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ELCDismissedELC No. 868 of 2017· [2024] KEELC 5539 (KLR)

Kiarie v Pelia (Environment & Land Case 868 of 2017) [2024] KEELC 5539 (KLR)

Environment and Land Court
25 July 2024
3,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to decide a fence/access-road fight, ruling boundary disputes must first go to the Land Registrar — whose report now binds both neighbours.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Kajiado/Kaputiei North/5696 and 5035 (subdivided into parcels including 53904-53908), sued the Defendant, registered owner of Kajiado/Kaputiei North/1168 (his title stated as 4260, formerly 1894), after the Defendant fenced off and closed a road the parties had been using, contending the road lay within his land. The Plaintiff sought an order to reopen the road, a permanent injunction, general damages of Kshs. 10,000,000, costs and interest. The Defendant denied encroachment, asserted the road passed through his land, and raised a preliminary point that the dispute was a boundary dispute within the exclusive jurisdiction of the Land Registrar under Section 18(2) of the Land Registration Act. Both parties produced survey reports: the Plaintiff's private surveyor's report of 11th January 2018 and the Land Registrar and District Surveyor's report of 22nd May 2018, which contained three versions but shared the common finding of a 12-metre road between original parcels 451 and 459. Framing two issues - entitlement to the reliefs and costs - the court held that the dispute was clearly a boundary dispute reserved for the Land Registrar; consequently the Plaintiff's prayers were moot and could not be granted. The court declared the Land Registrar's report of 22nd May 2018 binding on all parties and, as the parties are neighbours, ordered each party to bear its own costs. The Plaintiff's claim therefore failed on jurisdiction.

Key legal issues

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01

Whether the court has jurisdiction to determine the dispute over the closure of the access road

Holding

The court lacks jurisdiction because the dispute is a boundary dispute reserved for the Land Registrar under Sections 16, 17 and 18 of the Land Registration Act

Reasoning

The court found on the pleadings, evidence and testimonies that the real question was the position of the boundary/access road between the parties' parcels. Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes not first determined by the Land Registrar. Both survey reports and the summonses to the Land Registrar and District Surveyor confirmed the dispute concerned the position of the access road, so the Plaintiff's prayers became moot.

p. 7
02

Whether the Plaintiff is entitled to the reliefs sought

Holding

No - the prayers are moot given the jurisdictional bar, and the Registrar's report of 22nd May 2018 is binding on all parties

Reasoning

The court noted two survey reports existed on the same dispute. The Defendant's report of 22nd May 2018 used the Olkinois Group Ranch RIM and subdivision scheme, GPS, ranging rods and total station, and recommended an offset of a 12-metre road from beacons G, A and F along parcel 459. Since the Land Registrar is the mandated body for boundary determination, the Plaintiff's prayers could not be granted and the Registrar's report binds the parties.

p. 7
03

Who should bear costs of the suit

Holding

Each party to bear own costs, as the parties are neighbours

Reasoning

Although costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the court in its discretion ordered each party to bear its own costs given the neighbourhood relationship between the parties.

p. 7

Legal principles established

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  • The court shall not entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with the Land Registration Act
  • Where both parties' survey reports identify a common factor (the 12-metre road), the Land Registrar and District Surveyor's report is binding on the parties

Court orders

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  1. 1.That the report dated 22nd May 2018 (the Land Registrar and District Surveyor's report) is binding on all parties
  2. 2.That the Plaintiff's prayers are moot and cannot be granted
  3. 3.That each party to bear own costs

Authorities

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Legislation

  • Land Registration ActSections 16, 17 and 18(1) and (2)
  • Civil Procedure ActSection 27
  • Land Registration Act (referred to by defendant's counsel as 'Land Registrar Act')Section 18(2)

Cases cited (6)

  • Homescope Properties Ltd & another vs David Gachuki & Pamela Odera sued as Chairman & Secretary of Karen Ngong view Estate & another
    [2014] eKLR
  • Kenya Power & Lighting Co. Ltd vs Sherifi Molana Habib
    [2018] eKLR
  • Bandari Investments & Co. Ltd vs Martin Chiponda & 139 others
    [2022] eKLR
  • Willis Ocholla vs Mary Ndege
    (2016) eKLR
  • Ezekiel Mairura vs Johnson Anyega Oigara & another
    (2017) eKLR
  • Sagalla Rancher Ltd vs Saumu Mwanganjoni & 99 others
    (2022) eKLR
Jurisdiction invoked
Articles 162(2) and 165 of the Constitution establishing the Environment and Land Court (implied); jurisdiction curtailed by Sections 16, 17 and 18 of the Land Registration Act on boundary disputes

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, "Kiarie v Pelia (Environment & Land Case 868 of 2017) [2024] KEELC 5539 (KLR)", Case Analysis (2024). ELC No. 868 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5539/eng@2024-07-25

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