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ELCPartially AllowedEnvironment and Land Appeal E001 of 2023· [2024] KEELC 6191 (KLR)

Githae v Ngugi & another (Environment and Land Appeal E001 of 2023) [2024] KEELC 6191 (KLR)

Environment and Land Court
10 September 2024
LGL. Gacheru
6,215 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 ruled that land boundary disputes must be resolved by the Land Registrar, not courts, before any judge can decide them.

What this practically means

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Executive summary

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This was a first appeal from the Chief Magistrate's Court at Murang'a against a judgment of 12th July 2023 which had dismissed the Appellant's plaint seeking an order that the District Surveyor and Land Registrar arbitrate a dispute over parcels LOC 10/Wanjengi/198, 205 and 211, and had instead upheld the Respondents' Counter-claim seeking a declaration of illegality of any subdivision to expand an access path, injunctions, an order that the Appellant procure an access path from her neighbours on a willing-buyer basis, and damages for trespass. The Appellant, registered owner of parcel 211, had sought fixing of a disputed boundary since 2011, when a resurvey by the Land Registrar was aborted owing to violence and hostility from the Respondents. On appeal, the court re-evaluated the evidence under sections 65(1) and 78 of the Civil Procedure Act and found the dispute was essentially a boundary dispute which had never been resolved, and which the Land Registrar alone was mandated to determine under sections 18 and 19 of the Land Registration Act. The trial court erred in finding the Appellant sought expansion of the access road and in upholding the Counter-claim without proof of trespass or intended subdivision. The appeal was allowed entirely: the trial judgment and Counter-claim orders were set aside, the Land Registrar and County Surveyor were directed to assess the boundary within 60 days with OCS Kirogo police security (exercise costs shared jointly), and the Appellant was awarded costs of the appeal and the lower court.

Key legal issues

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01

Whether a boundary dispute existed between the parties and whether it had been resolved

Holding

The court held that the dispute was a boundary dispute which had not been resolved, and translated into an access road dispute; the trial court erred in failing to find so

Reasoning

Pw2 testified to a longstanding boundary dispute predating the Appellant's ownership, and Pw4, the Land Registrar, confirmed the dispute was lodged in her office and remained unresolved due to hostility and insecurity. The trial court's finding that the dispute was solely about expansion of the access road was not supported by the cross-examination record, in which the Appellant denied seeking expansion and said she only wanted a road of access to her land.

p. 10
02

Whether the Land Registrar has the mandate to resolve the boundary dispute

Holding

Yes; the Land Registrar, with the County Surveyor and with security provided, was the proper body to resolve the boundary and access road question

Reasoning

Relying on sections 18 and 19 of the Land Registration Act and the Azzuri Ltd decision, the court found that boundary disputes must be referred to the Land Registrar, and that had the Registrar and Surveyor been allowed to visit the ground the dispute would not have escalated. The court accordingly directed the Registrar and Surveyor to fix the boundaries within 60 days with police security.

p. 10
03

Whether the Respondents proved their Counter-claim

Holding

No; the trial court erred in upholding the Counter-claim as there was no proof of trespass, of trees cut down, or of any intended subdivision or expansion of the access road

Reasoning

Applying sections 107 and 108 of the Evidence Act and the balance-of-probabilities standard, the court found the Respondents' allegations rested on assertion without evidence. The declaration, injunctions and damages sought were unsupported, and the order requiring the Appellant to procure an access path from her neighbours was misplaced since no evidence showed she intended to purchase any land.

p. 11
04

Costs of the appeal

Holding

Costs follow the event; the successful Appellant was awarded costs of the appeal and of the lower court

Reasoning

Under section 27 of the Civil Procedure Act, costs are discretionary but ordinarily follow the event and go to the successful litigant absent exceptional circumstances. The Appellant having succeeded entirely, she was awarded costs of the appeal and the lower court; the dismissed Counter-claim was also dismissed with costs.

p. 11

Legal principles established

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  • Boundary disputes pertaining to registered land fall within the mandate of the Land Registrar under sections 18 and 19 of the Land Registration Act, and courts should not determine such disputes until the Registrar has fixed the boundaries
  • On a first appeal the court must re-consider, re-evaluate and re-analyse the evidence and reach its own conclusions while allowing for the fact it neither saw nor heard the witnesses
  • An appellate court will not interfere with a trial court's exercise of discretion unless it was misdirected and resulted in an erroneous decision or misjustice

Court orders

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  1. 1.Judgment of the trial court delivered on 12th July 2023 set aside and/or vacated, and judgment entered for the Appellant as prayed in her Amended Plaint dated 11th August 2022
  2. 2.The Appellant's prayer (a) of the amended Plaint allowed, with costs to the Appellant
  3. 3.Land Registrar Murang'a and the County Surveyor to visit the disputed parcels within 60 days to assess the boundary dispute and the alleged access road, take measurements of the acreage and prepare a report; any party at liberty to apply
  4. 4.Costs of the boundary exercise to be met jointly by the Appellant and the Respondents
  5. 5.OCS Kirogo Police Station to provide security during the exercise
  6. 6.Orders granted in respect of the Respondents' amended Counter-claim dated August 24, 2022 set aside and/or vacated, and the Counter-claim dismissed entirely with costs
  7. 7.Costs of the appeal awarded to the Appellant, together with costs at the lower court

Authorities

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Legislation

  • Land Registration Actsection 19
  • Land Registration Actsection 18(2)
  • Civil Procedure Actsection 65(1)
  • Civil Procedure Actsection 78
  • Civil Procedure Actsection 27
  • Evidence Actsections 107 and 108
  • Constitutionnot specified (trial court's discretion 'as provided for in the Constitution and statutes')

Cases cited (9)

  • Michael Maluti & 5 others vs Julius Mbau Nzyuko & 2 others
    (2019) eKLR
  • Estate Sonrisa Ltd & Another vs Samuel Kamau Macharia & 2 others
    (2020) eKLR
  • Republic vs Rosemary Wairimu Munene, Exparte Applicant vs Ihururu Dairy Farmers Cooperative Society Ltd
  • Nashon Onyango Otieno vs George Onyango Otieno
    (2021) eKLR
  • Selle & Another vs Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Barnabas Biwott v Thor Kipkorir Bundotich
    [2018] eKLR
  • Mbogo & Another vs Shah
    [1968] EA, p.15
  • Azzuri Ltd vs Pink Properties Ltd
    (2018) eKLR
  • Miller Vs Minister of Pensions
    [1942] 2 ALL ER 372
On appeal from
Chief Magistrate's Court / trial court (Magistrate's Court, Murang'a)
Not stated
Jurisdiction invoked
First appeal under sections 65(1) and 78 of the Civil Procedure Act

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, "Githae v Ngugi & another (Environment and Land Appeal E001 of 2023) [2024] KEELC 6191 (KLR)", Case Analysis (2024). Environment and Land Appeal E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6191/eng@2024-09-10

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