Vide the plaint dated 11th December 2023 the plaintiff sued the defendants herein seeking for:
- A permanent injunction restraining the 1st, 2nd and 3rd Defendants from authorizing encroachment, constructing putting new boundary beacons, damaging, sub dividing, selling or dealing in any manner whatsoever with the plaintiff’s land reference number BUNYORE/ESSABA/MBALE/858.
- Costs of the suit be provided for.
The plaintiff’s case is that he is the registered owner of land parcel known as WEST BUNYORE/ESSABA/MBALE/856 (the suit land) That the defendant on 23rd October 2023 made a report on boundary dispute determination between the suit land and land parcel numbers WEST BUNYORE/ESSABA/MBALE/853 and 854 and established that to avert endless disputes all parties participate to see that the map be amended to reflect what is on the ground and how they have been in use and occupation of the parcels of land in dispute. That in contravention of the findings of the Land Registrar the1st Defendant who is the occupier of land parcel No. WEST BUNYORE/ESSABA/852 has encroached onto the suit land and commenced construction of buildings putting new beacons and destroying the plaintiff’s land.
The 1st Defendant vide the Statement of Defence dated 2nd February 2024 denied the plaintiff’s claim and averred that the 1st defendant lacks the locus standi to be sued, that the suit does not raise any reasonable cause of action against the defendants, that the suit is frivolous, vexatious and that no demand notice or notice of intention to sue was ever served.
The 2nd and 3rd Defendants filed a Defence dated 10th January 2024. They denied the plaintiff’s claim and averred in the alternative and without prejudice that if any actions were carried out in relation to registration of the suit land, the same were done lawfully, in good faith and within the statutory mandate of the Land Registrar.
The Evidence
The plaintiff testified as PW1. He adopted the contents of his witness statement dated 11/12/2023 as his evidence in chief. He stated that he was the proprietor and owner of land known as WEST BUNYORE/ESSABA/MBALE/856. That on 23rd October 2023 the County Land Registrar Vihiga made a report on boundary dispute determination between parcels of land comprised in WEST BUNYORE/ESSABA/MBALE/856, 853 and 854. That despite the existing survey plan the 1st defendant had commenced construction, damages, putting beacons and has encroached on to the plaintiff’s land. That his property was in danger of being wasted, damaged or alienated by the 1st defendant unless the court intervenes.
He testified that his land measures 0.2 ha. He produced a copy of title deed for the suit land, copy of Land Registrar’s report dated 23/10/2023 and photographs as exhibits.
On cross examination he stated that the land was ancestral land, that he is the one who called the Land Registrar and that he bought the map which they used in the exercise. That he does not agree with the report of the Land Registrar because where the boundary was placed was on his land. He further stated the boundary was destroyed by his neighbours in the year 2013.
That the Land registrar took measurements but was not fair and that where the boundary was placed was on his land. That he did not have a surveyor’s report to show that the church was on his land. That the person who sold the land to him never filed a case concerning the boundary.
On behalf of the 1st Defendant 3 witnesses testified. DW1 was Kutiato Mbati Henry. He adopted the contents of his witness statement as his evidence in chief. He stated that he is the one who gifted the suit land to the church in the year 2020. That in the year 2023, the church decided to construct a permanent structure for worshipping. That when the construction had reached the ring-beam, the plaintiff started claiming that the construction was being done on his land. That the Land Registrar came to the site and established the boundary. That he had been in possession of the suit land cultivating it for a period of 14 years without any interference.
He produced land sale agreement dated 15/8/2001, another agreement dated 24/1/2024, certificate of official search dated 25/1/2024 and letter from Chief as exhibits.
He testified further that property acquired church Assemblies of PAG Church are held by the Trustees of PAG Kenya at the Headquarters. That it is the Trustees who should be sued.
On cross examination DW1 stated that he was not the owner of land parcel No. W. BUNYORE/ESSABA/853 That he bought it and gave it to the church. That the title deed was still in the name of the seller’s deceased husband and succession was ongoing. That the building is already roofed and that approval to build was obtained from physical Planning Vihiga County.
On re-examination he stated that the boundary dispute that existed was resolved by the Surveyor who visited the land at the instance of the plaintiff.
DW2 was Abednego Otundo. He adopted the contents of his witness statement filed on 6/6/2024 as his evidence in chief. He stated that he was a pastor with the PAG Church Kenya and was posted to Ushindi PAG Church on 7th July 2017. That in the year 2020, DW1 volunteered to give the church a portion of land to construct a church. That at first they constructed a semi-permanent church, toilet and kitchen. That at that time the plaintiff was a member of the church and contributed two posts. That while constructing a permanent church building and on reaching the ring beam, the plaintiff started claiming that the church had been placed on his land.
That later the Land Registrar came and established the beacons and rectified the boundary and all parties were satisfied. That the plaintiff was also present and was satisfied with the exercise. He denied that the Church ever trespassed onto the plaintiff’s land.
DW3 was Peter Mung’au. He testified vide his witness statement filed on 6/6/2024 that he was the chairperson of Development of PAG Church Vihiga Branch. That after approval of the construction of a permanent church by the County Government he commenced the construction. That the plaintiff started complaining of construction on his land which information is not true.
Submissions
On behalf of the plaintiff it was submitted vide the written submission dated 25th January 2025 filed by Wachakana & Co. Advocates that the unsanctioned variation and boundary adjustment of the suit properties are not ratified by the Land Registrar and Land Surveyor and that the changes stand to affect all the demarcations and mutations of the said suit properties. That accordingly the 1st defendant is not the registered owner of Land Parcel No. W. BUNYORE/ESSABA/MBALE/853 and therefore has no locus standi or authority to undertake construction of its church on the said parcel of Land.
That the plaintiff has met the threshold for grant of the injunction order sought. Counsel relied on the case of Nguruman Limited vs Jan Bonde Neilsen & 2 others (2014) eKLR, and the case of Mrao Ltd vs First American Bank Ltd & 2 others (2003) to support his submissions.
Counsel urged the court to invoke its supervisory powers under article 165(3) and (6) of the Constitution to order the Registrar of Land, County Surveyor to revisit the issue of boundaries as per the law. Counsel also relied on the provisions of article 47, 23(3), 35 (2), 20 (1) and 23 of the Constitution of Kenya 2010 and Section 9 of the Fair Administrative Actions Act.
Citing the provisions of section 18(2) of the Land Registration Act, Counsel submitted that the courts of law are not the first forum to determine issues to do with boundary disputes.
Counsel urged the court to enter Judgment against the Land Registrar and the Hon- Attorney General for failure to file defence.
On behalf of the 1st defendant written submissions dated 12th February 2025 were field by Ms Karani Grey Company Advocates. Counsel submitted that the plaintiff failed to sue the Registered Trustees of the church as is the requirement of law under the Societies Act that hence the suit is fatally defective. Counsel relied on the case of Pius Wateme D. Maina vs Director General Kenya Urban Roads Authority & 5 others eKLR and the case of Ann Mumbi Thinga & another vs PCEA through Timothy Njoya & another (1998) eKLR to support the submissions.
Counsel submitted further that the plaintiff’s claim was purely a disagreement over a boundary which is purely a preserve of the Land Registrar under the provisions of Section 18 of the Land Registration Act, 2012.
That no leave was sought for entry of judgment in default against the 2nd and 3rd defendants. That the boundary establishment was carried out in the presence of the parties including the plaintiff and that they were satisfied with the exercise. That the plaintiff having been the initiator of the process should not be allowed to dispute and run away from the outcome of his own process. That there is no other report to contrast the findings of the report subject matter of this suit.
Counsel urged the court to dismiss the suit with costs to the 1st defendant.
Issues for determination
From the pleadings filed, the evidence placed before court and the submissions made, the following emerge as the issues for determination herein.
- Whether or not the 1st defendant has capacity to be sued.
- Whether or not the plaintiff has made out a case for grant of an order of permanent injunction.
- Whether or not the court should order the Land Registrar to revisit the land and do a resurvey.
- Whether judgment should be entered against the 2nd and 3rd defendants
- What orders to make on payment of costs.
Analysis and determination
The first issue for determination is whether the 1st defendant has capacity to be sued.
As part of its defence the 1st defendant pleaded that the suit was defective as the 1st defendant lacked the locus standi to be sued.
DW1 testified that the PAG church had registered Trustees and that property acquired by the church Assemblies were held by the Trustees of the church and that the Trustees were the ones to be sued.
It was submitted by Counsel for the 1st defendant that the 1st defendant had no capacity to be sued.
The 1st defendant was described in paragraph 2 of the plaint as a church known as Ushindi P.A.G operating its business in Luanda. No evidence was placed before court that the 1st defendant was a legal person capable of being sued. Being a society, a church is not a corporate body capable of suing or being sued in its name and hence must be sued through its registered Trustees. To that extent the case against the 1st defendant is fatally defective.
The second issue is whether a case for a permanent injunction has been made out.
The basis of the plaintiff’s claim is that the 1st defendant had encroached onto his land, the suit land herein. The burden of prove under the provisions of section 107 to 109 of the Evidence Act vests with the plaintiff to prove that the encroachments occurred. One of the documents produced by the plaintiffs as exhibits was the Land Registrar’s report dated 23/10/2023 which was inclusive of surveyor’s report of even date. The Land Registrar indicated that there exists a boundary with clear boundary features on most parts of the boundary they checked, that they advised the parties to the dispute to adopt the existing boundaries except one part that had no clear boundary features and changes were made.
The surveyor’s report indicated that they corrected the abnormally on the Eastern side of the boundaries and beacons marked and boundary features planted.
The report does not indicate whether any of the parties had encroached onto another’s land. There is no evidence that the 1st defendant had interfered with the beacons marked or the boundary features placed by the 2nd defendant and the surveyor.
The 2nd defendant and the surveyor came to the site and undertook the exercise at the invitation of the plaintiff. It was the plaintiff ‘s case that he is the one who bought/availed the map that was used in the exercise.
The 1st defendant denied ever encroaching onto the suit land. The grounds for grant of permanent injunction as rightly submitted by Counsel for the plaintiff as laid down in the case of Nguruman Limited vs Jan Bonde Neilsen & 2 others (2014) eKLR are that the claimant must prove a prima facie case, and irreparable injury. These conditions have not been proved in the present case.
The next issue for determination is whether or not the court should order the Land Registrar to revisit the suit land and conduct a resurvey.
In his testimony, the plaintiff stated that he desired that the court may direct the Land Registrar and surveyor to do a resurvey of the suit land. In his submissions Counsel for the plaintiff urged the court to invoke its supervisory powers to order the Land Registrar and survey to resurvey the suit land.
This was however not prayed for the plaint. Parties are bound by their pleadings. Further, it appears the plaintiff’s case is that he is not satisfied with the work done by the Land Registrar and Surveyor whom he invited to the land. There is nothing in the reports to show that he was not satisfied with their work.
The 1st defendant and its witnesses stated that the plaintiff was satisfied with the work. However, should it be that the plaintiff was not satisfied, there is s procedure provided for in law which he ought to have followed to address his grievance.
I find no grounds to order Land Registrar and Surveyor to revisit the ground and resurvey.
On whether the court should enter Judgment against the 2nd and 3rd defendants, firstly I, find no cause of action disclosed against them and secondly, they entered appearance and filed defence hence there is no basis for entry of default judgement against them.
In conclusion I find that the plaintiff has failed to prove his case on a balance of probabilities. The suit is therefore hereby dismissed. Costs to the 1st defendant.
Orders accordingly.
Judgement dated and signed at Vihiga and delivered this 15th day of May, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi------Court Assistant.
Wakasa Were h/b for Wachakana for the Plaintiff.
KaraniGrey for the 1st Defendant.
N/A for the 2nd and 3rd Defendants.