Republic v Land Registrar Mbeere North & 2 others; Kienge (Ex parte Applicant)

from Peter Njue Mugo, the 1st Interested Party. He stated that he veried the boundaries of his land parcel and took actual occupation but found that the Applicant, Mutemi Kienge, who is the owner of land parcel No. Embu/Iriaitune/1835, was occupying and cultivating a portion of his land. He informed him as much and told him to invite the District Surveyor and the Land Registrar to verify the boundaries between the two land parcels. He was informed that the Land Registrar and the Surveyor would visit the subject land parcels and verify the boundaries and prepare a report on 14.10.2025. However, he was unavailable on that day as he works with the Kenya Defence Forces (Kenya Navy) stationed in Mombasa and had informed the Land Registrar that he would not be available during the scheduled site visit. 4. He averred that the Land Registrar and the Surveyor visited the subject land parcels in his absence and without his private surveyor's presence. He stated that he does not agree with the Surveyor's report dated 19/11/2025, which indicates that he has encroached on land parcel No. Embu/Iriaitune/1835. He averred that he would be seeking an order that another survey report be conducted by the County Surveyor in his presence and his private surveyor, whose report materially diers with the rst survey report. 5. He contended that he is ready to foot the expenses that may be expended by the Government Ocers during the 2nd site visit and stated that it is in the interest of justice that the survey verication exercise be done in his presence and the presence of his private surveyor as the Applicant will not suer any prejudice or loss. He annexed to the replying adavit a copy of the title deed for land parcel 2572, a letter dated 19/09/2025, a survey report dated 19/11/2025 and another survey report dated 07/01/2026. 6. The Ex-parte Applicant, Mutemi Kienge, in response led a further adavit dated 08/04/2026. He deposed that the 2nd Interested Party was irregularly trying to challenge the report by the Land Registrar and the surveyor through a replying adavit. He averred that the site visit complained of was made by consent of the parties and there was no requirement that a private surveyor be present. He contended that if the 2nd Interested Party was aggrieved by the ndings of the Land Registrar he has recourse elsewhere other than in these proceedings as the surveyors report settled the proceedings herein. He averred that as the party who moved the Court he is fully satised that the Land Registrar discharged her duty under the law. He annexed a copy of an order dated 06/10/2025 and a survey report dated 19/11/2025. 7. When the application came up for directions, the parties agreed canvass it by way of written submissions. 8. The Ex-Parte Applicant led submissions dated 15/05/2026 through the rm of Victor L. Andade Advocates. He submitted that he moved the Court seeking leave to le a judicial review application but the said application was compromised before it was heard and the Respondent made a site visit. He averred that there is nothing else left in the matter unless a new matter is led or an appeal led by any party who is disgruntled. He contended that what is pending is the submission of the report by the Land Registrar which will mean that the proceedings made to compel him have come to an end. He cited the case of Nyaga v Nyuya (2023) KEHC 19514 (KLR) in support of the submissions. 9. The Respondent led submissions dated 11/05/2026 through the Oce of the Attorney General. They submitted that they duly discharged their statutory duty under Section 19 of the Land Registration Act by visiting the suit lands together with the Land Surveyor on 06/10/2025 as directed by the Court and thereafter prepared a report. They further submitted that the 2nd Interested Party’s request for fresh orders for a re-visit and re-xing of the boundaries is improper in law, as there were previous orders directing a site visit which have neither been set aside nor appealed against. They averred https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5795/eng@2026-09-24 2

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that the 2nd Interested Party is improperly inviting the Court to grant orders that have not been formally pleaded or properly sought, and ought to have moved the Court by way of a formal application seeking to set aside the previous orders for the site visit. They cited the case of Board of Trustees National Social Security Fund v Michael Mwalo (2015) Eklr in support of the submissions. 10. The 2nd Interested Party led submissions dated 27/04/2026 through the rm of Njeru Ithiga & Company Advocates. He submitted that he was not present or represented by an advocate when the consent to compromise the Chamber Summons was entered into on 04/08/2025. He averred that he protested on the site visit of 06/10/2025 as he was held up by work duties at the time and requested for a rescheduling to November 2025 but the request was declined by the Land Registrar without giving reasons. He averred that out of that site visit, the Land Registrar and the Surveyor led a report dated 19/11/2025 which hived 2 acres out his land without his presence or participation which was an injustice meted on him. 11. He averred that it was after he learnt of the surveyors report that he led a replying adavit protesting the manner in which the exercise was conducted and asked for a site re-visit in his presence and that of his surveyor at his cost. He averred that the basis of the request is on the ground that his private surveyor visited the suit lands and compiled a report dated 07/01/2026 which remarkably diers with the surveyors report dated 19/11/2025. He contended that the disputed report dated 19/11/2025 should not be adopted by the court as it is as he was condemned unheard which is against the rules of justice. He urged that the Court direct a site re-visit and re-xing of boundaries by the Respondent and County Surveyor and that the Applicant and Respondent will not suer any prejudice if the exercise is repeated. 12. Having considered the application, the responses thereto and the submissions by the parties, the issue for determination is whether the 2nd Interested Party has made out a case for a fresh survey and re-xing of the boundaries to land parcels Embu/Iriaitune/1835 and Embu/Iriaitune/2572. 13. It is not in dispute that the Court on 04/08/2025 directed the Respondent and the District Surveyor to visit the suit lands and establish and mark the boundaries. They did so and prepared a report dated 19/11/2025. The 2nd Interested Party is aggrieved by the report on the ground that he was not present during the site visit and that the exercise resulted in approximately two acres being hived o his land. He also states that he had notied the Land Registrar that he would be unavailable on 06/10/2025, the day of the site visit due to his work commitments with the Kenya Defence Forces and had requested that the exercise be rescheduled to November 2025. There is a letter dated 24/09/2025 in which the 2nd Interested Party communicated his work commitments and requested a rescheduling of the site visit. The Land Registrar conrmed receipt of the letter and explained that it would be dicult to secure another date as the oce diary was full until the next year. 14. I have also considered the survey report dated 07/01/2026 prepared by Nthirimano & Associates Ltd. The report diers from the report dated 19/11/2025 by the District Surveyor. The 2nd Interested Party therefore disputes the ndings of the rst survey and has provided another survey report in support of his position. In the circumstances, and considering that the 2nd Interested Party was not present during the site visit and had notied the Land Registrar of his unavailability, I nd that it would be in the interest of justice for the boundaries to be marked afresh. The Ex-parte Applicant and the Respondent will not suer prejudice if the exercise is repeated, particularly as the 2nd Interested Party has undertaken to meet the expenses of the repeat exercise. 15. Consequently, the 2nd Interested Party's request for a fresh survey and re-xing of the boundaries is allowed. The Respondent and the District Surveyor shall undertake the exercise in the presence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5795/eng@2026-09-24 3

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of the 2nd Interested Party and his private surveyor and all the aected parties. The expenses of the Government Ocers shall be met by the 2nd Interested Party. DATED, DELIVERED AND SIGNED AT EMBU THIS 24TH DAY OF SEPTEMBER, 2026. HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1. Mr. Kiongo for the Respondent 2. Applicant/Advocate-absent 3. Ruth C/A. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5795/eng@2026-09-24 4

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