's meeting, the parties were made aware of the suit and the report and had the right to appear or decline and to file submissions, so the right to be heard was honoured.

p. 3
02

Determination of boundaries under sections 18 and 19 of the Land Registration Act

Holding

The approximate boundaries, situation and position of the suit land vis-a-vis the 2nd other parcel were ascertained and fixed pursuant to sections 18 and 19 of the Land Registration Act

Reasoning

Section 18(2) bars the court from entertaining boundary disputes unless the boundaries have first been determined under that section. The Land Registrar's report fixed the boundary immediately after the plaintiff's wall and found parcel 1736 did not exist on the ground. The plaintiff's challenge went to the merits of the Registrar's proceedings, which the court declined to entertain.

p. 4
03

Weight of the Land Registrar's expert report

Holding

The court found no reason to reject the report, adopted it, and held the plaintiff had failed to prove his claim on a balance of probabilities

Reasoning

Sections 48 to 54 of the Evidence Act govern expert evidence, but opinion evidence is not binding on the court. Applying that principle, the court found the report credible: it ascertained the boundaries, showed the plaintiff had fully utilized his land, and found parcel 1736 did not exist. The report was therefore adopted and the claim failed.

p. 4

Legal principles established

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  • Opinion evidence from an expert witness is not binding on the court, which is at liberty to accept or reject it depending on the facts and circumstances of the case
  • Where there is a clear procedure for redress of a particular grievance, that procedure must be adhered to

Court orders

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  1. 1.The report of the Land Registrar Homa Bay dated March 25, 2022 is adopted by the court
  2. 2.The plaintiff's suit is dismissed
  3. 3.Costs of the suit awarded to the 1st defendant

Authorities

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Legislation

  • Land Registration ActSection 18(2); sections 18 and 19
  • Constitution of Kenya, 2010Articles 48, 50(1), 25(c)
  • Evidence Act (Chapter 80, Laws of Kenya)Sections 48 to 54

Cases cited (8)

  • David Otieno Ohanda-vs-Henry Opiyo Akama and 2 others
    2021 KLR
  • Onyango Oloo-vs-Attorney General
    (1986-1989) EA 456
  • Ogada-vs-Mollin
    (2009) KLR 620
  • Speaker of National Assembly-vs-Karume
    (1992) KLR 21
  • Geoffrey Muthiga Kabiru and 2 others-vs-Samwel Munga Henry and 1756 others
    (2015) KLR
  • CD Desouza-vs-BR Sharma
    (1953) 26 KLR 41
  • Amosam Builders Developers Ltd-vs-Gachie and 2 others
    (2009) KLR 628
  • Registered Trustrees Legio Maria Africa Church Mission-versus-Simeon Nyamweya Obwocha
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction under the Land Registration Act, 2016 (sections 18 and 19); report procedure under Section 18(2)

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, "Aloo v Ouma & another (Environment & Land Case 23 of 2021) [2023] KEELC 519 (KLR)", Case Analysis (2023). Not stated in the judgment (Homa Bay Environment and Land Court suit, plaint filed July 25, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/519/eng@2023-01-31

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