Rono & another v Kemei (Environment and Land Case 127 of 2021) [2024] KEELC 359 (KLR)
The bottom line
#A Kenyan court fixed an official map error that caused overlapping land titles, ruling neither neighbour was fraudulent and each keeps their surveyed portion.
What this practically means
#Executive summary
#Key legal issues
#Weight of the court-ordered survey report against the RIM
The survey report demonstrated that the RIM used to issue titles was erroneous, since parcels 395/393 and 368/444 were duplicated or omitted, and the RIM must reflect the field sheet
Three expert witnesses (the Land Registrar, County Surveyor and a Senior Cartographer from the Director of Survey) confirmed variances between the field sheet and RIM on several points. The RIM had plot 395 twice while 368 was missing, and parcel 393 on the RIM combined what the field sheet showed as 368 and 444. The Court concluded the RIM was prepared from the original field sheet without the September 1993 amendments, making it erroneous.
Whether there is an overlap between parcels 393 and 444
Yes - based on the current RIM, parcel 393 combines both 368 and 444 of the field sheet, so the Defendant's title overlaps the Plaintiffs' parcel
The survey report and expert testimony established that the Defendant's title, issued on the erroneous RIM, covered ground occupied by both parties. The Defendant occupied the portion that was 368 on the field sheet while the Plaintiffs occupied the portion that was 444, yet one title of 4.209Ha covered both.
Whether fraud was proved against the Defendant
No; the Plaintiffs' claim of fraudulent acquisition failed
The Plaintiffs pleaded five particulars of fraud and sought cancellation of the Defendant's title. The evidence, including the expert testimony, showed the discrepancy stemmed from a survey/registry error in preparing the RIM, not any act of fraud by the Defendant. Fraud must be pleaded and proved, and the evidence did not support it.
Whether the Defendant's counterclaim should be allowed
No; the counterclaim for injunction and eviction failed because it depended on the erroneous RIM
The Defendant alleged the Plaintiffs encroached on his parcel 393 and sought eviction and injunctive orders. However, the encroachment alleged was founded on a title generated from an erroneous RIM. All three expert witnesses confirmed the RIM was wrong; the dispute was caused by no fault of either party, and the proper remedy was amendment of the RIM and rectification of the register.
Legal principles established
#- Reliance on an erroneous Registry Index Map in land registration leads to an absurd outcome and the remedy is amendment of the RIM and rectification of the register
- A title issued on the basis of an erroneous RIM cannot confer entitlement to acreage not supported by the correct survey record
Court orders
#- 1.Adoption of the proposal to amend the RIM for Songhor/Kabutie Senetwo/10818 in terms of the survey report dated 7th November 2023
- 2.The Land Registrar Nandi County to rectify the Registers in respect of Songhor/Kabutie Senetwo/Block 1/393 and Songhor/Kabutie Senetwo/Block 1/444 in terms of the acreage pursuant to the survey report dated 7th November 2023
- 3.Each party awarded their current respective portions as per the amended RIM and the survey report dated 7th November 2023
- 4.No orders as to costs
- Jurisdiction invoked
- Original civil suit transferred from the High Court (Eldoret HCCC No. 179 of 2009) to the Environment and Land Court upon its establishment; rectification ordered under section 80 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rono & another v Kemei (Environment and Land Case 127 of 2021) [2024] KEELC 359 (KLR)", Case Analysis (2024). Kapsabet ELC Case No. (formerly Eldoret ELC 563 of 2012; originally Eldoret HCCC No. 179 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/359/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.