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ELCDismissedEnvironment & Land Case 34 of 2021· [2023] KEELC 15907 (KLR)

Gesanda & 9 others v School Committee Nyamwetureko Primary School & 2 others

Environment and Land Court
2 March 2023
JKJM Kamau
1,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Ten landowners lost their boundary dispute against a Nyamira primary school because their surveyor's incomplete report failed to prove any encroachment.

What this practically means

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Executive summary

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Ten plaintiffs, owners of parcels adjoining West Mugirango/Siamani/1101, sued the School Committee of Nyamwetureko Primary School, the County Land Registrar Nyamira and the County Surveyor over a long-standing boundary dispute. They sought an order compelling the Registrar and Surveyor to determine the boundary and an eviction order if the school was found to have encroached. The school denied encroachment, relying on reports by the state officers vindicating it, and alleged the plaintiffs were incited by a former teacher. The plaintiffs called a private surveyor, Mr Njoga, whose report recorded acreage figures but omitted the extent of the alleged encroachment and conceded insufficient time for accuracy; the court found his report incomplete and unreliable. The County Surveyor, Mr Oganda, testified that using the Registry Index Map, GPS and measuring tape, the school boundaries were intact and no encroachment existed, with an undisputed road surrounding the school. The Land Registrar adopted that report. The court held that the burden of proof lay squarely on the plaintiffs and never shifts, and that they failed to discharge it. It further reasoned that since the road did not encroach on the plaintiffs' land, the school land further away could not have done so. The suit was dismissed with costs on 2 March 2023.

Key legal issues

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01

Whether encroachment by the 1st Defendant was proved

Holding

No; the Plaintiffs' private surveyor's report did not indicate the measurements of the alleged encroachment and was unreliable, while the County Surveyor and Land Registrar found the school boundaries intact

Reasoning

The private surveyor's report omitted the extent of encroachment, left the acreage columns unexplained, and conceded insufficient time for accuracy. He did not know the defendant's acreage and relied on mutation forms by an absent surveyor. The County Surveyor found boundaries intact with a road around the school, and the Registrar adopted that report.

p. 4
02

Internal logic of the claim given the existence of a road between the parcels

Holding

If the road surrounding the school does not encroach on the Plaintiffs' land, the school's land, which lies further away, could not have done so

Reasoning

The Plaintiffs did not allege that the road encroached on their parcels or that their parcels extended beyond the road. Since the County Surveyor's evidence established an undisputed road surrounding the school, the claim of school encroachment was logically unsustainable.

p. 5
03

Whether the 2nd and 3rd Defendants neglected their statutory duties

Holding

Effectively no; they visited the locus in quo, prepared reports, and found no encroachment

Reasoning

The County Surveyor and Land Registrar visited the land in the presence of all parties on May 23, 2022, relied on the Registry Index Map, GPS and measuring tape, and produced reports finding the school boundaries intact. Their conduct therefore did not amount to neglect of duty.

p. 4

Legal principles established

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  • The burden of proving encroachment in a boundary dispute lies with the plaintiff and never shifts
  • An incomplete or unsubstantiated surveyor's report is unreliable evidence incapable of discharging the burden of proof

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Basic Education Act
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over boundary disputes (formerly ELC Kisii Case No. 1280 of 2016, transferred)

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, "Gesanda & 9 others v School Committee Nyamwetureko Primary School & 2 others", Case Analysis (2023). Environment & Land Case 34 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15907/eng@2023-03-02

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