Kudate v Lanke & 3 others

He contends that he has occupied and developed the said land continuously and peacefully for over two decades, with no boundary disputes or alterations until 2015. 4. The Plainti alleges that on 7th August 2015, the 1st Defendant, in collusion with the 2nd and 3rd Defendants namely, the Narok County Land Surveyor and the Narok County Land Registrar, respectively unlawfully entered upon his land and conducted a purported resurvey exercise, during which beacons were planted and a portion of approximately 23 acres was wrongfully taken from his parcel and attributed to the 1st Defendant’s parcel. The Plainti maintains that no summons or notice was served upon him, and he was neither present nor consulted during the exercise, contrary to mandatory legal provisions under the Land Registration Act and the Land Adjudication Act. 5. In support of his position, the Plainti produced documentary evidence including the title deed, search certicate, OB report (Narok Police Station OB No. 23/9/8/2015), and a survey report by a licensed private surveyor, PW3 (Bibiana Omalla). 6. The Plainti contends that the 1st Defendant’s actions were malicious, unlawful, and procedurally defective, and that the purported resurvey and alteration of boundaries violated his constitutional rights under Article 40 (Protection of Property) and Article 50(1) (Right to Fair Hearing) of the Constitution of Kenya, 2010. 7. He prays for orders to declare him the rightful owner of the suit land, for a permanent injunction restraining all Defendants from interfering with his land, and for dismissal of the 1st Defendant’s counterclaim with costs. C. The 1st Defendant’s Case and Counterclaim 8. The 1st Defendant, asserts that he is the rightful owner of LR No. CIS-Mara/Oleleshwa/59, measuring approximately 40.17 acres, which directly borders the Plainti’s land. He alleges that the Plainti, sometime around 2007, encroached upon a portion of his parcel, occupying approximately 10 acres, and began to cultivate, graze animals, and excavate soil for dam construction on that portion without his consent. 9. The 1st Defendant submits that due to the overlapping boundaries and suspicions of encroachment, he initiated multiple requests for boundary verication through the 3rd Defendant (Narok County Land Registrar) and the 2nd Defendant (Narok County Surveyor) between 2010 and 2015. 10. He alleges that summons and notices for these surveys were duly served upon the Plainti on several occasions, sometimes personally by the 1st Defendant, other times through local administrators or neighbors but the Plainti refused to attend or cooperate, allegedly because he was aware that he had encroached on the land. 11. The 1st Defendant further claims that the boundary verication surveys, particularly the one conducted on 7th August 2015, conrmed that the Plainti had indeed encroached onto parcel No. 59. This nding was later reinforced by a court-ordered survey supervised by the 2nd and 3rd Defendants following an order by Hon. Lady Justice Gacheru. The survey report of 2nd November 2017 allegedly conrmed that the Plainti was in unlawful occupation of land marked “EFGH” in the sketch plan an area measuring approximately 10 acres belonging to the 1st Defendant. 12. Consequently, the 1st Defendant led a counterclaim seeking the following orders: A declaration that the boundaries of parcel No. 59 are as conrmed by the survey of 7th August 2015; An order that the Plainti vacates the encroached portion; Mesne prots for wrongful occupation; An account of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22659/eng@2023-03-22 2

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proceeds of sale of soil and trees allegedly excavated and sold by the Plainti from the encroached land; and Costs of the suit and counterclaim. 13. The 1st Defendant maintains that the Plainti’s title does not entitle him to exceed the registered boundaries and that the Plainti’s claims are a result of his own wrongdoing, having deliberately refused to participate in lawful boundary verication proceedings. He relies heavily on Sections 18 and 19 of the Land Registration Act, arguing that the 3rd Defendant had the legal mandate to determine the true boundaries and did so fairly. D. Issues for Determination 14. It is established law that the issues for determination in a suit generally ow from either the parties’ pleadings or as framed by them for the court’s determination; see the Court of Appeal decision in the case of Galaxy Paints Co. Ltd-vs-Falcon Grounds Ltd (2000) 2 EA 385. 15. I have carefully and anxiously considered the parties’ respective pleadings, evidence and the submissions including the issues framed therein. Order 15 Rules 1 and 2 of the Civil Procedure Rules, 2010 (The Rules herein) provide for framing of issues and materials from which issues may be framed in a suit respectively. 16. In the foregone, I am of the considered view that the issues for determination in this suit boil down toa. Whether the Plainti was lawfully allocated and is the rightful owner of LR No. CIS-Mara/ Oleleshwa/62; b. Whether the Plainti encroached onto LR No. CIS-Mara/Oleleshwa/59 and whether the surveys conducted in 2015 and 2017 were valid. c. Whether the Plainti's rights under Article 40 and Article 50(1) of the Constitution were violated; d. Whether the 1st Defendant is entitled to the reliefs sought in the counterclaim, including mesne prots and an account of proceeds; e. Who should bear the costs of the suit. E. Legal Analysis and Disposition Issue 1: Whether the Plainti was lawfully allocated and is the rightful owner of LR No. CIS-Mara/ Oleleshwa/62 17. The Plainti asserts ownership of LR No. CIS-Mara/Oleleshwa/62 by virtue of allocation through the adjudication process of the Ngaramiran Group Ranch in 1996 and issuance of title in 1997. He produced a valid title deed, an ocial land search, and corroborative testimony from two independent witnesses, including a licensed surveyor (PW3) and a neighbor (PW2), all conrming long-standing possession, occupation, and use of the land since its adjudication. 18. Under Section 26(1) of the Land Registration Act (No. 3 of 2012), a title issued by the Registrar upon registration of a person as the proprietor is to be taken by the court as prima facie evidence that the person is the absolute and indefeasible owner, subject only to proof of fraud, misrepresentation, or illegality, and only if the registered proprietor participated in the same. 19. In this case, no evidence of fraud or illegality in the Plainti’s acquisition of title was presented by any of the Defendants. The 1st Defendant admitted that he never lodged any formal complaint during or https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22659/eng@2023-03-22 3

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immediately after the adjudication process in 1996. Furthermore, the Plainti's witnesses conrmed that all members of the Group Ranch were invited to the adjudication process and that there were no objections raised. This lends credibility to the assertion that the Plainti was lawfully allocated his land and has held it peacefully for nearly three decades. 20. In Republic v Land Registrar Kili & another Ex-parte Daniel Ricci [2013] KEHC 1990 (KLR) the court held that once a title deed is issued in accordance with the law, the registered proprietor's rights are protected, and any allegations challenging ownership must meet the threshold established under Section 26(1) of the Land Registration Act. 21. Accordingly, the Plainti has demonstrated lawful and protected ownership of parcel LR No. CISMara/Oleleshwa/62. Issue 2: Whether the Plainti encroached onto LR No. CIS-Mara/Oleleshwa/59 and whether the surveys conducted in 2015 and 2017 were valid. 22. The 1st Defendant alleges that the Plainti unlawfully entered and occupied approximately 10 acres of his land, being part of LR No. CIS-Mara/Oleleshwa/59. In support of this claim, he relies on two surveys: the rst conducted on 7th August 2015, and the second undertaken on 7th September 2017, pursuant to orders issued by this Court on 24th February 2017. 23. The 2015 survey was instigated by the Narok County Land Registrar and Surveyor following complaints lodged by the 1st Defendant. The Plainti disputes having been served with notice of the survey or participating in it. While the evidence indicates that local administrators, including the Assistant Chief and Chief, were present and that summonses were issued, there is no conclusive proof of service on the Plainti. This procedural deciency casts doubt on the reliability and weight of the 2015 exercise. 24. The 2017 survey, however, was of a dierent character. It was undertaken under the direction and supervision of the Court, following orders issued by Lady Justice Gacheru. Both parties were duly notied, the Plainti was present, and he appointed a private surveyor to attend on his behalf, though the surveyor did not testify in these proceedings. This participation remedied the procedural shortcomings noted in the earlier survey. 25. The results of the 2017 survey were formally conveyed to the Deputy Registrar by letter dated 2nd November 2017. The report rearmed that the Plainti had indeed encroached upon approximately 10 acres of LR No. 59, specically delineated as points E-F-G-H on the accompanying sketch map. 26. This survey complied with Sections 18 and 19 of the Land Registration Act. Section 18(2) provides: “ The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section." Section 19(1) states: "If the Registrar considers it desirable to indicate on a eld map or the Registry Index Map the line of any boundary or part of a boundary, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and x the boundaries, and shall, after giving the persons so notied an opportunity to be https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22659/eng@2023-03-22 4

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heard, cause a survey to be made and shall then make and sign a plan showing the xed boundaries and cause alterations to be made in the Registry Index Map accordingly." 27. The 2017 court-supervised survey complied with these provisions and thereby cured any procedural irregularities associated with the earlier 2015 exercise. Although the Plainti’s private surveyor later prepared a report asserting that no encroachment had occurred and attributing inconsistencies to general cadastral errors, this report did not specically challenge the ndings of the 2017 courtsupervised survey. Nor did the Plainti le any formal objection to the outcome of the survey or seek judicial review of the ndings. 28. The Court accords greater evidentiary weight to the 2017 survey. It was judicially sanctioned, involved both parties, and was executed by public ocers acting under statutory mandate. In Wainaina v Murai & Others [1976–80] KLR 283, the Court held that where proper administrative and legal procedures are followed in determining boundaries, and both parties are heard, such ndings are binding unless successfully challenged on appeal or review. 29. In the circumstances, the Court is satised that the Plainti did indeed encroach onto approximately 10 acres of LR No. CIS-Mara/Oleleshwa/59, as established by the 2017 survey. Accordingly, the Court nds and holds that while the Plainti is the registered proprietor of LR No. CIS-Mara/Oleleshwa/62, he unlawfully extended his occupation into part of LR No. 59, which belongs to the 1st Defendant. Issue 3: Whether the Plainti ’s constitutional rights under Article 40 and Article 50(1) of the Constitution were violated 30. The Plainti contends that the 2015 survey was carried out without notice to him, without his participation, leading to what he characterises as a unilateral deprivation of his land rights. On that basis, he claims that his constitutional rights under Article 40 (right to property) and Article 50(1) (right to a fair hearing) of the Constitution were violated. 31. Article 40(1) of the Constitution provides that: “ Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— 32. (a) of any description; and (b) in any part of Kenya.” Further, Article 40(2)(a) stipulates: “ Parliament shall not enact a law that permits the State or any person— (a) 33. to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description.” Article 50(1) guarantees the right to a fair hearing, stating: “ Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 34. The 2015 survey conducted on 7th August 2015 arose from complaints made by the 1st Defendant and was initiated by the Narok County Land Registrar and Surveyor. While it is not in dispute that local https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22659/eng@2023-03-22 5

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administrators were present, including the Chief and Assistant Chief, the record does not conclusively demonstrate that the Plainti was formally notied or had an opportunity to participate in that exercise 35. In the absence of clear proof of notice and engagement of the Plainti in the 2015 process, concerns about procedural fairness may reasonably arise. This is especially pertinent in the context of land boundary matters, where administrative actions that aect proprietary rights ought to be undertaken with adherence to principles of fair administrative action under Article 47 of the Constitution. That said, the Court does not nd it necessary to declare the 2015 survey invalid, but notes that its probative value is limited, particularly when assessed against constitutional standards of notice and participation. 36. The procedural and constitutional issues raised in respect of the 2015 survey were, however, addressed and resolved by the subsequent court-supervised survey conducted on 7th September 2017 pursuant to orders made on 24th February 2017. This second survey was carried out with judicial oversight, proper notice, and the participation of both parties. The Plainti was present and was represented by a private surveyor, who attended the exercise, although he did not testify in these proceedings. 37. In Tamrock Investments Limited v Registrar of Titles & 2 others [2020] eKLR the Court held that: “ The court is therefore in agreement with the petitioner and nds that the revocation of the impugned title without giving the petitioner a hearing and without a court order was unprocedural.” 38. Applying the above principle, the Court observes that had the 2015 survey been the sole basis for altering boundaries or aecting the Plainti’s rights, it might have implicated his constitutional protections under Articles 40(2)(a) and 50(1). However, that is not the case here. 39. In the present matter, no adverse legal action was taken solely on the basis of the 2015 exercise. Instead, the boundary determination that now forms the basis of the Court’s ndings was reached following the 2017 court-supervised survey, which was carried out with procedural fairness, legal authority, and mutual participation. 40. Accordingly, the Court nds and holds that while there were initial concerns relating to the 2015 survey, these were subsequently addressed in 2017. The nal boundary determination now before the Court was the product of a process that was transparent, judicially sanctioned, and procedurally sound. As such, the Court is not persuaded that there is any ongoing or unremedied violation of the Plainti’s rights under Articles 40, 47, or 50(1) of the Constitution. Issue 4: Whether the 1st Defendant is entitled to the reliefs sought in the counterclaim 41. The counterclaim prays for a declaration of ownership over the encroached portion, an order compelling the Plainti to vacate, mesne prots for unlawful occupation, an account of proceeds allegedly derived from excavation of soil and cutting of trees, and costs. 42. The legal basis for an eviction order is established where a party proves that another has unlawfully occupied land to which they hold lawful title. In this case, the 2017 court-supervised survey conclusively conrmed that the Plainti encroached upon approximately 10 acres of LR No. CISMara/Oleleshwa/59. This survey was conducted lawfully, with notice and participation of both parties, and is thus a valid basis for granting eviction. The Court accordingly nds that the 1st Defendant is entitled to an order directing the Plainti to vacate the said portion. 43. Regarding mesne prots, the Court of Appeal in Kenya Hotel Properties Ltd v Willesden Investments Ltd [2007] eKLR held that such claims constitute special damages, which must be specically https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22659/eng@2023-03-22 6

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pleaded and strictly proved. The 1st Defendant alleged commercial exploitation by the Plainti through excavation and tree cutting, but did not produce any evidence—such as receipts, valuations, photographs, or witness accounts—to quantify or substantiate the alleged loss. The Plainti denied these claims, and no rebuttal evidence was led. 44. Similarly, the claim for an account of proceeds fails for want of proof. While a court may direct an account where unjust enrichment or duciary obligations are established, such equitable relief must be supported by concrete facts, which are lacking in this case. The Defendant did not establish any sale, volume, or value of the materials allegedly removed. 45. Consequently, the Court nds that the only sustainable remedy is an eviction order against the Plainti in respect of the approximately 10 acres encroached upon. The claims for mesne prots and account of proceeds are dismissed for lack of evidentiary support. Costs 46. Section 27(1) of the Civil Procedure Act provides that costs follow the event, unless the Court directs otherwise. Both parties have experienced partial success and partial failure. The Plainti established his lawful ownership of LR No. CIS-Mara/Oleleshwa/62 and challenged aspects of the 2015 survey, but was ultimately found to have encroached onto LR No. 59. The 1st Defendant successfully established encroachment and secured eviction, but failed to prove claims for damages or prots. 47. In light of the mixed outcome, and acknowledging that this dispute was signicantly shaped by systemic cadastral errors rather than deliberate misconduct, the Court directs that each party shall bear their own costs. F. Final Orders and Disposition Having carefully considered the pleadings, the evidence adduced by both parties, expert reports, applicable statutory provisions, and constitutional principles, and having addressed each issue for determination in detail, the court now issues the following nal orders: a. It is hereby declared that the Plainti, Lucas Ntalemea Ole Kudate, is the lawful and absolute proprietor of LR No. CIS-Mara/Oleleshwa/62, and that his title thereto remains valid and protected under Article 40 of the Constitution and Section 26(1) of the Land Registration Act. b. It is further declared that the Defendant has unlawfully encroached onto approximately 10 acres of LR No. CIS-Mara/Oleleshwa/59, as conrmed by the court-supervised survey conducted on 7th September 2017 pursuant to the orders issued on 24th February 2017. c. The Defendant is hereby ordered to vacate the said encroached portion within ninety (90) days from the date of this judgment. In default of compliance, the 1st Defendant shall be at liberty to apply for eviction orders to enforce this judgment. d. The 1st Defendant’s claim for mesne prots and an account of proceeds is hereby dismissed for want of proof. e. Each party shall bear their own costs of the suit and counterclaim. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THE 22ND DAY OF MARCH, 2023. MOHAMMED N. KULLOW https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22659/eng@2023-03-22 7

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JUDGE Judgement delivered in the presence of: Nduati holding brief for Nduga for the Plainti N/A for the Defendants Timothy. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22659/eng@2023-03-22 8

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