Kibugu v Maina & 6 others (Environment & Land Case 939 of 2017) [2025] KEELC 4534 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved encroachment by the Defendants on his parcel and the access road
No. The survey reports showed no encroachment by the 1st, 2nd and 4th Defendants, and the narrow access resulted from the faulty subdivision of parcel 28017, not from the Defendants' actions.
The Land Registrar's report of 27th September 2019 and the survey reports showed the 9-metre access road was never created during the subdivision of parcel 28017; the surveyor used the excess acreage as the road, leaving only 4 metres. The earlier survey report stated the boundaries of parcels 28018, 28019 and 28020 should remain as they are since there was no evidence of encroachment. The Plaintiff did not discharge the burden of proof on a balance of probabilities against the 1st and 2nd Defendants, and the 4th Defendant's parcel never encroached.
Whether the court could determine the boundary dispute directly
The court deferred to the Land Registrar's statutory mandate under Section 18(2) of the Land Registration Act and gave credence to the Registrar's and Surveyor's reports.
Section 18(2) of the Land Registration Act bars the court from entertaining actions relating to boundaries of registered land unless the boundaries have been determined under that section. Since the Registrar and Surveyor had conducted a site visit and filed reports (27th September 2019 and 12th June 2024), the court was mandated to give credence to those reports, which traced the dispute to the defective subdivision of parcel 28017 rather than to encroachment by the Defendants.
Liability of the 4th Defendant
The 4th Defendant's parcel 28020 did not encroach on the Plaintiff's property and the suit against him was dismissed.
Both the Land Registrar and the Surveyor confirmed in their evidence and reports that parcel 28020 had not encroached on the access road or on the Plaintiff's parcel. The court found it clear that parcel 28020 in no way encroached on the Plaintiff's property and accordingly dismissed the suit against the 4th Defendant.
Legal principles established
#- The court cannot entertain boundary disputes over registered land unless boundaries have first been determined by the Land Registrar under Section 18(2) of the Land Registration Act
- A party who alleges encroachment must prove it on a balance of probabilities, and mere disagreement with an official survey report is insufficient
Court orders
#- 1.The suit against the 4th Defendant is dismissed
- 2.The Plaintiff's suit is dismissed in its entirety
- 3.Each party to bear own costs except the 4th Defendant who is entitled to costs from the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; Section 18(2) of the Land Registration Act considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibugu v Maina & 6 others (Environment & Land Case 939 of 2017) [2025] KEELC 4534 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4534/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.