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ELCPartially AllowedNot specified in the judgment· [2024] KEELC 4789 (KLR)

Doset Wanjala t/a Blessed International Ministries Church v Wandera (Environment and Land Appeal E050 of 2022) [2024] KEELC 4789 (KLR)

Environment and Land Court
20 June 2024
DOD. O. Ohungo
2,228 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his encroachment case because unfixed land boundaries can only be disputed through the land registry process, not the magistrates' court.

What this practically means

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Executive summary

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The Respondent sued the Appellant in the Subordinate Court claiming to be the registered proprietor of Bunyala/Nambacha/1274 and alleging that the Appellant's ongoing construction on an abutting parcel had encroached onto the suit property. He sought demolition of the encroaching portion at the Appellant's expense plus costs. The Appellant denied the claim, alternatively contending the construction stood on a plot forming part of an unadministered estate. The trial court found for the Respondent and ordered demolition of any encroaching part of the construction, with costs. The Appellant appealed on grounds including lack of proof of encroachment and want of jurisdiction under Section 18(2) of the Land Registration Act, arguing the dispute was a boundary dispute over unfixed boundaries. Ohungo J, hearing the first appeal, framed three issues: jurisdiction, proof of encroachment, and reliefs. The court held the burden lay on the Respondent to show the boundary was fixed; his title deed alone did not discharge it, and under Section 18(1) boundaries are deemed approximate unless noted as fixed. The Subordinate Court therefore lacked jurisdiction. In any event, the Respondent, relying on layman's assertions without survey evidence, had not proved encroachment, and the demolition order was unenforceable without a secondary survey process. The court declined to cure the defect by ordering a survey on appeal. The appeal was allowed: the trial judgment was set aside and replaced with an order striking out the Respondent's case for want of jurisdiction, with costs of the appeal and the subordinate court proceedings awarded to the Appellant.

Key legal issues

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01

Jurisdiction of the Subordinate Court over a boundary dispute under Section 18(2) of the Land Registration Act

Holding

The Subordinate Court lacked jurisdiction because the boundary of the suit property was not fixed; without a note in the register that boundaries are fixed, the court cannot entertain boundary disputes

Reasoning

The Respondent produced only a title deed, not the register, so it could not be ascertained that the boundary was fixed. Section 18(1) creates a presumption that boundaries are approximate unless noted as fixed. The burden of proving a fixed boundary lay on the Respondent who moved the court, and a title deed alone cannot discharge that burden. Consequently the trial court had no jurisdiction.

p. 4
02

Proof of encroachment

Holding

The Respondent failed to prove encroachment; expert survey evidence and a survey plan were required

Reasoning

Although the civil standard is balance of probabilities, encroachment is technical and requires detailed survey evidence including a survey plan to establish parcel identity, boundaries and location of developments. The Respondent relied only on layman's assertions and produced no survey report, Registry Index Map or photographic evidence, so encroachment was not proved.

p. 4
03

The adequacy of the demolition order

Holding

The demolition order was unenforceable without a secondary process to establish the encroaching portion

Reasoning

The trial court ordered demolition of any part of the construction encroaching onto the suit property, but such an order cannot be enforced without first establishing, through survey, what portion encroached. The order was thus problematic and the Respondent's attempt to cure the lacuna by seeking a survey order on appeal could not succeed given the jurisdictional defect.

p. 5

Legal principles established

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  • Where boundaries of registered land are not fixed, the subordinate court has no jurisdiction under Section 18(2) of the Land Registration Act to entertain boundary disputes; the party invoking the court bears the burden of showing the boundary was fixed
  • Encroachment on registered land is a technical issue requiring expert survey evidence; a litigant cannot rely on layman's assertions to prove encroachment

Court orders

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  1. 1.Judgment of the Subordinate Court set aside
  2. 2.Replaced with an order striking out the Respondent's case for want of jurisdiction
  3. 3.Appellant awarded costs of both the appeal and the proceedings in the Subordinate Court

Authorities

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Legislation

  • Land Registration ActSections 18(1), 18(2), 18(3), 19, 19(3), 20
  • Civil Procedure ActSection 78(d)
  • Registered Land Act (repealed)Not specified
  • Survey ActCap. 299

Cases cited (9)

  • Azzuri Limited v Pink Properties Limited
    [2018] eKLR
  • George Kamau Macharia v Dexka Limited
    [2019] eKLR
  • Wills Ocholla v Mary Ndege
    [2016] eKLR
  • Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others
    [2020] eKLR
  • Estate of Gabriel Kiprop Chebet v Director of Land Adjudication and Settlement & another
    [2022] eKLR
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
On appeal from
Subordinate Court (Chief Magistrate's Court)
Not specified in the judgment
Jurisdiction invoked
First appeal to the Environment and Land Court under the Environment and Land Court Act over the subordinate court's decision in a land dispute

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Doset Wanjala t/a Blessed International Ministries Church v Wandera (Environment and Land Appeal E050 of 2022) [2024] KEELC 4789 (KLR)", Case Analysis (2024). Not specified in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4789/eng@2024-06-20

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