Ernest Makhokha Osundwa VS Peter Wakasiaka AND NATIONAL LAND COMM AND 1 Others

1. Litigation in this matter commenced on 23^rd April 2018, when Ernest Makokha Osundwa (hereinafter “deceased”) filed Plaint dated 16^th April 2018. The deceased later passed away on 22^nd February 2022, after he had testified, and was substituted by Lucy Nafuna Makokha, pursuant to an order made on 3^rd October 2022. Following the substitution, the initial Plaint was replaced with Amended Plaint amended on 10^th January 2023.
2. It was averred in the Amended Plaint that the deceased was the registered proprietor of land parcel number Kakamega/Moi’s Bridge-II/178 (the suit property) and that the First Defendant who was the proprietor of an adjoining parcel had encroached onto the suit property. The Plaintiff therefore sought judgment against the Defendants for:
3. A declaration that the 1^st Defendant's entry into the Property and the interference with the Plaintiff’s quiet possession thereon are unlawful and amount to trespass to the Property.
4. An order directing the 3^rd Defendant to appoint a licenced surveyor to conduct a survey on the Property to establish its boundaries, and more importantly, to establish if there are any encroachments.
5. An order directing the 2^nd Defendant to carry out a survey of the Property to establish its boundaries, and more importantly, to establish if there any encroachments.
6. A permanent injunction restraining the 1^st Defendant whether by himself, agents or servants from trespassing on the Property.
7. General damages for trespass.
8. Costs of the suit.
9. The First Defendant filed a Statement of Defence dated 15^th May 2018 through which he admitted being proprietor of an adjoining parcel but denied the allegations of encroachment. He averred that the deceased had constantly failed to attend meetings called by local leaders and urged the Court to dismiss the suit with costs.
10. The First Defendant also filed a document titled "Further Amended Statement of Defence and Conter (sic) Claim” dated 10^th August 2020. No leave was sought or obtained prior to filing the said document. I have therefore disregarded it.
11. The Second Defendant filed a Statement of Defence dated 6^th June 2023 through which it denied the averments in the Plaint and stated that the Plaint did not raise any reasonable cause of action against it and that the reliefs sought against it were beyond its legal mandate. It therefore prayed that the suit be dismissed with costs.
12. The Third Defendant did not file any defence.
13. Pursuant to an order made by the Court on 8^th February 2022, the County Surveyor Kakamega visited the site and filed a report dated 7^th February 2023 while the Land Registrar Kakamega also visited the site and filed a report dated 24^th January 2023.
14. The deceased testified on 8^th February 2022 as PW1. He adopted his witness statement dated 16^th April 2018 where he stated that he was the registered owner of the suit property and that he was in occupation. That in March 2008 he realized that the First Defendant had encroached into the suit property and that he approached the area Assistant Chief through letter dated 31^st December 2008 to visit the suit property to settle the dispute amicably. That the area Chief visited the suit property on 23^rd May 2017, but no solution was arrived at.
15. The deceased produced copies of title deed in respect of the suit property, letter dated 31^st December 2008, letter dated 17^th May 2017 and letter dated 21^st March 2018 as his exhibits. He further testified after filing this case, a survey was conducted by Mr Ben Wanyama Situma of Opiyo & Associates who prepared a report dated 15^th May 2021. He produced the report as an exhibit. The deceased further testified that he had been in occupation since 1942 and that nobody had ever complained that he had interfered with any waterway or drainage. That the First Defendant had just imagined in his mind that there is a waterway or drainage between their two parcels then raised a claim.
16. The Plaintiff’s case was then closed.
17. The First Defendant testified next, as DW1. He stated the deceased was his neighbour who was residing in the suit property while DW1 was residing in Kakamega/Moi’s Bridge-II/179. That between the two parcels existed a drainage that was established by the Ministry of Lands and Settlement. He stated that he had never appointed or paid any surveyor to come to the land and that the surveyors who went to the land were appointed and paid by the deceased.
18. Under cross-examination and re-examination, DW1 stated that stated that he was neither aware that a survey was conducted on 11^th May 2021 in the presence of his children nor that his child paid survey fees on his behalf. That he had planted sisal along the boundary between the two parcels and that a drainage running between the parcels existed which was used in the past as an access passage, but the deceased closed it. He added that during the dry season, the drainage could be used as an access. The First Defendant’s case was then closed.
19. David Masila Kimauro, the Deputy Land Registrar at Kakamega County, testified next in regard to his report dated 24^th January 2023. He stated that it was not indicated in the registry index map if there is a river running along the boundary between the two plots. That however, there is a water way between the two plots. He added that he did not go to the site but sent the surveyor and based his report on the surveyor’s report and that a waterway is a natural feature that need not be indicated on the map. Mr Kimauro further stated that his report addresses a possible encroachment since it stated that the suit property measured more by 6 metres. He also stated that the affected parcels were part of a settlement scheme and that the water ways were marked by the adjudication officers during adjudication.
20. Thereafter, the Second and Third Defendants’ cases were closed since they did not attend court despite being served. Directions were thereafter given that parties file and exchange written submissions.
21. The Plaintiff filed submissions dated 26^th January 2024. On the question of whether there is any waterway between the two parcels, it was argued on behalf of the Plaintiff that none exists and that what is there between the parcels is only a boundary. That the Land Registrar did not confirm existence of a waterway and did not visit the site despite the order of the court. The Plaintiff urged the court to totally disregard the Land Registrar’s report and testimony.
22. On the question of whether the First Defendant had encroached onto the suit property, it was argued on behalf of the Plaintiff that the survey map that was produced did not define any waterway as the boundary. That the alleged waterway does not exist, and that any continued use of the suit property as a path amounts to trespass. It was therefore contended on behalf of the Plaintiff that she had established trespass and was entitled to the reliefs sought including KShs 3,000,000 as general damages for trespass.
23. The First Defendant filed undated submissions on 21^st December 2023 and further submissions dated 22^nd February 2024. The two sets of submissions only listed issues for determination without advancing arguments on them save to contend that there existed a waterway measuring six metres between the two parcels.
24. I have carefully considered the parties’ pleadings, evidence, submissions and the authorities cited. The issues that arise for determination are whether the court has jurisdiction, whether the First Defendant had trespassed on the suit property and whether the reliefs sought should issue.
25. Jurisdiction is everything. Without it, the proceedings come to a certain end and the court cannot take any further step. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR.
26. The Supreme Court emphasised the centrality of jurisdiction in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR thus:

A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

1. The parties have not addressed the Court on the issue of jurisdiction. That notwithstanding, the Court must satisfy itself that it has jurisdiction. There is no dispute that the deceased was the registered proprietor of the suit property and that the First Defendant is the proprietor of an adjoining parcel. The First Defendant identified the adjoining parcel as Kakamega/Moi’s Bridge-II/179.
2. The Plaintiff’s case is that the First Defendant had encroached onto the suit property. It is for that reason that she sought judgment against the Defendants inter alia for an order that the Second and Third Defendants conduct a survey of the suit property to establish its boundaries and whether there was any encroachment.
3. The Plaintiff wanted the common boundary shared between the suit property and the First Defendant’s Kakamega/Moi’s Bridge-II/179 established. Both parcels are registered land. It is thus abundantly clear that what is before the court is a boundary dispute.
4. Section 18 of the Land Registration Act provides:

(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).

1. The question that has occupied my mind is whether the boundaries of the affected parcels have been defined under Section 19 (3) of the Land Registration Act. If not then the court lacks jurisdiction.
2. In terms of Section 18 (1) of the Land Registration Act, any cadastral map and filed plan is to be deemed to indicate the only approximate boundaries, unless it is specifically noted in the register that the boundaries of the parcel have been fixed. The Plaintiff did not produce the register of the suit property. I have perused the copy of the title deed that that the Plaintiff produced. There is no indication therein that the boundary had been fixed.
3. The mandate of fixing boundaries is exclusively that of the Land Registrar, even if he is assisted by the District Surveyor. The procedure for fixing boundaries is provided at Section 19 of the Land Registration Act as follows:

(1) If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define 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 fix the boundaries.

(2) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel.

(3) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office 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 fixed under this section.

1. The Registrar is required to define through survey, the precise position of the boundaries in question, file a plan containing the particulars and make a note in the register that the boundaries have been fixed. Whereas the Land Registrar filed a report in this matter, he conceded that he did not visit the site. The Plaintiff has in fact rejected the Registrar’s report, and rightly so. The said report was not accompanied by any plan or any statement that the boundaries were fixed on that occasion. Even the District Surveyor’s report did not have any plan annexed to it. As the Court of Appeal stated in the case of Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others [2020] eKLR, it is only after the Registrar has determined the dispute that parties can move to court.
2. In view of the foregoing, I am satisfied that the boundaries of the suit property have not been fixed and that the court therefore lacks jurisdiction to entertain the dispute. In those circumstances, I need not consider the other issues for determination.
3. I have agonised over whether to make an order requiring the Registrar to fix the boundaries of the subject parcels. Ultimately, I have decided not to go that route. I note that the Plaintiff did not join the Land Registrar as a party. The Registrar only appeared as a witness. Needless to state, the Registrar has a right to a hearing before orders are made against him. The parties will have to move the Registrar to have the boundaries fixed in terms of Sections 18 and 19 of the Land Registration Act before they can approach the Court on any claims of trespass. The Registrar should in turn scrupulously comply with the law regarding fixing of boundaries, failing which the parties should have recourse against him in separate proceedings.
4. In the end, I strike out the Plaintiff’s case. Each party to bear own costs.

Dated, signed, and delivered through Microsoft Teams, at Nyamira, this 13^th day of March 2025.

Delivered in the presence of:

Ms Sila holding brief for Mr Kotonya for the Plaintiff

No appearance for the First Defendant

No appearance for the Second Defendant

No appearance for the Third Defendant

Court Assistant: B Kerubo