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ELCPartially AllowedELCC No. 80 of 2021· [2026] KEELC 5491 (KLR)

Truphena Kwamboka Matara & another v Registered Trustees Diocese of Kisii (Nyansiongo Parish) & 5 others

Environment and Land Court of Kenya
21 September 2026
5,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed landowners' fraud and adverse possession claims, finding they had encroached on church land and ordering them to vacate within 60 days.

What this practically means

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Executive summary

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The Plaintiffs, joint registered proprietors since 22nd December 1989 of LR Nyansiongo Settlement Scheme/138 (28 hectares), sued the Registered Trustees Diocese of Kisii, the County Land Registrar, the County Surveyor, two individuals and the Attorney General. They alleged that the First to Third Defendants corruptly and fraudulently interfered with the area index map and created parcels 519, 976, 977, 978 and 979 superimposed over their land, hiving off 5.21 hectares. They sought revocation and cancellation of those titles, declarations that the boundary dealings were illegal and void, deletion of the parcels from the index map, a permanent injunction, or alternatively a declaration of title by adverse possession. The First Defendant counterclaimed, asserting it was the registered proprietor of Scheme/147 (48.7 hectares) which it subdivided into parcels 514-520, and alleging the Plaintiffs had encroached on parcels 519 and 520; it sought a permanent injunction and eviction. The Fourth and Fifth Defendants claimed interests through an exchange of land. The court first determined jurisdiction, holding the suit was not a boundary dispute barred by Section 18(2) of the Land Registration Act because the prayers were manifestly claims for land. It then held that the Plaintiffs pleaded no particulars of fraud and tendered no survey evidence of superimposition; the joint Registrar/Surveyor report of 15th February 2022 confirmed the parcels fell within the original Scheme/147 and that the Plaintiffs had encroached approximately 1.116 hectares into it. The adverse possession claim failed because a registered proprietor cannot claim hostile title against her own land. The counterclaim succeeded, but the court declined to order police enforcement. The Plaintiffs' suit was dismissed with costs of the suit and counterclaim; a permanent injunction issued and the Plaintiffs were given 60 days to vacate, failing which eviction would issue.

Key legal issues

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01

Jurisdiction over boundary disputes under Section 18(2) of the Land Registration Act

Holding

The suit is not a boundary dispute but a claim for land; the Court has jurisdiction

Reasoning

Section 18(2) LRA bars court entertaining of boundary disputes unless boundaries have been determined under the Act. The court examined the Further Amended Plaint and held that the prayers for cancellation of titles and declaration of adverse possession are claims for land. The substance of the pleading, not the word 'boundary', determines jurisdiction. Being a claim for land, Section 18(2) was inapplicable.

p. 16
02

Whether the titles to parcels 519, 976, 978 and 979 should be revoked for fraud, illegality or corrupt scheme

Holding

Plaintiffs failed to prove fraud or superimposition; titles stand

Reasoning

Registered title is protected by Article 40 of the Constitution and Sections 24 and 26 LRA; it can only be impeached on the provisos of Section 26(1)(a) or (b). Fraud requires pleading of particulars and strict proof. No particulars of fraud were pleaded and no survey evidence supported the claim of superimposition. The joint Registrar/Surveyor report of 15th February 2022 confirmed the parcels fall within the original Scheme/147.

p. 20
03

Whether title to the suit land had devolved to the Plaintiffs by adverse possession

Holding

Claim untenable; a registered proprietor cannot claim adverse possession against her own title

Reasoning

Under Sections 7, 13, 17 and 38 of the Limitation of Actions Act, adverse possession requires wrongful dispossession of the rightful owner and hostile assertion of title for 12 years. The Plaintiffs were the joint registered proprietors of the suit property since 22nd December 1989, so they could not assert hostile title against themselves or dispossess themselves.

p. 23
04

First Defendant's counterclaim for injunction and eviction

Holding

Counterclaim proved; injunction and vacatur order granted, minus the police-enforcement limb

Reasoning

The report of 15th February 2022 confirmed the Plaintiffs encroached approximately 1.116 hectares into Scheme/147, with the encroachment lying within Schemes/519 and 520 per maps G and M. The First Defendant therefore proved its entitlement to a permanent injunction and an order to vacate within 60 days. However, the court declined to direct police to enforce the civil order.

p. 23

Legal principles established

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  • Whether a suit is a boundary dispute barred by Section 18(2) LRA is determined by the substance of the pleadings and the relief sought, not by mere mention of the word 'boundary'
  • A registered proprietor cannot obtain title to her own land through adverse possession
  • Fraud must be pleaded, particularised and strictly proved to a standard higher than balance of probabilities; fraud cannot simply be inferred from the facts
  • Courts should not ordinarily involve the police in the enforcement of civil orders

Court orders

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  1. 1.The Plaintiffs' case is dismissed
  2. 2.Judgment entered for the First Defendant against the Plaintiffs jointly and severally: a permanent injunction restraining the Plaintiffs, their agents and servants from entering, occupying, trespassing on, claiming title to or dealing with LR No Nyansiongo/Settlement Scheme/514 to 520, being subdivisions of the original Nyansiongo/Settlement Scheme/147, in any manner inconsistent with the First Defendant's rights or interests
  3. 3.The Plaintiffs, their agents and workers to vacate the encroached section of Nyansiongo/Settlement Scheme/519 and 520 within 60 days of delivery of judgment, in default of which an eviction order shall issue
  4. 4.The Plaintiffs shall bear costs of the suit and the counterclaim
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (court heard the suit as the court of first instance; jurisdiction over the land dispute was the central question)

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, "Truphena Kwamboka Matara & another v Registered Trustees Diocese of Kisii (Nyansiongo Parish) & 5 others", Case Analysis (2026). ELCC No. 80 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5491/eng@2026-09-21

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