Aggrey Maula Malungu Kimeu v Ndunda Kimeu

Kimeu Mutyauvyu who is the registered owner of LR No. Nzaui/Masumba/416 measuring 93.0 hectares. The deceased was registered as owner of the land on 1st December, 1976 and certificate of title was issued to him on 31st October, 1979. 3. The filing of this suit was triggered by the Defendant’s action of calling the area chief and elders to come and mark the boundary between parcel 461 and 341. This boundary marking by elders was done on 17 th January, 2017. Attempts to resolve the dispute through survey process was unsuccessful as the parties could not agree on the report of the surveyor which was filed in court pursuant to consent of the parties advocates. The court had to intervene and ordered that the Land Registrar goes to the ground and establish the boundary between the two parcels. 4. Even after the boundary had been fixed, the Defendant was adamant that he wanted to have his day in court. This is how this simple boundary dispute ended up being heard. The Plaintiff testified and called three witnesses. The Defendant testified and called four witnesses. Plaintiff’s Case 5. The Plaintiff testified that the Defendant had gone to the chief’s office and asked the elders to come and mark the boundary between the two parcels. Those who were involved in the marking of the boundary were his elder brothers. He stated that he was not consulted despite the fact that he was the registered owner of parcel 341. The new boundary which was set up by the elders ended up taking indigenous trees which he had planted in 1974. The Plaintiff’s father Malungu Sila had subdivided his land which he shared amongst his sons. The Plaintiff’s parcel happened to border the parcel owned by the Defendant’s father. Defendant’s Case ELC NO. 176 OF 2017 2|Page

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6. The Defendant testified that when the Plaintiff started interfering with the boundary, he went to the Assistant Chief’s office where he reported that the Plaintiff was interfering with the boundary. The Assistant Chief asked him to involve the Plaintiff’s brothers who were well versed with where the boundary was. The Assistant Chief came on 17th January, 2017 and the boundary was aligned but the Plaintiff did not agree. 7. The Defendant stated that he is the first one who complained about the boundary dispute. He stated that since the lifetime of his father there was no boundary dispute. He further stated that he was wrongly sued as he is not the sole administrator of the estate of his father. 8. It is the Defendant’s evidence that when the Assistant Chief arrived, he and the Plaintiff were asked to step aside as the elders deliberated on the issue. It was found that the Plaintiff had encroached on the Defendant’s land. Parties Submissions 9. The parties were directed to file written submissions. The Plaintiff filed his submissions dated 23rd March, 2026. The Defendant filed his submissions dated 18th June, 2026. Plaintiff’s Submissions 10.The Plaintiff submitted that the court ordered that the Land Registrar do fix the boundary between parcel 341 and 461. This order was complied with in accordance to the Land Registration Act. The boundary having been established, it was submitted that the court can deal with the rest of the claim as presented by the Plaintiff. It was submitted that the report of Land Registrar which annexed a surveyors report found that the Defendant had encroached into the Plaintiff’s land. Defendant’s Submissions ELC NO. 176 OF 2017 3|Page

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11.The Defendant submitted that this court does not have jurisdiction to deal with the dispute herein as the gist of the dispute is a boundary dispute. It was submitted that even where parties have agreed to proceed in court, that in itself cannot confer jurisdiction on the court. Reliance was placed on the case of Phoenix of EA Assurance Company Limited –vs- S. M. Thigh t/a Newspaper Services (2019) eKLR where it was held as follows: “Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the court cannot confer jurisdiction to itself”. “It further stated it is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks parties cannot even seek refuge under the O2 principle or the overriding objective under the Civil Procedure Act, the Appellate jurisdiction Act or even Article 159 of the Constitution to remedy the same”. 12.The Defendant also submitted that the evidence of the Plaintiff did not support his case and that as parties are bound by their pleadings, the case should fail. Reliance was placed on the case of Peter Ojala Nyandere –vsSouth Nyancha Sugar Company Ltd (2018) eKLR where it was held as follows: “It is settled law that parties are bound by their pleadings...... the court below was in error when it raised the issue contrary to the pleadings of parties”. “.....it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averment in the pleadings, or put in another way, ELC NO. 176 OF 2017 4|Page

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which is at variance with the averments of the pleadings goes to no issue and must be disregarded.............” “.......in fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprise by which no opportunity is given to the other party to meet the new situation”. 13.The Defendant finally submitted that the survey of 2022 was erroneous and that the boundary which was marked by the elders on 17th January, 2017 is the correct boundary. Analysis and Determination 14.I have carefully considered the evidence adduced by the Plaintiff and that of the Defendant. I have also considered the submissions of the parties. The issues which emerge for determination are firstly, whether this court has jurisdiction to determine this matter. The second is whether the Defendant has encroached on to the land belonging to the Plaintiff. Thirdly whether the Plaintiff is entitled to the reliefs sought. 15.On the first issue, a look at the reliefs sought by the Plaintiff shows that his claim was based on trespass. He was contending that the Defendant had encroached into his land and was occupying part of it. The parties agreed to send a surveyor to the ground. The surveyor prepared a report dated 13 th November, 2018. The Defendant did not agree with the report. 16.The court on its own motion directed the Land Registrar to go and determine the issue of boundary between the two parcels and file a report. This was done and a report by the Land Registrar dated 23rd November, 2022 was produced. The report of the Land Registrar annexed a report of the surveyor who carried out the survey. The Plaintiff called the surveyor PW4 Hilary Kipkoech Ranymoi who found that the Defendant had encroached into the ELC NO. 176 OF 2017 5|Page

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Plaintiff’s land. The boundary was fixed as the court had directed. This case should have ended there but the Defendant insisted on being heard. 17.The Land Registrar having established the boundary, the court had jurisdiction to deal with the remainder of the issues which he thought the court was to determine on. The Defendant cannot turn around and claim that even if he consented to the case being heard by the court, the court lacked jurisdiction to entertain the suit. The Plaintiff’s claim was based on trespass for which the Plaintiff wanted the court to restrain the Defendant. The court therefore has jurisdiction to deal with the case. 18.On the second issue, the report of the Land Registrar is clear that the Defendant had shifted the boundary from point a1 to a to point b1 to b. This clearly shows that the Defendant had encroached onto the Plaintiff’s land. The Registry Index Map which was produced showed that the Plaintiff’s land on the ground did not correspond to the Registry Index Map. The correct position of the boundary was shown to the parties concerned after the parties and their witnesses were heard. 19.The elders who fixed the boundary had no benefit of a surveyor. They fixed the boundary in accordance to what they considered to be the correct boundary. After the Plaintiff came to court he has proved that it is the Defendant who has encroached into the Plaintiff’s land. Boundaries of registered land cannot be determined by elders. It can only be determined by the Land Registrar as was done in this case. 20.The Defendant was claiming that the Plaintiff had encroached on to his land. There was no counterclaim filed. When the surveyor went to the ground, they confirmed that it is the Defendant and not the Plaintiff who had encroached on to the Plaintiff’s land. 21.On the third issue, the Plaintiff has demonstrated through evidence that the Defendant has encroached on to his land. He is entitled to an injunction to prevent the said encroachment now that the Land Registrar has fixed the ELC NO. 176 OF 2017 6|Page

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boundary where it should be. On the other hand the Plaintiff has failed to prove that the Defendant sold a portion of his land. There was also no evidence that the alleged buyer has constructed on the encroached portion. I therefore find that the only prayer which the Plaintiff can be granted is a permanent injunction. Disposition 22.I therefore find that the Plaintiff has established that the Defendant has encroached on to his land. I grant a permanent injunction restraining the Defendant, his agents, servants or whosoever acting on his behalf from in any manner interfering with the possession of the Plaintiff’s land known as Nzaui/Masumba/341. The Plaintiff shall have costs of this suit. ................................................ HON. E. O. OBAGA, FCIArb JUDGE JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH OCTOBER, 2026. IN THE PRESENCE OF: Mr. Muia for Defendant Court Assistant – Steve and Jackline ELC NO. 176 OF 2017 7|Page

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