Kitonga & another (Legal Representatives of the Estate of Joyce Ndungwa Kitonga) v Nzyoka (Environment and Land Appeal E004 of 2022) [2024] KEELC 1667 (KLR)
The bottom line
#In Kenya, when land boundaries are unfixed, the ground's physical features beat the map, and boundary disputes belong to the Land Registrar first.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over general boundary disputes
Disputes over general/unfixed boundaries fall to the Land Registrar under section 18 of the Land Registration Act; the court may only intervene where the boundary is fixed or where the Registrar has failed to act, as happened here since the dispute had been pending since 1983.
Section 18(2) bars courts from entertaining boundary disputes unless boundaries have been determined per the section. Boundaries registered under the repealed Registered Land Act are general. A general boundary dispute concerns boundary features (hedges, stones, beacons), a matter for the Land Registrar, not measurements. However, given the Registrar's refusal to decide and the delay since 1983, the court assumed jurisdiction in the interest of expeditious justice under Article 159 and section 3 of the ELC Act.
Whether the RIM or the ground supersedes
The ground supersedes the RIM; the RIM, being prepared after adjudication from aerial photography, is secondary and must conform to ground boundary features.
During adjudication the general boundary was adopted from the aerial view as reflected on the ground; the RIM was derived from the ground, not vice versa. The aerial photograph, undisputed, shows the hedges of parcel 425 include the disputed area, and Geomatics Services found the boundary line D-F on the RIM nonexistent on the ground. Therefore the RIM must be amended to conform to the ground.
Burden of proving encroachment
The respondent failed to discharge the burden of proving boundary features showing encroachment; surveyors' measurements of general boundaries were irrelevant.
Under section 107 of the Evidence Act, the respondent pleading encroachment had to prove boundary features within the appellants' occupation demonstrating the encroachment. He proved none; his complaint concerned Kei apple roots affecting coffee. Evidence based on measurements is irrelevant to general boundaries, so the finding of 0.08 hectares encroachment could not stand.
Duty of first appellate court
The first appellate court must reanalyze, reassess and reevaluate the evidence and reach its own conclusions, mindful it did not hear the witnesses.
Citing Gitobu Imanyara v Attorney General, the court restated the retrial-like duty of a first appellate court before setting out its own independent analysis of the surveyors' reports, the Land Registrar's decision and the parties' evidence.
Legal principles established
#- A dispute concerning general (unfixed) boundaries is a dispute for the Land Registrar, not the court, unless the Registrar has failed to exercise the statutory mandate
- Where boundaries are general, the ground boundary features supersede the Registry Index Map, which is secondary to the ground
- A party alleging encroachment bears the burden of proving the boundary features demonstrating the encroachment
- The court may determine an unfixed boundary dispute where the Land Registrar has failed to exercise his statutory mandate under section 18(2) of the Land Registration Act
Court orders
#- 1.Appeal allowed
- 2.Findings, determination and judgment of the trial court set aside to the extent of allowing the respondent's claim
- 3.Respondent's case before the lower court dismissed
- 4.Trial court's orders on the dismissed counterclaim maintained
- 5.Land Registrar Machakos together with the Director of Surveys to amend the RIM/Cadastral Map regarding the common boundary between parcel Nos. Machakos/Mua Hills/217 and 425 to conform to the ground
- On appeal from
- Chief Magistrate's Court at Machakos (ELC)
- ELC Case Number 87 of 2020
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court; Environment and Land Court Act, section 3; Constitution Article 159
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Barmasai v Rono & 9 others (Civil Appeal E068 of 2023) [2025] KECA 1489 (KLR)[2025] KECA 1489 (KLR)19 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kitonga & another (Legal Representatives of the Estate of Joyce Ndungwa Kitonga) v Nzyoka (Environment and Land Appeal E004 of 2022) [2024] KEELC 1667 (KLR)", Case Analysis (2024). Machakos ELCA (ELC Appeal) arising from Machakos Chief Magistrate's Court ELC Case Number 87 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1667/eng@2024-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.