Koipa v District Land Registar, Narok & 3 others

a. An Order Of Mandamus be and is hereby issued compelling the District Land Registrar, Narok, and the District Land surveyor Narok to visit Land Parcels Narok CIS-Mara/ Oleshwa/857 and 958 determine, x, and mark their common boundary in accordance with Sections 18 and 19 of the Land Registration Act, 2012. b. A declaration that the failure and/or refusal by the 1st and 2nd Respondent to determine the boundary dispute is unlawful, unreasonable, and in violation of Article 47 of the Constitution and Fair Administrative Action Act. c. An Order of Mandamus compelling the County Commissioner, Narok North to provide security during the boundary determination exercise: d. Costs of this application. 2. The Judicial Review herein is premised on the grounds set out on the face of the Notice of Motion Application, and the above referred Supporting Adavit of the Applicant. Among the grounds in support are; that the Applicant is the registered proprietor and/or lawful occupier of Land Parcel No. Narok/Cis-Mara/Oleleshwa/957, as per the copy of the title marked “KK-3.”; That the Applicant’s property shares a common boundary with Land Parcel Nos. Narok/Cis-Mara/Oleleshwa 958, and Narok/Cis-Mara/Oleleshwa/956 ,and that there has been a boundary dispute since 2014 between proprietors of these parcels. 3. Further, that the dispute led to the ling of Narok PMCC Civil Suit No. 1 of 2014, and on 23rd January 2014, the parties recorded a Consent Order directing the 1st and 2nd Respondents herein to settle the boundary dispute. The Consent Order was annexed as “KK-2.” 4. That the 1st and 2nd Respondents herein have visited the suit properties, but refused to render a nal determination despite payment of all the requisite fees. The Applicant has also written to the to the 1st and 2nd Respondents without any assistance despite the Order lasting over a decade. 5. The 1st and 2nd Respondents opposed the instant Judicial Review Application by ling their Grounds of Opposition dated 2nd June 2026, basically stating that the present application is premature as Regulation 40(8) of the Land Registration (General) Regulations, 2017, allows the 1st and 2nd Respondents up to 6 months to determine a boundary dispute since ling an Application. That the Applicant’s only form of application is a letter dated 16th February 2026, and as such 6 months have not lapsed. 6. That the present proceedings are premature as they were instituted before the statutory procedure prescribed under Sections 18 and 19 of the Land Registration Act, and Regulations 40 and 41 of the Land Registration (General) Regulation, 2017, could run its course and as such the prayers for an Order of Mandamus had not crystalized. 7. The 4th Respondent also responded with a Replying Adavit sworn on 29th May 2026, in which he avers that there exists Narok Miscellaneous Civil Application No. 1 of 2014: Kimunyak Ole Koipa Vs Stanley Ole Maleto, involving substantially the same parties and that it is still pending. 8. That there is a Consent Order in the same matter, which the Applicant has failed to execute for over 12 years. 9. The Applicant led a Further Adavit sworn on 8th July 2026, in response to the Grounds of Opposition , wherein he averred and reiterated that the dispute arose in 2024. At paragraph 3, he averred that the letter dated 16th February 2026, was merely a formal demand and reminder requiring https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6089/eng@2026-09-17 2

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the Respondents to discharge their statutory duty that has remained unperformed for over 12 years and was not the initial request for boundary dispute. 10. This Judicial Review Application was canvassed by way of written submissions, which rival written submissions the court has carefully read and considered. 11. The Applicant’s written submissions are dated 8th July 2026, whereas the 4th Respondent led his submissions on 29th May 2026. 12. Upon perusal of the rival written submissions, the cited authorities and relevant provisions of Law, the court nds the following issues arise for determination: i. Whether the Judicial Review Application dated 2nd March 2026 is merited ii. Who bears the costs of these proceedings? Analysis And Determination Whether the Judicial Review Application dated 2nd March 2026 is merited 13. The Applicant Contended and submitted that the boundary dispute arose in 2014, and that the 1st and 2nd Respondents cannot rely on Regulation 40(8) of the Land Registration (General) Regulations 2017, and that he invoked the jurisdiction of the Land Registrar in that year. For this reason, the Respondents cannot rely on this Regulation to purport that six month has not lapsed since initiation of the dispute. 14. The Applicant also relied on Article 47(1) of the Constitution as read with Section 4(1) of the Fair Administrative Actions Act, which guarantee every person the right to Fair Administrative Action which is expeditious, ecient, lawful, reasonable and procedurally fair. He also contended that the Respondents have failed to discharge their functions since 2014. 15. The Applicant further submitted that the present proceedings are separate from Narok PMCC Civil Suit No. 1 of 2014, and that he is not seeking to execute the order in those proceedings. 16. On their part, the 1st and 2nd Respondents submitted that they are within their six month period of discharging their mandate, while the 4th Respondent submitted that the present proceedings are substantially similar to the proceedings in Narok PMCC Civil Suit No. 1 of 2014, and that the Applicant has failed to execute the Consent Order for over 12 years. 17. The 4th Respondent also submitted that the present proceedings are meant to execute the existing Court Order which are disguised as Judicial Review Application. 18. The court has analysed the pleadings herein in their totality, and it appears that the Applicant is indeed trying to enforce the Consent Order in Narok PMCC Civil Suit No. 1 of 2014, through these proceedings, christened as Judicial Review. 19. In his own Further Adavit sworn on 8th July 2026 at paragraph 3, the Applicant averred “that the letter dated 16th February 2026 annexed to my Supporting Adavit was merely a formal demand and reminder requiring the Respondents to discharge their statutory duty that has remained unperformed for over 12 years and was not the initial request for boundary determination.” 20. This in itself means that the boundary dispute arose at the exact time Narok PMCC Civil Suit No. 1 of 2014, was lodged and this Judicial Review Application was led with the aim of settling the said boundary dispute. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6089/eng@2026-09-17 3

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21. Section 4(4) of the Limitation of Actions Act states that: “ An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.” 22. The case of Peter O. Ngoge t/a O.P Ngoge & Associates v Orina & 14 others (Miscellaneous Civil Application 883 of 2007) [2025] KEHC 2957 (KLR) (Civ) (13 March 2025) (Ruling) Neutral citation: [2025] KEHC 2957 (KLR) interpreted this provision as follows: [Para 14] “……….the word “action” in Section 4(4) includes all kinds of civil proceedings (including execution proceedings) …….” [Para 18] “On the prayer to declare the decree stale and incapable of enforcement, I interpret the provisions of Section 4 (4) of the Limitation of Actions Act to say that for a decree to become incapable of enforcement, no steps must have been taken towards its enforcement for a continuous period of twelve (12) years. If, like in all limitations, a step is taken within 12 years, the period of computation terminates and commences afresh. It is the commencement of the process of execution which determines the date the computation of time under Section 4(4).” 23. The Applicant has submitted that since the Consent Order in 2014, the 1st and 2nd Respondents herein have visited the parties’ parcels of land herein without conclusively settling the dispute. These averments have not been controverted. Clearly, this Judicial Review has been led as an attempt to execute the Consent Order. In this regard, the Judicial Review Applicant is still within time. 24. Be that as it may, it is also undisputed that a boundary dispute exists between the Applicant and the 3rd and 4th Respondents. The parties having entered into Consent Order in Narok PMCC Civil Suit No. 1 of 2014 directing the 1st and 2nd Respondents herein to settle the boundary dispute is an admission of the same. 25. The 1st and 2nd Respondents have also displayed their willingness to settle the boundary dispute in their Grounds of Opposition dated 2nd June 2026. The only caveat in their willingness is the element of time They insist that they are within their 6 months period to settle the dispute as provided for under Regulation 40(8) of the Land Registration (General) Regulations, 2017. 26. Accordingly, the 3rd and 4th Respondents have not disputed the existence of the boundary dispute. Their only reservation is that the Applicant has sat on his rights and failed to execute the Consent Order on time. Article 47 of the Constitution of Kenya, 2010, guarantees every person the right to Fair Administrative Action that is expeditious, ecient, lawful, reasonable and procedurally fair If a right or fundamental freedom of a person has been or is likely to be adversely aected by administrative action, the person has the right to be given written reasons for the action. This right cannot be limited arbitrarily, not even by this Court. 27. The duty of the Land Registrar in Narok as imposed by Section 18 and 19 of the Land Registration Act to settle the boundary dispute herein is Administrative. 28. Section 18 of the Land Registration Act states that: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6089/eng@2026-09-17 4

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(1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been xed, the cadastral map and any led plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.(2)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. (3)Except where, it is noted in the register that the boundaries of a parcel have been xed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are dened under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299). 29. Section 19 of the Land Registration Act states that:the register an opportunity of being heard, cause to be dened by survey, the precise position of the boundaries in question, le a plan containing the necessary particulars and make a note in the register that the boundaries have been xed, and the plan shall be deemed to accurately dene the boundaries of the parcel.(3)Where the dimensions and boundaries of a parcel are dened by reference to a plan veried by the oce or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries xed under this section. (1) If the Registrar considers it desirable to indicate on a led plan approved by the oce or authority responsible for the survey of land, or otherwise to dene in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, 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. (2)The Registrar shall, after giving all persons appearing in 30. Therefore, it is just that the existing dispute be settled once and for all. It is in the interest of both the Applicant and the 3rd and 4th Respondents to have the said boundary dispute settled since they will be able to enjoy their rights to property, have peaceful and quiet possession. Accordingly, no prejudice will be suered by the Respondents, if the Orders sought in the Judicial Review are allowed. 31. Consequently, this court nds and holds that the instant Judicial Review Application is merited, and thus allowed. Who bears the costs of these proceedings? 32. Section 27(1) of the Civil Procedure Act states that Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. 33. It is evident that costs follow the event, and are awarded to the successful party. However, in instant suit and under the prevailing circumstances, awarding of costs will be unnecessarily punitive to either party. 34. Accordingly, the court nds and holds that the instant Judicial Review Application dated 2nd March 2026, is merited and the same is hereby allowed entirely with no orders as to costs. It is so Ordered. DATED, SIGNED AND DELIVERED VIRTUALLY, AT NAROK THIS 17TH DAY OF SEPTEMBER 2026. L. GACHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6089/eng@2026-09-17 5

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17/9/2026 Delivered online in the presence of: Elijah Meyoki….Court Assistant Ms Mwangi for the Exparte Applicant Mr Ochako for the 1st Respondent Mr Ochako for the 2nd Respondent No Appearance for the 3rd Respondent Mr Nchoko for the 4th Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6089/eng@2026-09-17 6

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