Kerio View Investments Company Limited v Chief Land Registrar & 4 others; Hillten Company Limited & another (Interested Parties) (Environment and Land Petition E006 of 2021) [2025] KEELC 6844 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Res judicata
The Petition is not barred; the earlier ELC 636 of 2012 was dismissed for want of prosecution, not on the merits, and the Land Registrar's determination is administrative, not judicial
Section 7 of the Civil Procedure Act requires a prior matter heard and finally determined on the merits by a competent court. ELC 636 of 2012 was dismissed for want of prosecution and the court never pronounced on the boundary determination. The Registrar's decision is administrative and challengeable for procedural impropriety, so it cannot found res judicata.
Lawfulness of the Land Registrar's boundary determination
Both the 2011 and 2017 processes proceeded with notice and site visits; the Petitioner did not demonstrate illegality, but both official witnesses conceded a resurvey is needed to correct the map's erroneous escarpment position
Sections 18 and 19 LRA prescribe notice, hearing, survey and registration for fixing boundaries. The reports of 30th May 2011 and 6th April 2017 followed notice and site visits. The 2017 report lacked findings on how the boundary was fixed, and DW1 and DW2 conceded discrepancies between the mutation and the ground, warranting a resurvey.
Encroachment
The evidence, including concessions by DW1 and DW2, shows technical misalignment rather than deliberate unlawful encroachment by the 1st Interested Party
The Petitioner bore the burden under section 107(1) of the Evidence Act. PW2's evidence, the court's site visit and concessions by the official witnesses showed discrepancies between the mutation, RIM and boundary features. The court concluded the dispute is one of technical misalignment, not deliberate encroachment, and opted to restore clarity by resurvey rather than assign blame.
Entitlement to constitutional reliefs
The dispute is essentially a private boundary dispute; constitutional invocation was unnecessary and all prayers declined save the resurvey directions
Though presented as a constitutional petition anchored on Articles 40 and 47, the grievance is a question of fact and title demarcation within the province of the Land Registrar under sections 18 and 19 LRA. Following the anti-constitutionalisation line of authority, the court declined the constitutional reliefs but, in the interest of justice, granted limited relief by ordering a supervised resurvey.
Legal principles established
#- Res judicata does not apply where the earlier suit was dismissed for want of prosecution and never heard on its merits
- A Land Registrar's boundary determination is an administrative act, not a judicial decision, and is amenable to challenge for procedural impropriety
- Sections 18 and 19 of the Land Registration Act vest primary responsibility for boundary determination in the Land Registrar before the court may be seized of the matter
- Courts must guard against constitutionalising ordinary private disputes where adequate statutory remedies exist
Court orders
#- 1.A re-survey of land parcels Irong/Iten/2742 and Irong/Iten/2743 be undertaken by a Land Registrar and Surveyor other than the County Surveyor Elgeyo Marakwet, designated by the Chief Land Registrar and the Director of Surveys respectively within sixty (60) days from the date of the judgment
- 2.The re-survey shall be conducted transparently, in the presence of both parties or their duly appointed representatives, guided by the original mutation form, the Registry Index Map and the permanent physical features on the ground
- 3.The parties are at liberty to engage their own private surveyors to accompany the Government Surveyor during the re-survey exercise
- 4.A comprehensive report shall be filed before this Court within Fourteen (14) days of the survey's completion
- 5.The costs of the survey shall be shared equally between the petitioner and the 1st Interested Party
- 6.All other prayers in the Petition are declined
- Jurisdiction invoked
- Constitution of Kenya, 2010, Articles 40, 47 and 50 (petition alleging violations); Land Registration Act, 2012, sections 18 and 19 (boundary jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kerio View Investments Company Limited v Chief Land Registrar & 4 others; Hillten Company Limited & another (Interested Parties) (Environment and Land Petition E006 of 2021) [2025] KEELC 6844 (KLR)", Case Analysis (2025). Petition (Amended Petition dated 18th July 2022), formerly ELD ELC No. 636 of 2012 (HCCC No. 112 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6844/eng@2025-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.