Ongany (Suing as the Personal Representative of the Estate of Juma Ondenge - Deceased) & another v District Land Registrar (Nyando, Nyakach and Muhoroni) & 5 others; Bondo & 2 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 5400 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed ex parte boundary determinations made without hearing landowners, confirming no one can fix your land boundaries without giving you a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte boundary determination process violated fair hearing and fair administrative action rights
Yes - the boundary determination was arrived at through a flawed, irregular and unlawful process violating Articles 47 and 50
Sections 18 and 19 of the Land Registration Act and Regulations 40 and 41 require notice and a hearing by the Land Registrar before boundary determination; they do not permit initiation through a magistrate's ex parte order. The proceedings before the magistrate were ex parte, the Petitioners were not notified or heard, and the 1st Respondent conducted a pure survey based solely on the Registry Index Map without any hearing or inquiry. The deceased owner's estate was also never involved despite there being a procedure to compel beneficiaries to take out a grant.
Whether the magistrate's court had jurisdiction to direct the Land Registrar to determine boundaries
No - the 3rd Respondent had no such jurisdiction
Neither the Land Registration Act nor the 2017 Regulations provide for initiation of boundary determination through a court order; Section 18(2) bars courts from entertaining boundary disputes in the first instance. If the Registrar had refused to act, the proper remedy was an order of mandamus, not an order directing a survey.
Whether the petition offended the doctrine of exhaustion and was time-barred
No - the petition was not bad in law for violating the doctrine of exhaustion given the nature of the complaints
Applying Abidha Nicholus, constitutional relief is available where the alternative remedy is inadequate. Given the nature of the Petitioners' complaints, the ELC could provide the most efficacious redress for the boundary-related reliefs. The criminal-case reliefs failed for want of jurisdiction rather than exhaustion.
Whether the criminal conviction of the Petitioners could be collaterally challenged
The court could not quash the conviction for lack of criminal jurisdiction
The ELC has no criminal jurisdiction and cannot supervise subordinate courts exercising criminal jurisdiction; a conviction is to be challenged on appeal, as the Interested Parties submitted citing Lilian Wairimu Ngatho.
Legal principles established
#- The Land Registrar's boundary determination jurisdiction is special and must follow the hearing procedure in Sections 18 and 19 of the Land Registration Act and Regulations 40 and 41; a court cannot initiate it by ex parte order
- A Registry Index Map shows approximate boundaries only; a boundary determination based solely on the RIM is faulty
- Even where acting on a court order, the Land Registrar remains bound by rules of natural justice and fair administrative action
- Where an alternative remedy is inadequate, the availability of an alternative remedy does not bar constitutional relief
Court orders
#- 1.Declaration that the ex parte order issued by the 3rd Respondent in Nyando SPMC Miscellaneous Application No. 40 of 2018 directing boundary determination between Title Nos. Kisumu/Koguta East/579 and 585 without affording the Petitioners a hearing is unlawful, unconstitutional, null and void
- 2.Order of certiorari removing and quashing the order in Miscellaneous Application No. 40 of 2018
- 3.Declaration that the surveying and placing of beacons between Title Nos. Kisumu/Koguta East/579 and 585 pursuant to the impugned order without affording the Petitioners a chance to be heard was unlawful, unconstitutional, null and void
- 4.Declaration that the ex parte orders in Miscellaneous Application No. E001 of 2021 concerning Title Nos. Kisumu/Koguta East/576 and 585 are unlawful, unconstitutional, null and void
- 5.Order of certiorari removing and quashing the order in Miscellaneous Application No. E001 of 2021
- 6.Declaration that the surveying and placing of beacons between Title Nos. Kisumu/Koguta East/576 and 585 without a hearing was unlawful, unconstitutional, null and void
- 7.The Interested Parties and the 1st and 2nd Respondents are at liberty to commence afresh the boundary determination process in accordance with Sections 18 and 19 of the Land Registration Act and Regulations 40 and 41 of the Land Registration (General) Regulations 2017
- 8.Cancellation of any entries in the land registers or survey records of Title Nos. 585, 576 and 579 regarding the impugned boundary determinations
- 9.Each Party shall bear its costs of the suit
- Jurisdiction invoked
- Constitution of Kenya (petition for enforcement of Bill of Rights); petition transferred from the High Court at Kisumu on 29th November 2022 for want of jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongany (Suing as the Personal Representative of the Estate of Juma Ondenge - Deceased) & another v District Land Registrar (Nyando, Nyakach and Muhoroni) & 5 others; Bondo & 2 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 5400 (KLR)", Case Analysis (2025). Kisumu ELC Petition No. E014 of 2022 (originally High Court Kisumu HC.PET.No.E014 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5400/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.