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ELCDismissedNot stated in the judgment· [2024] KEELC 6834 (KLR)

Meta & another v Ngugi (Sued as the Administrator of the Estate of Ngugi Mwathi Deceased) (Environment and Land Case E023 of 2022) [2024] KEELC 6834 (KLR)

Environment and Land Court
16 October 2024
3,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Thika court dismissed landowners' attempt to revive their boundary dispute, ruling that registry documents anyone could obtain don't count as new evidence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (Eboso J) determines the plaintiffs' notice of motion dated 31/1/2023 seeking review, under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, of the court's ruling of 1/11/2022 striking out their suit for want of jurisdiction on the ground that boundary disputes must first be determined by the Land Registrar under Section 18 of the Land Registration Act. The applicants contended they had discovered new and important evidence - a 33-year lease dated 28/7/1970, an official search of 30/1/2001, registration of Plot No. 27 as Kabete/Kibichiku/393/27 and issuance of a certificate of lease on 6/8/1970 - showing that the boundaries of the plot had already been fixed before the striking-out ruling. The defendant, whose late father (the original defendant) died on 15/2/2023 and was substituted by his personal representative, opposed the application, arguing the evidence was always available and that registration does not amount to a boundary determination by the Land Registrar. The court applied the settled criteria for review from Sanitam Services, Otieno Ragot & Company and the Ex-parte Appollo Mboya principles, and held that the exhibited documents were always obtainable with due diligence from the Lands Registry, and that in any event the applicants did not demonstrate a boundary determination by the Land Registrar noted in the register as required by Sections 18 and 19 of the Land Registration Act. The application dated 31/1/2023 was dismissed with costs to the applicants (plaintiffs).

Key legal issues

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01

Whether the applicants satisfied the criteria for review under Section 80 of the Civil Procedure Act and Order 45 rule 1

Holding

The application failed because the alleged new evidence (the 1970 lease and 2001 official search) was always available in the Lands Registry and obtainable with due diligence, and the applicants did not demonstrate a boundary determination by the Land Registrar noted in the register

Reasoning

Review lies on discovery of new and important matter or evidence not obtainable with due diligence, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The lease dated 28/7/1970 and the search issued in 2001 were documents in the parcel file and registry, obtainable on payment of statutory fees. Further, registration of a parcel does not amount to a boundary determination by the Land Registrar as contemplated by Sections 18 and 19 of the Land Registration Act.

p. 5
02

Whether registration of Plot No. 27 as Kabete/Kibichiku/393/27 and issuance of a certificate of lease established that boundaries had been fixed

Holding

Registration does not equate to a boundary determination; the applicants did not show that a boundary determination had been made by the Land Registrar and noted in the register prior to filing suit

Reasoning

Sections 18 and 19 of the Land Registration Act require that, except where the register notes that boundaries have been fixed, cadastral maps and filed plans indicate only approximate boundaries, and courts may not entertain boundary disputes unless boundaries have been determined under the section. The applicants tendered no evidence of a Registrar's determination or a note in the register.

p. 5

Legal principles established

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  • A party seeking review must show discovery of new and important matter or evidence which, after exercise of due diligence, was not within its knowledge and could not be produced earlier; mere availability of documents in a public registry negates the claim of new evidence
  • In a boundary dispute concerning registered land, the first port of call is the Land Registrar; courts are precluded from entertaining boundary disputes absent a determination by the Land Registrar noted in the register

Court orders

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  1. 1.The application dated 31/1/2023 is dismissed for lack of merit
  2. 2.The applicants will bear costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 45 rule 1
  • Land Registration ActSections 18 and 19
  • Survey ActCap. 299

Cases cited (5)

  • Sanitam Services (E.A.) Limited v Rentokil (K) Limited & another
    [2019] eKLR
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex-parte Appollo Mboya
    [2019] eKLR
  • Azzuri Limited v Pink Properties Limited
    Civil Appeal 93 of 2017 [2018] KECA 392 (KLR)
  • Kimani Wanyoike v Electoral Commission
    Civil Appeal No. 213 of 1995 (UR)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules (review of the court's own ruling)

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, "Meta & another v Ngugi (Sued as the Administrator of the Estate of Ngugi Mwathi Deceased) (Environment and Land Case E023 of 2022) [2024] KEELC 6834 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6834/eng@2024-10-16

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