Plaintiffs Case
Deborah Wambui Kimando (herein referred to as the Plaintiff) has come to this court seeking Judgment against John Muigai Gatimu (hereinafter referred to as the defendant) in terms that a perpetual injunction restraining the Defendant, his employees, servants, agents or any person claiming under him from interfering with the Plaintiff proprietary right and/or enjoyment over land parcel NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 hectares. Moreover, she prays for a declaration that the proceedings and decision of Molo Land Dispute Tribunal adopted as decree of Molo Senior Principal Magistrate's court is a nullity, unenforceable of no effect and incapable of being acted upon and/or executed by any person, body and/or entity.
Lastly, an order directed at the Land Registrar, Nakuru Land Registry recalling and cancelling the title held by the defendant to reflect the correct acreage. Ultimately, he prays for costs and interest of the suit.
In the pleadings, the plaintiff states that he is the registered owner of all that parcel of land known as NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 Hectares. At all times relevant to this suit, the Plaintiff has resided on NAKURU/MOLO/KAPSlTA/418 since the year 2000 where she has established her home.
The Plaintiff avers that her registration as the absolute proprietor of the suit property is a first registration by virtue of the provisions of the Registered Land Act, Cap 300 Laws of Kenya and can only be defeated on grounds of fraud.
The Plaintiff avers that without notice the Defendant lodged a complaint with Molo Land Dispute Tribunal challenging the Plaintiff's ownership of land parcel no. NAKURU/MOLO/KAPSlTA/418 and more specifically the boundaries of the suit property. The Defendant alleged before the Tribunal that he purchased parcel No. NAKURU/MOLO/KAPSITA/419 which had been reduced in acreage by virtue of the same being held by the plaintiff. The Plaintiff avers that the Molo Land Disputes Tribunal pursuant to the complaint by the defendant proceeded exparte, departing from rules of natural justice without jurisdiction and purportedly ordered that a portion of the Plaintiff's parcel belonged to the defendant. The Plaintiff avers that as a result of the said decision, the defendant is a trespasser on the suit property.
The Plaintiff avers that the defendant illegally and fraudulently manoeurved through and laid a claim on a significant portion of the Plaintiff's land. The Plaintiff further avers that the decision by the defendant purportedly executed is a nullity, and the purported ownership/entitlement of the Plaintiff's portion of land is not valid.
The Plaintiff contends that the defendant without any colour of right and in cahoots with his agents and/or servants relying on an illegal order has started threatening the Plaintiff with eviction and that apart from the Molo Land Dispute Tribunal proceedings and the adoption of the award in MOLO SPMCC NO. 18 OF 2008 there has been no and there are no proceedings between the parties herein touching on the subject matter herein in any court.
The Defence Case
The Defendant in response admits that the Plaintiff is the registered proprietor of land parcel NO. NAKURU/MOLO/KAPSITA /418 but the land does not actually measure 2.02 hectares as shown in her title deed but rather measures 2.7 acres. The defendant is the proprietor of land parcel NO. NAKURU/MOLO/KAPSITA /419 having purchased the same from Sammy Kipkorir Seroney sometimes in 2004. The Plaintiff / Applicant does not lay any claim to the land purchased by the defendant from Seroney. The defendants land and that of the Plaintiff do not share boundary even though the plot numbers are consecutive and that though Mr. Seroney's title shows the land the defendant purchased to be approximately 5 acres, the actual measurement verified on the ground by surveyors is 3 1/2 acres which he has accepted. Sometimes in 2007, the defendant lodged Land Dispute No. 17 of 2007 against the Plaintiff amongst others at the Land Disputes Tribunal at Molo. Contrary to the averments made by the Plaintiff, the land dispute was heard in her presence and a decision was reached after hearing all the parties. The Tribunal only made a finding to the effect that all the parties before it actually owned land.
Thereafter, only the boundaries were established by surveyors as there was no dispute as to respective ownership of land by the parties before the Tribunal and that no land belonging to the Plaintiff was even give to the defendant by the Tribunal. The determination of the boundaries and actual size on the ground of the respective parcels of land was determined by surveyors, it was not done by word of mouth or upon the defendants advise to the surveyors and there is therefore no way that the defendant could have mislead the tribunal as to the acreage as claimed by the Applicant.
The Molo Senior Principal Magistrate's Court has vacated all orders obtained by the Applicant and has instead advised the Applicant to pursue her luck in the High Court. The Land Dispute Tribunal made its findings on 6th May 2008 the Applicant herein has never challenged those proceedings. The decision of the Land Disputes Tribunal was adopted as a decree of the court at the Molo SPM's court. By her application dated 14. 2.2013, the plaintiff sought to revive the Tribunal matter by seeking to stay the orders adopting the award and by further seeking to enjoin the Registrar. The said application was dismissed by the court on 2. 7. 2013. The court was kind enough to grant the Applicant a stay of execution of the orders of 18. 12. 2012 for sixty days to enable her determine an appropriate course of action. The Applicant never sought any review of the court's orders and the Tribunal decision nor did she appeal against any of the orders emanating therefrom.
The Molo court had, earlier on 7th September 2012 issued an Order requiring the marking of boundaries for NAKURU/MOLO / KAPSITA 418, 419, 420, 421 and 799. THAT in compliance to the order above, the Nakuru District Land Registrar compiled his report and filed the same in court. THAT a reading of the above report at page 2 clearly shows that the acreage for parcel NO. 418 (belonging to the Plaintiff/ Applicant) as per the map and marked on the ground is 2.7 acres, contrary to what the Title Deed reads. The Title Deed reads approximately 5.5. acres. The District Land Surveyor and the District Land Registrar did also visit the land on 18th November 2012 and prepared a sketch reflecting the ground measurements. THAT from the sketch, it is clear that parcel NO. 418 (Plaintiff's) and parcel NO. 419 (Defendant's) do not share a physical boundary.
He contends that as early as 25th August 2004, the Provincial Surveyor had as per the registry index map (RIM) done the area computations for the disputed parcels which included the Plaintiff's and the Defendant's amongst others. The above computation clearly shows the Defendant's parcel of land was reduced from 5 acres to 3.2 acres. Orders of eviction were issued by the Molo Court against the Plaintiff and one Moses Onagwa on 7. 10. 2014. The Plaintiff has already been evicted from the Defendant's land pursuant to the Orders of the Court. The Land Disputes Tribunal at Molo, acted within its mandate in determining the dispute the defendant presented before it. The Molo Senior Principal Magistrate's Court acted perfectly within its mandate when it adopted the award of the Land Disputes Tribunal at Molo and issued the orders that followed the adoption. The Applicant is attempting to open a mitigation that has long come to an end and it is rather obvious that she is clinging onto any imaginary straw.
Evidence on Record
When the matter came up for hearing before me, the plaintiff testified as PW1 and adopted her witness statements dated 19th January 2015 and 12th Mach 2021. She states that her parcel of land is Nakuru/Molo/Kapsita/418. The land is 5 acres as depicted in the title deed. She produced the proceeding of the Molo Land Disputes Tribunal No 17 of 2007. She produced the decreeof the court whose import was that judgment was entered in the terms of the award of Molo Land Disputes tribunal Case no 17 of 2007 thus that plot no 419 belonged to John Muigai Gatimu and that no one was to interfere with the parcel of land. She did not see the decision of the tribunal and did not see the surveyor go to the land. She was not evicted from the land which she had fenced but was later removed after the decision of the tribunal. Their parcels of land are not neighboring each other.
The defendant testified as DW1 and stated that the plaintiff had encroached on his parcel of land no Nakuru / Molo /Kapsaita/419 land that he bought from one Sammy Kipkorir Seroney. The plaintiff has been evicted from the land that measured 3.2 acres. This dispute was before the tribunal and a determination was made and the determination was adopted as the judgment of the court and a decree of the court issued. The surveyor went on the ground and drew boundaries. The plaintiff was evicted vide an order of the court. The plaintiff did not appeal and did not apply for Judicial Review. The defendant fenced the land but the plaintiff has been removing the posts and spraying his food-crops.
This court made an order on the 24th February 2024 that the regional surveyor Nakuru to visit the parcels of land surveyor under dispute and to make a report. The regional surveyor went on the ground and found that the two parcels of land are not next to each other but are separated by another parcel of land known as Nakuru / Molo /Kapsaita/420. The plaintiff is the registered owner of and 418 whereas the defendant is the registered owner of Nakuru / Molo /Kapsaita/419. The surveyor observed that the owner of the pacel of land no Nakuru / Molo /Kapsaita/419 has a dispute with the owner of the parcel of land no Nakuru / Molo /Kapsaita/420 over the common boundary which is not marked on the ground and therefore the defendant does not know the extent of his land. The ground acreage of Nakuru / Molo /Kapsaita/418 was found to be 1.0 hectares. In conclusion the regional surveyor found that the ground positions of parcel nos Nakuru / Molo /Kapsaita/309,310,416,417, 418,419 and 420 do not tally with the registry index Map and therefore all the land owners should be involved for the dispute to be resolved. This report was produced by DW3, a land surveyor at the regional survey office known as Anna Njonga Etale. The report was prepared by Peter Wanyama, the regional surveyor, a seasoned and experienced land surveyor who has been transferred to the director of surveys office. The Regional surveyor found that the owner of parcel number 419 had encroached on parcel no 418.
Submissions on Record
In a nutshell, the plaintiff submits that the evidence adduced before this Court, specifically the Title Deed (PEX 1), clearly and unequivocally spells out the Plaintiff as the registered owner of all that land known as NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 hectares. In this regard, the Plaintiff's proprietorship over the entire 2.02 hectares is not a matter of conjecture but a matter of law. Section 26 of the Land Registration Act provides that the certificate of title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner thereof. This title acts as an impenetrable shield against any claims not rooted in the register itself. Furthermore, the Plaintiff's testimony regarding her open, continuous, and long-standing occupation of the land since the year 2000 was effectively corroborated by the Defendant himself.
The plaintiff submits that the Molo Land Disputes Tribunal had no jurisdiction to entertain and determine the dispute relating to land parcel number NAKURU/MOLO/KAPSlTA/418, and that the proceedings and award were not conducted in accordance with the law and the rules of natural justice.
Analysis and Determination
I have carefully considered the pleadings and evidence on record and do find that the plaintiffs land parcel number Nakuru/Molo/Kapsaita/418 and the defendants land parcel number Nakuru/Molo/Kapsaita/419 are not adjacent to each other but are in the same registration area. The two are separated by a parcel of land known as Nakuru /Molo/Kapsaita/420. There is a boundary dispute between the owner of Nakuru/Molo/Kapsita/419, the defendant herein and the owner of Nakuru/Molo/ Kapsita/420 who is not a party to this suit. The Regional surveyor went on the ground and found that the positions of parcels NakuruMolo/Kapsita/ 309,310,416,417,418,419 and 420 do not tally with the registry index Map and therefore there is need for all the parcels to be brought into this matter for the dispute to be settled. The regional surveyor found that the ground acreage for 418 is 1.0 hectares.
The plaintiff prays for a perpetual injunction restraining the Defendant, his employees, servants, agents or any person claiming under him from interfering with the Plaintiff proprietary right and/or enjoyment over land parcel NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 hectares. Moreover, she prays for a declaration that the proceedings and decision of Molo Land Dispute Tribunal adopted as decree of Molo Senior Principal Magistrate's court is a nullity, unenforceable of no effect and incapable of being acted upon and/or executed by any person, body and/or entity.
Lastly, an order directed at the Land Registrar, Nakuru Land Registry recalling and cancelling the title held by the defendant to reflect the correct acreage. The orders sought by the plaintiff cannot be granted unless the court ascertains the acreage of the two parcels of land. The circumstances of this case and the evidence given cannot allow the court to determine the issues before it. Before the court can make a determination on the rival ownership of the property, it has to determine the acreage of the adjoining parcels of land. In essence this court is being asked to determine the boundaries of the three parcels of land thus Nakuru/Molo/sita/418,419 and 420.
Section 18 of the Land Registration Act, 2012 (Kenya) establishes that registered land boundaries are generally considered approximate, requiring disputes to be resolved by the Land Registrar rather than courts in the first instance. Courts lack jurisdiction over boundary disputes unless the boundaries are fixed or the Registrar’s mechanism is exhausted. The Section provides as follows:-
18(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 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 situations 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."
Kimiriny v Land Registrar, Narok County; Leperes (Interested Party) [2023] KEELC 18752 (KLR): Reinforced that without a "fixed" boundary notation in the register, the cadastral map is merely for approximation. Masea & another v Sitei & 3 others [2018] eKLR: Affirmed that boundary disputes must be determined by the Land Registrar and not the Environment and Land Court in the first instance. Willis Ocholla v Mary Ndege (Kisumu ELC Land Case No. 137 of 2015): Confirmed that Section 18(2) is mandatory, placing boundary disputes under the mandate of the Land Registrar. Azzuri Properties v Pink Properties Limited [2018] eKLR: Highlighted that parties must follow the statutory mechanism for boundary dispute resolution, rejecting initial court jurisdiction. This court finds that the dispute herein revolves on the boundaries of the three suit parcels of land that should be entertained by the land registrar. The essence of provisions of Section 18 and 19 is to allow the expert in matters to do with boundaries to handle the dispute in the first instance. Even if the court decides to entertain the matter, it cannot be competent to adjudicate the matter to the end as it will still require to fall back to the expertise of the Land Registrar.
The plaintiff is further challenging the decision of the Molo Land Disputes Tribunal made in the award dated 6th of May 2008 and adopted as the judgment of the court and a decree issued on 19th November 2010. I have considered the issue raised by the plaintiff that the Tribunal lacked the jurisdiction to entertain the dispute and do not agree with counsel that the tribunal lacked Jurisdiction because the contention by the defendant before the tribunal was that the plaintiff had encroached on his parcel number Nakuru/Molo/Kapsita/419. Which he claimed that measured 2.02 hectares but was reduced to 3.4 acres whereas the plaintiff claimed that the defendant had encroached on her land.
Section 3(1) of Land Disputes Act (repealed) expressly limited the Tribunal's jurisdiction to civil disputes involving:
a) the division of or the determination of boundaries to land, including land held in common;
b) a claim to occupy or work land; or
c) trespass to land shall be determined by a Tribunal established under Section 4
I do find that the matter was properly before the tribunal as it required the determination of boundary and revolved on trespass.
Further, I do find that the plaintiff did not challenge the decision of the tribunal on appeal before the provincial appeals’ Committee as it then was or judicial review and therefore cannot challenge the decision by way of another suit. Decisions of a Land Disputes Tribunal cannot be challenged by filing a fresh plaint (suit) in a subordinate or high court, as this constitutes improper procedure and an abuse of the court process. Aggrieved parties must use the statutory appeal mechanisms, such as appealing to the Provincial Appeals Committee within 30 days or filing for judicial review. Filing a plaint to challenge a Tribunal award is considered a violation of the established legal framework. Once a tribunal decision is registered in a magistrate's court, it becomes a decree, and attempting to challenge it with a new suit is impermissible. The correct methods to challenge a decision are to appeal to the Provincial Appeals Committee within 30 days or filing for Judicial Review in the High Court or a court of equal status under Order LIII of the Civil Procedure Rules for orders of certiorari or mandamus. To maintain the finality of legal disputes, courts will strike out plaints that seek to reopen matters already decided by a Tribunal, particularly if the award has already been adopted as a court order. The award having been adopted as a judgment of the court and a decree issued, another suit cannot be entertained. The suit has no basis as it seeks to challenge a competent judgment of the lower court and is therefore dismissed with costs.
Deborah Wambui Kimando (herein referred to as the Plaintiff) has come to this court seeking Judgment against John Muigai Gatimu (hereinafter referred to as the defendant) in terms that a perpetual injunction restraining the Defendant, his employees, servants, agents or any person claiming under him from interfering with the Plaintiff proprietary right and/or enjoyment over land parcel NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 hectares. Moreover, she prays for a declaration that the proceedings and decision of Molo Land Dispute Tribunal adopted as decree of Molo Senior Principal Magistrate's court is a nullity, unenforceable of no effect and incapable of being acted upon and/or executed by any person, body and/or entity.
Lastly, an order directed at the Land Registrar, Nakuru Land Registry recalling and cancelling the title held by the defendant to reflect the correct acreage. Ultimately, he prays for costs and interest of the suit.
In the pleadings, the plaintiff states that he is the registered owner of all that parcel of land known as NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 Hectares. At all times relevant to this suit, the Plaintiff has resided on NAKURU/MOLO/KAPSlTA/418 since the year 2000 where she has established her home.
The Plaintiff avers that her registration as the absolute proprietor of the suit property is a first registration by virtue of the provisions of the Registered Land Act, Cap 300 Laws of Kenya and can only be defeated on grounds of fraud.
The Plaintiff avers that without notice the Defendant lodged a complaint with Molo Land Dispute Tribunal challenging the Plaintiff's ownership of land parcel no. NAKURU/MOLO/KAPSlTA/418 and more specifically the boundaries of the suit property. The Defendant alleged before the Tribunal that he purchased parcel No. NAKURU/MOLO/KAPSITA/419 which had been reduced in acreage by virtue of the same being held by the plaintiff. The Plaintiff avers that the Molo Land Disputes Tribunal pursuant to the complaint by the defendant proceeded exparte, departing from rules of natural justice without jurisdiction and purportedly ordered that a portion of the Plaintiff's parcel belonged to the defendant. The Plaintiff avers that as a result of the said decision, the defendant is a trespasser on the suit property.
The Plaintiff avers that the defendant illegally and fraudulently manoeurved through and laid a claim on a significant portion of the Plaintiff's land. The Plaintiff further avers that the decision by the defendant purportedly executed is a nullity, and the purported ownership/entitlement of the Plaintiff's portion of land is not valid.
The Plaintiff contends that the defendant without any colour of right and in cahoots with his agents and/or servants relying on an illegal order has started threatening the Plaintiff with eviction and that apart from the Molo Land Dispute Tribunal proceedings and the adoption of the award in MOLO SPMCC NO. 18 OF 2008 there has been no and there are no proceedings between the parties herein touching on the subject matter herein in any court.
The Defence Case
The Defendant in response admits that the Plaintiff is the registered proprietor of land parcel NO. NAKURU/MOLO/KAPSITA /418 but the land does not actually measure 2.02 hectares as shown in her title deed but rather measures 2.7 acres. The defendant is the proprietor of land parcel NO. NAKURU/MOLO/KAPSITA /419 having purchased the same from Sammy Kipkorir Seroney sometimes in 2004. The Plaintiff / Applicant does not lay any claim to the land purchased by the defendant from Seroney. The defendants land and that of the Plaintiff do not share boundary even though the plot numbers are consecutive and that though Mr. Seroney's title shows the land the defendant purchased to be approximately 5 acres, the actual measurement verified on the ground by surveyors is 3 1/2 acres which he has accepted. Sometimes in 2007, the defendant lodged Land Dispute No. 17 of 2007 against the Plaintiff amongst others at the Land Disputes Tribunal at Molo. Contrary to the averments made by the Plaintiff, the land dispute was heard in her presence and a decision was reached after hearing all the parties. The Tribunal only made a finding to the effect that all the parties before it actually owned land.
Thereafter, only the boundaries were established by surveyors as there was no dispute as to respective ownership of land by the parties before the Tribunal and that no land belonging to the Plaintiff was even give to the defendant by the Tribunal. The determination of the boundaries and actual size on the ground of the respective parcels of land was determined by surveyors, it was not done by word of mouth or upon the defendants advise to the surveyors and there is therefore no way that the defendant could have mislead the tribunal as to the acreage as claimed by the Applicant.
The Molo Senior Principal Magistrate's Court has vacated all orders obtained by the Applicant and has instead advised the Applicant to pursue her luck in the High Court. The Land Dispute Tribunal made its findings on 6th May 2008 the Applicant herein has never challenged those proceedings. The decision of the Land Disputes Tribunal was adopted as a decree of the court at the Molo SPM's court. By her application dated 14. 2.2013, the plaintiff sought to revive the Tribunal matter by seeking to stay the orders adopting the award and by further seeking to enjoin the Registrar. The said application was dismissed by the court on 2. 7. 2013. The court was kind enough to grant the Applicant a stay of execution of the orders of 18. 12. 2012 for sixty days to enable her determine an appropriate course of action. The Applicant never sought any review of the court's orders and the Tribunal decision nor did she appeal against any of the orders emanating therefrom.
The Molo court had, earlier on 7th September 2012 issued an Order requiring the marking of boundaries for NAKURU/MOLO / KAPSITA 418, 419, 420, 421 and 799. THAT in compliance to the order above, the Nakuru District Land Registrar compiled his report and filed the same in court. THAT a reading of the above report at page 2 clearly shows that the acreage for parcel NO. 418 (belonging to the Plaintiff/ Applicant) as per the map and marked on the ground is 2.7 acres, contrary to what the Title Deed reads. The Title Deed reads approximately 5.5. acres. The District Land Surveyor and the District Land Registrar did also visit the land on 18th November 2012 and prepared a sketch reflecting the ground measurements. THAT from the sketch, it is clear that parcel NO. 418 (Plaintiff's) and parcel NO. 419 (Defendant's) do not share a physical boundary.
He contends that as early as 25th August 2004, the Provincial Surveyor had as per the registry index map (RIM) done the area computations for the disputed parcels which included the Plaintiff's and the Defendant's amongst others. The above computation clearly shows the Defendant's parcel of land was reduced from 5 acres to 3.2 acres. Orders of eviction were issued by the Molo Court against the Plaintiff and one Moses Onagwa on 7. 10. 2014. The Plaintiff has already been evicted from the Defendant's land pursuant to the Orders of the Court. The Land Disputes Tribunal at Molo, acted within its mandate in determining the dispute the defendant presented before it. The Molo Senior Principal Magistrate's Court acted perfectly within its mandate when it adopted the award of the Land Disputes Tribunal at Molo and issued the orders that followed the adoption. The Applicant is attempting to open a mitigation that has long come to an end and it is rather obvious that she is clinging onto any imaginary straw.
Evidence on Record
When the matter came up for hearing before me, the plaintiff testified as PW1 and adopted her witness statements dated 19th January 2015 and 12th Mach 2021. She states that her parcel of land is Nakuru/Molo/Kapsita/418. The land is 5 acres as depicted in the title deed. She produced the proceeding of the Molo Land Disputes Tribunal No 17 of 2007. She produced the decreeof the court whose import was that judgment was entered in the terms of the award of Molo Land Disputes tribunal Case no 17 of 2007 thus that plot no 419 belonged to John Muigai Gatimu and that no one was to interfere with the parcel of land. She did not see the decision of the tribunal and did not see the surveyor go to the land. She was not evicted from the land which she had fenced but was later removed after the decision of the tribunal. Their parcels of land are not neighboring each other.
The defendant testified as DW1 and stated that the plaintiff had encroached on his parcel of land no Nakuru / Molo /Kapsaita/419 land that he bought from one Sammy Kipkorir Seroney. The plaintiff has been evicted from the land that measured 3.2 acres. This dispute was before the tribunal and a determination was made and the determination was adopted as the judgment of the court and a decree of the court issued. The surveyor went on the ground and drew boundaries. The plaintiff was evicted vide an order of the court. The plaintiff did not appeal and did not apply for Judicial Review. The defendant fenced the land but the plaintiff has been removing the posts and spraying his food-crops.
This court made an order on the 24th February 2024 that the regional surveyor Nakuru to visit the parcels of land surveyor under dispute and to make a report. The regional surveyor went on the ground and found that the two parcels of land are not next to each other but are separated by another parcel of land known as Nakuru / Molo /Kapsaita/420. The plaintiff is the registered owner of and 418 whereas the defendant is the registered owner of Nakuru / Molo /Kapsaita/419. The surveyor observed that the owner of the pacel of land no Nakuru / Molo /Kapsaita/419 has a dispute with the owner of the parcel of land no Nakuru / Molo /Kapsaita/420 over the common boundary which is not marked on the ground and therefore the defendant does not know the extent of his land. The ground acreage of Nakuru / Molo /Kapsaita/418 was found to be 1.0 hectares. In conclusion the regional surveyor found that the ground positions of parcel nos Nakuru / Molo /Kapsaita/309,310,416,417, 418,419 and 420 do not tally with the registry index Map and therefore all the land owners should be involved for the dispute to be resolved. This report was produced by DW3, a land surveyor at the regional survey office known as Anna Njonga Etale. The report was prepared by Peter Wanyama, the regional surveyor, a seasoned and experienced land surveyor who has been transferred to the director of surveys office. The Regional surveyor found that the owner of parcel number 419 had encroached on parcel no 418.
Submissions on Record
In a nutshell, the plaintiff submits that the evidence adduced before this Court, specifically the Title Deed (PEX 1), clearly and unequivocally spells out the Plaintiff as the registered owner of all that land known as NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 hectares. In this regard, the Plaintiff's proprietorship over the entire 2.02 hectares is not a matter of conjecture but a matter of law. Section 26 of the Land Registration Act provides that the certificate of title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner thereof. This title acts as an impenetrable shield against any claims not rooted in the register itself. Furthermore, the Plaintiff's testimony regarding her open, continuous, and long-standing occupation of the land since the year 2000 was effectively corroborated by the Defendant himself.
The plaintiff submits that the Molo Land Disputes Tribunal had no jurisdiction to entertain and determine the dispute relating to land parcel number NAKURU/MOLO/KAPSlTA/418, and that the proceedings and award were not conducted in accordance with the law and the rules of natural justice.
Analysis and Determination
I have carefully considered the pleadings and evidence on record and do find that the plaintiffs land parcel number Nakuru/Molo/Kapsaita/418 and the defendants land parcel number Nakuru/Molo/Kapsaita/419 are not adjacent to each other but are in the same registration area. The two are separated by a parcel of land known as Nakuru /Molo/Kapsaita/420. There is a boundary dispute between the owner of Nakuru/Molo/Kapsita/419, the defendant herein and the owner of Nakuru/Molo/ Kapsita/420 who is not a party to this suit. The Regional surveyor went on the ground and found that the positions of parcels NakuruMolo/Kapsita/ 309,310,416,417,418,419 and 420 do not tally with the registry index Map and therefore there is need for all the parcels to be brought into this matter for the dispute to be settled. The regional surveyor found that the ground acreage for 418 is 1.0 hectares.
The plaintiff prays for a perpetual injunction restraining the Defendant, his employees, servants, agents or any person claiming under him from interfering with the Plaintiff proprietary right and/or enjoyment over land parcel NAKURU/MOLO/KAPSlTA/418 measuring approximately 2.02 hectares. Moreover, she prays for a declaration that the proceedings and decision of Molo Land Dispute Tribunal adopted as decree of Molo Senior Principal Magistrate's court is a nullity, unenforceable of no effect and incapable of being acted upon and/or executed by any person, body and/or entity.
Lastly, an order directed at the Land Registrar, Nakuru Land Registry recalling and cancelling the title held by the defendant to reflect the correct acreage. The orders sought by the plaintiff cannot be granted unless the court ascertains the acreage of the two parcels of land. The circumstances of this case and the evidence given cannot allow the court to determine the issues before it. Before the court can make a determination on the rival ownership of the property, it has to determine the acreage of the adjoining parcels of land. In essence this court is being asked to determine the boundaries of the three parcels of land thus Nakuru/Molo/sita/418,419 and 420.
Section 18 of the Land Registration Act, 2012 (Kenya) establishes that registered land boundaries are generally considered approximate, requiring disputes to be resolved by the Land Registrar rather than courts in the first instance. Courts lack jurisdiction over boundary disputes unless the boundaries are fixed or the Registrar’s mechanism is exhausted. The Section provides as follows:-
18(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 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 situations 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."
Kimiriny v Land Registrar, Narok County; Leperes (Interested Party) [2023] KEELC 18752 (KLR): Reinforced that without a "fixed" boundary notation in the register, the cadastral map is merely for approximation. Masea & another v Sitei & 3 others [2018] eKLR: Affirmed that boundary disputes must be determined by the Land Registrar and not the Environment and Land Court in the first instance. Willis Ocholla v Mary Ndege (Kisumu ELC Land Case No. 137 of 2015): Confirmed that Section 18(2) is mandatory, placing boundary disputes under the mandate of the Land Registrar. Azzuri Properties v Pink Properties Limited [2018] eKLR: Highlighted that parties must follow the statutory mechanism for boundary dispute resolution, rejecting initial court jurisdiction. This court finds that the dispute herein revolves on the boundaries of the three suit parcels of land that should be entertained by the land registrar. The essence of provisions of Section 18 and 19 is to allow the expert in matters to do with boundaries to handle the dispute in the first instance. Even if the court decides to entertain the matter, it cannot be competent to adjudicate the matter to the end as it will still require to fall back to the expertise of the Land Registrar.
The plaintiff is further challenging the decision of the Molo Land Disputes Tribunal made in the award dated 6th of May 2008 and adopted as the judgment of the court and a decree issued on 19th November 2010. I have considered the issue raised by the plaintiff that the Tribunal lacked the jurisdiction to entertain the dispute and do not agree with counsel that the tribunal lacked Jurisdiction because the contention by the defendant before the tribunal was that the plaintiff had encroached on his parcel number Nakuru/Molo/Kapsita/419. Which he claimed that measured 2.02 hectares but was reduced to 3.4 acres whereas the plaintiff claimed that the defendant had encroached on her land.
Section 3(1) of Land Disputes Act (repealed) expressly limited the Tribunal's jurisdiction to civil disputes involving:
a) the division of or the determination of boundaries to land, including land held in common;
b) a claim to occupy or work land; or
c) trespass to land shall be determined by a Tribunal established under Section 4
I do find that the matter was properly before the tribunal as it required the determination of boundary and revolved on trespass.
Further, I do find that the plaintiff did not challenge the decision of the tribunal on appeal before the provincial appeals’ Committee as it then was or judicial review and therefore cannot challenge the decision by way of another suit. Decisions of a Land Disputes Tribunal cannot be challenged by filing a fresh plaint (suit) in a subordinate or high court, as this constitutes improper procedure and an abuse of the court process. Aggrieved parties must use the statutory appeal mechanisms, such as appealing to the Provincial Appeals Committee within 30 days or filing for judicial review. Filing a plaint to challenge a Tribunal award is considered a violation of the established legal framework. Once a tribunal decision is registered in a magistrate's court, it becomes a decree, and attempting to challenge it with a new suit is impermissible. The correct methods to challenge a decision are to appeal to the Provincial Appeals Committee within 30 days or filing for Judicial Review in the High Court or a court of equal status under Order LIII of the Civil Procedure Rules for orders of certiorari or mandamus. To maintain the finality of legal disputes, courts will strike out plaints that seek to reopen matters already decided by a Tribunal, particularly if the award has already been adopted as a court order. The award having been adopted as a judgment of the court and a decree issued, another suit cannot be entertained. The suit has no basis as it seeks to challenge a competent judgment of the lower court and is therefore dismissed with costs.