Muthoka v Kilunda & 8 others

said to have cut down trees, harvested rocks, and created an access road from the main road to a place known locally as Ndui Rock. 2. Ndui Rock is what ocial records show as land parcel No. 1068. Due to the respondents’ actions, the plainti pleaded that he incurred expenses and loss connected to or arising from loss of trees, vegetation, destruction of fence, engagement of a land surveyor, involvement of Kenya Forest Service, and seeking legal counsel. 3. In the lower court, the plainti sought various orders including a declaration that parcel No. 1066 is owned by him; a permanent injunction restraining the respondents and/or others through them or at their behest from trespassing, encroaching, fencing, developing, constructing on or interfering in any other way with parcel No. 1066 or committing any waste on it; an order compelling the respondents to block the road they had created; and costs of the suit. 4. The respondents led their defences and denied the appellant’s claim. More particularly, they denied that the appellant owns parcel No. 1066 and/or that they had encroached on it. They faulted the appellant for not disclosing to court that parcel No. 1066 shares a road of access with parcels No’s 1069 and 1068. On parcel No. 1068, a water project meant to benet the local community is said to be under construction. It is funded by a well-wisher but the appellant is hindering or impeding the good work by fencing o parcel No. 1068 where the project is being undertaken. 5. A survey conducted is said to have shown that the appellant has completely fenced o parcels No’s 1068 and 1069. The 7th respondent led his own separate defence and made reference to the fencing mentioned in the defence of the other respondents. He averred that the appellant was ordered to remove the fence but he refused. 6. The appellant made a reply to the defences made in the lower court and he reiterated that he is the owner of parcel No. 1066. He further denied the other averments made in the defences led by the respondents. 7. The lower court heard the matter. The plainti is shown to have given his evidence on 7.12.2022. After testifying, he closed his case. Thereafter, the defence said started giving evidence on 1.3.2023 and at the end of it all, the court visited the site on 8.3.2023. 8. Both sides led submissions later and the court delivered its judgement on 22.5.2023. The appellant’s suit was dismissed and that is what provoked this appeal. 9. Five (5) grounds form the basis of the appeal. They are as follows: 1. That the learned trial magistrate erred and misdirected himself in law and fact by dismissing the plainti’s case with costs, against the appellant without giving the appellant a fair hearing on matter placed before court on that particular day. 2. That the learned trial magistrate erred and misdirected himself in law and fact by, failing to appreciate that the case brought before court was particularly about boundary and ownership of land parcel No. 1066. 3. That the learned trial magistrate erred and misdirected himself in law and fact by, failing to appreciate that in view of the fact that the agreement of sale of land, title deed clearly and evidently showed that the parcel of land belonged to one Adam Muthoka and supported by copy of Land Registrar’s map. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18688/eng@2025-05-29 2

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4. 5. That the court did not consider the letter dated 28/9/2021 that shows enclosement (?) of 1061 to 1066 and no access road between 1066 and 1068 from the land map. a. Court did not consider the properties that were destroyed on 20/8/2021 “eg” wire, nails, posts, labour work etc. b. Court did not consider to send government surveyor to prove the enclossement (?) and trespasses of 1069 to 1066 and unmarked access road between 1066 and 1068 which is not in registrar’s map. c. Court did not consider destruction of properties without any court order. That the learned trial magistrate erred in law and in fact in disregarding the appellant’s defence. 10. The appeal was canvassed by way of written submissions. The appellant’s submissions were led on 2/10/2024. According to the appellant, denial of fair hearing (ground 1) to him consisted in the lower court failing to adequately consider his arguments and evidence relating to the boundary dispute and ownership of land parcel No. 1066. He also accused the court of failing to consider a letter showing “enclosure” ((?) – should be encroachment) “of parcels 1069 and 1066 and the absence of an access road between parcels 1068 and 1066 as depicted on the land map.” 11. The lower court was also said to have failed to consider destruction of property on the land, the necessity of sending a surveyor to the land to verify encroachment, and/or the need to establish the proper place of access road. Further, it was the appellant’s position that there was a discrepancy between ground measurements of parcels No’s 1066 and 1069 and what was indicated on the map. The court was faulted for failing to consider this. 12. The appellant urged for “a consensual resolution to the boundary disputes that have arisen…” believing “that it is our mutual best interest to nd a peaceful and amicable solution to the issues without resorting to costly legal proceedings.” 13. Further, the appellant submitted that he is seeking the following reliefs, which I mention here ippssissma verba: 1. Reversal of the lower court’s decision. 2. Dismissal of the case. 3. Declaration that the appellant is the rightful owner of parcel No. 1066. 4. That all parties bear their own costs. 5. Consent agreement is a peaceful and amicable resolution to the boundary disputes between the neighbouring parcels. It is worthy to note that in the memorandum of appeal, the appellant is seeking the following reliefs: a. That this appeal be allowed and the judgement of the trial subordinate court be set aside with costs. b. The costs of this appeal be borne by the respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18688/eng@2025-05-29 3

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c. Such further or other orders as this Honourable court may deem just and expendient. 14. The respondents on the other hand submitted that the matter is essentially a boundary dispute. There was then an overview of both the pleadings and proceedings in the lower court. The respondents emphasized that the dispute is essentially a boundary dispute triggered by the opening of an unpaved road of access between parcels No’s 1066 and 1069. The appellant himself was said to admit that the problem relates to boundary. But the appellant was faulted for resisting attempts to refer the matter to the Land Registrar for resolution. Reference was made to Section 18 (2) of the Land Registration Act No. 3 of 2012 which deprives the court of jurisdiction to entertain a boundary dispute unless the Land Registrar has rst handled it. The position taken is that it is the Land Registrar who has jurisdiction to handle the dispute. 15. On the issue of injunction, it was pointed out that the appellant was duty bound to demonstrate that he had a prima facie case with probability of success, that he will suer irreparable damage and/or that he deserves the order on a balance of convenience. The appellant was said to have failed to demonstrate any of these requirements. 16. The following cases were referred to and quoted as deemed appropriate. Cecilia Murango Mwenda & 6 others –vs- Isaac Kimathi Ikunga [2019] eKLR , Willis Ocholla -vs – Mary Ndege [2016] eKLR and Giella –vs- Cassman Brown [1973] EA 358. 17. I have considered the appeal as led, the rival submissions, and the entire court record generally. The issue before me for determination is whether the appellant has demonstrated the merits of his appeal. This is a rst appeal and the approach required in handling the matter is as stated in Selle –vsAssociated Motor Boat Company [1968] EA 123 where Sir Clement De Lestang V.P. stated as follows: “ This court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect. In particular, this court is not bound necessarily to follow the trial judge’s nding of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” This is the same position to be gleaned from the case of Seascapes Ltd. –vs- Development Finance Company of Kenya Ltd. [2009] KLR 384. 18. A look at the lower court record shows that none of the respondents is claiming ownership of land parcel No. Mutomo/Kawelu/1066. With ownership not being a contested issue, the entire matter then becomes a dispute relating to boundary, with the boundary itself being the road of access from the main road to parcel No. 1068 (Ndui rock). The whole stretch of that road as it appears on the map marks the boundary between parcel No. 1066 and 1069, with both parcels being on the opposite side of the other. As well put by the appellant himself, this access road does not in any way mark the boundary between parcels No. 1068 and any of the two other parcels. In my considered view, with the issue of ownership of parcel No. 1066 not being contested, the appellant’s prayers in the lower court for declaration that parcel No. 1066 is his own becomes redundant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18688/eng@2025-05-29 4

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19. In the judgement issued by lower court it is appreciated well that problem between the disputing parties essentially relates to boundary. The lower court stated as follows: “ … The plainti claim is entirety about a boundary dispute with his neighbor. He is apprehensive and wants a surveyor on the ground to establish where an access road which he says illegally cuts through his land should be.” The applicable law is then captured in the same judgment as follows: “ There are established mechanisms on how land boundary disputes should be addressed. Section 18 (2) of the Land Registration Act directs where a proprietor of a registered land with a boundary dispute should start before moving to court. The Land Registrar should hear the dispute rst before an aggrieved party escalates the matter to court and there is a reason for that legislation.” 20. As the plainti did not refer his dispute to the Land Registrar rst, his suit was found to be incompetent. My considered view is that the lower court cannot be faulted for taking this position. It was simply following the law. The lower court was bereft of jurisdiction to handle the matter without the matter rst being handled by the Land Registrar. There are various judicial pronouncements arming this legal position. In Azzuri Limited -vs- Pink Properties Limited [2018] eKLR the court observed thus: “ This means that under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution… … From this analysis of the law, it should be clear from the above that, we are in agreement with the learned judge’s conclusion that the dispute ought to have been heard by the Land registrar as stated in the statute. Jurisdiction is everything. It has been said many times before, that, without it a court has no powers to make one more step, irrespective of the strength and nature of evidence in the parties possession.” 21. This same position was espoused in the case of George Kamau Macharia -vs- Dexka Limited [2019] eKLR where the court stated: “ From the above provisions of the law, it is manifestly clear that the above section gives the mandate to the Land Registrar to resolve boundary disputes. Registry Index Map (RIM) only indicates approximate boundaries and the approximate situation on the ground. Even if the court was to hear and determine this matter, it will still require the input of the Land Registrar. The framers of Section 18 (2) of the Land Registration Act placed this matter before the Land Registrar who has the technical advice and resources to ascertain the boundaries. It is trite law that where the law has given a legal obligation to a department of government, it is important for the court to let that department proceed to meet its legal obligations. In this case the oce of the Land Registrar is mandated to deal with the general boundary dispute rst before the same is escalated to the court. It is the view of this court that the dispute is prematurely before the court.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18688/eng@2025-05-29 5

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22. The position that a person should rst follow what the law says before coming to court is not conned to land matters only. In Speaker of National Assembly –vs- Karume [1992] KLR 21 the court held, inter alia, “ Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedure.” 23. The lower court also faulted the appellant’s case before it for another plausible reason namely: Weak evidence. The appellant alleged invasion of his land, harvesting stones therefrom, and cutting down of trees. This is something he captures well in ground 4 of the memorandum of appeal. It needs to be appreciated that the appellant did not ask for compensation in the suit led the lower court. He asked for various orders but assessment of damages and/or compensation for loss was not asked for. One wonders why he lower court was supposed to address itself on what it had not been asked to do. 24. But even had the lower court been asked to do so, it seems plain or clear to this court that the appellant was the only one who testied on his side of the case. Quite clearly, some of his allegations – like cutting down of trees – required an expert to give evidence to explain the damage done and the monetary estimate of the loss. The appellant alone could not adequately do that and his evidence alone would be insucient. Expert evidence was required. It was not made available. Therefore, the appellant’s allegations that the lower court did not consider this aspect of his case sounds hollow. 25. Equally hollow is the appellant’s averment that he was not given a fair hearing. In my view, fair hearing in the circumstance of the case would entail being aorded opportunity to articulate his case in court. The court record shows that the appellant gave evidence and was accorded time to cross-examine or question those who testied on the defence side. It does not appear that there were any impediments placed in the way of hearing during trial so as to frustrate the appellant’s right of conducting the case. In the appellant’s submissions before the court, it would appear that denial of fair hearing comprised of failure by the lower court to consider some documents. With respect, this is not denial of fair hearing. It can possibly amount to inadequate appreciation of evidence or a mistake or failure to consider and analyze the evidence properly but its certainly not a denial of fair hearing. The appellant therefore got it wrong when he alleged that he was not given fair hearing. 26. The appellant also seems to get mixed up regarding the reliefs or remedies he wants from this court. In his memorandum of appeal, he would wish the appeal to be allowed and the judgement of the lower court to be set aside. He would wish to get costs also. In his submissions, his position somewhat changes. He would wish to be declared as owner of parcel No. 1066. He no longer wants costs. He would like each side to bear its own costs. He would wish a “consent agreement” which he views as “a peaceful and amicable resolution to the boundary disputes between the neighbouring parcels.” This change of position without formally abandoning the earlier position is a bit confusing. It is not helpful to his cause. He seems to have become shifty and a bit unsure of what he wants. 27. When all is considered therefore, it cannot be said that the appellant has demonstrated the merits of his appeal. I therefore dismiss the appeal herein with costs to the respondents. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 29TH MAY, 2025. In the presence of, Adam Muthoka - Appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18688/eng@2025-05-29 6

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N/A for Respondent Court Assistant - Musyoki A. KANIARU JUDGE- ENVIRONMENT & LAND COURT, KITUI 29/05/2025 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18688/eng@2025-05-29 7

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