Mulupi (Subsituted with) Wakhisi v Mukhongo (Civil Case 73 of 2006) [2023] KEELC 889 (KLR)
The bottom line
#A son suing over his father's land lost after 17 years because he couldn't prove his neighbour encroached — the evidence actually showed he was the encroacher.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved encroachment by the defendant
The plaintiff failed to discharge the burden of proof; the expert evidence established the reverse - the plaintiff encroached onto the defendant's parcel 966
Sections 107 and 109 of the Evidence Act placed the burden on the plaintiff. Multiple surveyor reports were inconclusive or contradictory. The only surveyors who testified were DW1 Amos Wekesa Simiyu and PW4 Christopher Juma Nyongesa. Simiyu found the existing boundary largely correct and the plaintiff's family cultivating within parcel 966. PW4's statement said nothing of encroachment by the defendant, confirming only the portions each party occupied.
Whether the court could order rectification of the boundary
No - boundary rectification falls outside the court's jurisdiction; the court may only rectify the register under Section 80 of the Land Registration Act for fraud or mistake, which was not sought
The court distinguished rectification of boundaries (a survey-office function under Sections 16 and 19 of the Land Registration Act) from rectification of the register under Section 80. The plaintiff sought the former and had not sought rectification of any registration on grounds of fraud or mistake. The County Surveyor had confirmed on oath that this was not a boundary dispute as the boundaries were fixed long ago.
Weight to attach to the County Surveyor's report despite the absence of the Land Registrar's signature
The report was reliable and was adopted; the two officers conducted the exercise together and the report was produced without objection
DW1 testified that the Land Registrar Remmy Nganyi accompanied him and took part, though officers work independently and sign their own work. The report was produced without objection. If the plaintiff believed the Registrar's input was ignored, he could have summoned the Registrar as his witness since the onus of rebutting the report lay on him.
Legal principles established
#- The party alleging interference with a common boundary bears the burden of proving that allegation
- Rectification of boundaries is a matter for the office or authority responsible for survey of land, not the court; the court's power under Section 80 of the Land Registration Act is confined to rectifying the register for fraud or mistake
- A surveyor's report produced without objection and prepared jointly with the Land Registrar may be relied on even if unsigned by the Registrar; a party doubting it should summon the Registrar as a witness
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Costs of the suit awarded to the defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; Land Registration Act (Sections 16, 19, 20, 80) considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulupi (Subsituted with) Wakhisi v Mukhongo (Civil Case 73 of 2006) [2023] KEELC 889 (KLR)", Case Analysis (2023). Bungoma Chief Magistrate's Court Criminal Case No 762 of 2006 referenced; plaint dated 11th December 2006 (ELC suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/889/eng@2023-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.