1. The Applicants filed the Notice of Motion dated 16th February 2024 seeking orders:-
1. THAT the Honourable Court be pleased to order the 1st Respondent to ascertain and mark the boundaries between Land Parcels Nos NYERI/NGANGARINGO/647, NYERI/NGANGARINGO/650, NYERI/NGANGARINGO/651 and NYERI/NGANGARINGO/652.
2. THAT the costs of this application be in the cause.
2. The application is supported by the applicants' joint affidavit. The grounds supporting the application are that the Applicants are the registered owners of Land Parcel Nos NYERI/NGANGARINGO/647, NYERI/NGANGARINGO/651 and NYERI/NGANGARINGO/652, respectively. The suit herein involves a boundary dispute between land parcel Nos. NYERI/NGANGARINGO/647, YERI/NGANGARINGO/651, NYERI/NGANGARINGO/652 and land parcel No. NYERI/NGANGARINGO/650, desirous of knowing the exact position of their land parcels Nos NYERI/NGANGARINGO/647, NYERI/NGANGARINGO/650, registered in the name of Nguthiru Kiambati. The issue is that the parties' respective occupation and utilisation of the above parcels of land on the ground seem not to be in tandem with the acreage as per the title deeds and the Registry Index Map.
3. For the above reason, the entire block of the four land parcels needs to be measured to ascertain the exact boundary of each parcel. They have been following up on the Land’s Registry in Nyeri, but their efforts have been frustrated by the non-attendance and lack of cooperation by the 2nd Respondent. The 2nd Respondent has been summoned twice concerning the dispute but has failed to attend, leaving the County Land Registrar to indicate that he cannot intervene further without a court order.
The 1st Respondent’s Affidavit
4. F.W. Gatonga, the Land Registrar-Nyeri County, the 1st Respondent, swore an affidavit in reply to the application. It was deposed that the Applicants did visit their office and made an application for the determination of an uncertain boundary. Following the application, they issued summons for all parties to appear at the site of the disputed properties on 9th May 2023 and 30th May 2023.
5. All parties did not attend the boundary dispute hearing on the said dates, and due to the complex issues arising from the contentious boundaries, the land registrar declined to hear and determine the boundary dispute and instead referred parties to this Court to seek orders.
6. Further, the Land Registrar deposes that they believed that the issues raised by the parties did not relate to the ascertainment of boundaries but raised issues that required a resurvey of all the parcels of land bordered by the road and the river. Further, some parcels of land that the Applicant complained about did not share a common boundary with the parcels belonging to them.
7. From the Land Registry records and the Registry Index Map, the Land Registrar deposed that there was a systematic loss in acreage pro rata and they were of the opinion that the parcels enclosed by the river and the road, which are Nyeri/Ngangaringo/935, 936, 937,951, 952, 647 and 650 be resurveyed so that if there is loss of acreage, it can be shared pro rata.
8. It is also the Land Registrar’s opinion that the issues in dispute are complex and cannot be determined in this application. It is in the interest of justice that the applicants should file a suit and enjoin all parties involved.
The 2nd Respondent’s Grounds of Opposition
9. Counsel for the 2nd Respondent filed Grounds of Opposition dated 3rd July 2024 based on the following grounds:
1) The Court has no jurisdiction to issue the orders as sought by dint of Section 18(2) of the Land Registration Act No.3 of 2012.
2) The Court is otherwise improperly moved as the suit is improperly instituted in contravention of the provisions of Section 19 of the Civil Procedure Act.
3) The suit should therefore be struck out.
Analysis and Determination
10. The Applicants seek an order directing the County Land Registrar, Nyeri, to ascertain and mark the boundaries between Land Parcels Nos NYERI/NGANGARINGO/647, NYERI/NGANGARINGO/650, NYERI/NGANGARINGO/651 and NYERI/NGANGARINGO/652. The facts complained of have been fully set out above.
11. The 2nd Respondent objected to the jurisdiction of this court by dint of Section 18 (2) of the Land Registration Act. The Land Registration Act CAP 300 deals with boundaries of registered land at Sections 18, 19 and 20. Section 18 provides as follows:
(1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed 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 fixed, 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 defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299).
12. The Land Registration (General) Regulations provide for the procedure to be followed when a person wishes to apply to the Land Registrar for re-establishment of a missing boundary or ascertainment of a boundary in dispute. Regulation 40 states that;
(1) An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section 18(3) of the Act in Form LRA 23 set out in the Sixth Schedule.
(2) The Registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for resolution of the dispute if a person has complied with paragraph (1).
(3) The Registrar shall notify the office responsible for survey of land of the intended hearing of a boundary dispute and require their attendance if a person has complied with paragraph (1).
(4) In determining a boundary dispute lodged in accordance with paragraph (1), the Registrar shall be guided by the recommendation of the office responsible for survey of land.
(5) The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs (1) and (2) an opportunity to be heard, make a determination of the dispute and inform the parties accordingly.
(6) Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notification, appeal the decision to the Court.
(7) Upon expiry of thirty days, the Registrar shall—
(a) cause to be defined by survey the precise position of the boundaries in question;
(b) file a plan approved by the authority responsible for survey of land containing the necessary particulars; and
(c) make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel.
(8) A dispute for determination of a boundary and or parcel shall, unless in the case of special circumstances, be completed within a period not exceeding six months from the date of filing the application.
12. The Court agrees with Counsel for the 2nd Respondent that the Courts jurisdiction when it comes to re-establishment of a missing boundary or ascertainment of a boundary in dispute is not an original jurisdiction but appellate as set out under Section 18 (2) of the Land Registration Act and Regulation 40(6) Land Registration (General) Regulations.
13. The Court of Appeal in the case of Azzuri Limited v Pink Properties Limited [2018] eKLR found as follows:
“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”.
14. Lucy Mbugua J In the case of Reuben Kioko Mutyaene v Hellen Kiunga Miriti & 4 others; Ntalala Eric Mutura & another (Interested Parties) [2021] eKLR the Court held that:
“Section 18(2) of the Land Registration Act provides in mandatory terms that the dispute should be submitted to the Land Registrar. It is manifestly clear that the entity which has the statutory mandate to avail an accurate plan of defined boundaries is the Land Registrar. This is also the entity which has the requisite expertise to undertake the aforementioned task.”
15. However, the court notes that in this case, the Applicants are not seeking an order for the court to carry out the exercise of re-establishment of a missing boundary or ascertainment of a boundary in dispute; they seek an order directing the 1st Respondent to ascertain and mark the boundaries to the suit parcels of land. The Land Registrar, on the other hand, in his affidavit deposed that the issues raised by the parties before him did not relate to the ascertainment of boundaries but raised issues that required a resurvey of all the parcels of land bordered by the road and the river. Further, he stated that some of the parcels of land that the Applicants complained about did not share a common boundary with their parcels of land. The Land Registrar further stated that from the Land Registry records and the Registry Index Map, there was a systematic loss in acreage pro rata. They were of the opinion that the parcels enclosed by the river and the road, which are Nyeri/Ngangaringo/935, 936, 937,951, 952, 647 and 650 ought to be resurveyed so that if there is a loss of acreage, it can be shared pro rata.
16. From the explanation given by the Land Registrar, the court is satisfied that the dispute between the parties is more than a boundary dispute and the court’s jurisdiction is thus not ousted by Section 18 of the Land Registration Act. Further, the court finds that if this were a true boundary dispute, as the Applicants claim, the Land Registrar is mandated to deal with the dispute as provided by the law without requiring a Court order.
17. The 2nd Respondent also objected to the suit, stating that the Court is improperly moved as the suit is improperly instituted in contravention of the provisions of Section 19 of the Civil Procedure Act. The said Section states that;
Every suit shall be instituted in such manner as may be prescribed by rules.
19. The Court has considered the fact that the Applicants did not indicate on the face of the Notice of Motion herein dated 16th February 2024, the provisions of the law the application is brought. The Court has also considered the provisions of the Civil Procedure Act, the Civil Procedure Rules and the Land Registration Act and has not seen any provisions allowing commencement of a suit by way of a Notice of Motion where no substantive suit exists. The Court thus agrees with the objection raised by the 2nd Respondent that the Court is improperly moved as the suit is improperly instituted in contravention of the provisions of Section 19 of the Civil Procedure Act.
20. The final order of the court is that the application dated 16th February 2024 is not properly before this court and it is hereby struck out with costs to the Respondents.
Delivered, Dated and Signed at Nyeri on 1st day of August 2025