JOSEPH WANJAU NGARI VS PETER MURIITHI AND THE LAND REGISTRAR NYERI AND 1 Others

R U L I N G

1. In the Application dated 10.4.2025, the Applicants have made an Application for leave to Appeal against the Decision of the Land Registrar, Nyeri County in his Report dated 19.11.2024 regarding the boundary dispute lodged by the Applicants on Land Parcel Number GIKONDI/ KIRONGI/ 717 belonging to them on one hand and the 1^st and 2^nd Respondents’ Land Parcel Number GIKONDI/KIRUNGI/718 both parcels of land having been subdivided from GIKONDI/KIRUNGI/78 in 1989. 
2. The Application is said to be brought under Article 40 of the Constitution of Kenya, 2010 sections 14 – 19 of the Land Registration Act 2012, sections 1A, 3A, 3B of the Civil Procedure Act and Regulation 40(b) of the Land Registration (General) Regulations, 2017. 
3. The Applicants are intent on seeking the stay of execution of the aforesaid Decision by the Land Registrar on the boundaries of the suit lands pending the hearing and determination of the intended Appeal. 
4. Further, an interlocutory injunction is also sought in order to maintain the status quo and to restrain the 1^st and 2^nd Respondents from continuing construction, trespassing, disposing of, dealing with, transferring, or in any way interfering in any manner whatsoever with the area in dispute situate between the 1^st and 2^nd Appellants’ Land Parcel No. GIKONDI/KIRUNGI/717 and 1^st and 2^nd Respondents’’ land Parcel No. GIKONDI/KIRUNGI/718. 
5. The Applicants have also sought extension of time to allow them  file an Appeal against the Respondents out of time arising from the Decision of the Land Registrar, Nyeri on the boundaries of the suit lands and the filing of any required documents relating to the Appeal as the court would deem fit to grant.
6. An intended draft Appeal is attached to the Application which the Applicants seek that the same be deemed duly filed should their Application for extension of time be granted
7. The Grounds upon which the Application is made are that the Appeal involves the two parcels of land aforesaid.  The two were subdivided equally in 1989 from Parcel No.LR. GIKONDI/KIRUNGI/78 with the Applicants being the sole beneficiaries of GIKONDI/KIRUNGI/717 and the 1^st and 2^nd Respondents being the sole beneficiaries of GIKONDI/KIRUNGI/718. 
8. When the Applicants lodged the dispute with the 3^rd Respondent at Mukurweini CM ELC Miscellaneous Application No.E003 of 2024 the Report by the Land Registrar dated 19.11.2024 was made but only availed to the Applicants on 1.4.2025, outside the 30 days’ timeline for an Appeal to be lodged. The said Report is averse to the interests of the Applicants. 
9. The Applicants, beneficiaries of the Estate of Ngari Wanjau (Deceased), their father’s estate, are at the risk of being disinherited of their birth rite and that this Application for leave has been brought to court without inordinate delay. 
10. None of the Respondents opposed the Application although the first 2 Respondents appeared in court on the hearing date of the same and without saying much, the 2 said that they opposed the Application for the extension of time to Appeal.
11. Under Order 37 Rule 8 of the Civil Procedure Rules:

An Application under the Land Registration Act, 2012 other than under Part VII and Part VIII thereof shall be made by Originating Summons unless there is pending a suit involving the same lands when the Application may be made in that suit

1. Time to file an Appeal from the Decision of Land Registrar is provided for under Sections 14 to 19 of the Land Registration Act and the Land Registration (General) Regulations 2022. General powers of Land Registrars:-

14. General Powers of Land Registrars

(1) The Chief Land Registrar, County Land Registrars or any other land registrars may, in addition to the powers conferred on the office of the Registrar by this Act—

(a)require any person to produce any instrument, certificate or other document or plan relating to the land, lease or charge in question, and that person shall produce the same;

(b)summon any person to appear and give any information or explanation in respect to land, a lease, charge, instrument, certificate, document or plan relating to the land, lease or charge in question, and that person shall appear and give the information or explanation;

(c)refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;

15

1. The office or authority responsible for the survey of land shall prepare and thereafter maintain a map or series of maps, to be known as the cadastral map, for every registration unit.
2. The parcel boundaries on such maps shall be geo-referenced and surveyed to such standards as to ensure compatibility with other documents required under this Act or any other law.

Maps, Parcels and Boundaries

1. Power to alter boundary lines and to prepare new editions
2. The office or authority responsible for the survey of land may rectify the line or position of any boundary shown on the cadastral map based on an approved subdivision plan, approved combination plan or any other approved plan necessitating the alteration of the boundary, in the prescribed form, and in accordance with any law relating to subdivision of land that is for the time being in force.
3. Whenever the boundary of a parcel is altered on the cadastral map, the parcel number shall be cancelled and the parcel shall be given a new number.
4. The office or authority responsible for the survey of land may prepare new editions of the cadastral map or any part thereof, and may omit from the new map any matter that it considers obsolete.
5. Any rectification to the cadastral map in accordance with this section shall be notified to the Registrar by the submission of the rectified cadastral map and all the approvals that necessitated the amendments.[Act No. 28 of 2016, s. 9.]
6. Approval for further surveys
7. Further surveys may be made for any purpose connected with this Act, but such surveys shall be used to amend the cadastral map only if it is approved by the office or authority responsible for the survey of land.
8. This section shall not preclude the Registrar from keeping in the registry records of cadastral information and maps approved by the office or authority responsible for survey.
9. The office or authority responsible for the survey of land shall submit to the Commission a copy of the cadastral maps relating to public land and the Commission shall be a depository of the maps.[Act No. 28 of 2016, s. 10.]
10. Boundaries
11. 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.
12. 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.
13. 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).
14. Fixed boundaries
15. 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.
16. 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.
17. 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.
18. Maintenance of boundaries
19. Every proprietor of land shall maintain in good order the fences, hedges, stones, pillars, beacons, walls and other features that demarcate the boundaries, pursuant to the requirements of any written law.
20. The Registrar may in writing, order the demarcation within a specified time of any boundary mark, and any person who fails to comply with such an order commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings.
21. The Registrar may in writing, order which of adjoining proprietors shall be responsible for the care and maintenance of any feature demarcating a common boundary, and any proprietor so ordered to be responsible for the care and maintenance of the boundary feature who allows the boundary feature or any part of it to fall into disrepair, be destroyed or removed commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings.
22. Interference with boundary features
23. Any person who defaces, removes, injures or otherwise impairs a boundary feature or any part of it unless authorized to do so by the Registrar commits an offence and is liable on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding two hundred thousand shillings or to both.
24. Any person convicted of an offence under subsection (1), whether or not any penalty is imposed upon the person, is liable to pay the cost of restoring the boundary feature, and the cost shall be recoverable as a civil debt by any person who is responsible under this section for the maintenance of the feature.
25. Combinations and subdivisions
26. Subject to authentication of the cadastral map, if contiguous parcels are owned by the same proprietor and are subject in all respects to the same rights and obligations, the Registrar, on application by the proprietor, may combine these parcels by closing the registers relating to them and opening a new register or registers in respect of the parcel or parcels resulting from the combination.
27. Upon the application of a proprietor of a parcel for the division of that parcel into two or more parcels, and authentication of the cadastral map, the Registrar shall effect the division by closing the register relating to the parcel and opening new registers in respect of the new parcels resulting from the division, and recording in the new registers all subsisting entries appearing in the closed register:

Provided that nothing shall be done under this section that would be inconsistent with the provisions of this Act or any other written law.

1. Reparcellation

(1)Subject to section 15 and authentication of the cadastral map, on the application of the proprietors of contiguous parcels who are desirous of changing the layout of their parcels, and with the consent in writing of all other persons in whose names any right or interest in the parcels is registered and of any cautioner, the Registrar may—

(a) cancel the registers relating to those parcels and prepare new registers in accordance with the new edition of the cadastral map; or

(b)refuse to effect the reparcellation if the Registrar considers that the proposed reparcellation involves substantial changes of ownership, which should be effected by transfers without invoking this section, in which case, the Registrar shall direct the proprietors accordingly.

(2)Upon reparcellation, the new parcels shall vest in the persons in whose names they are registered.

And under the Land Registration (General) Regulations, 2017, Regulations 40 to 45:

Regulation 40. Application for re-establishing a missing boundary or ascertainment of a boundary in dispute

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.

1. 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.

Regulation 41. Application for ascertaining and fixing boundaries

1. An interested person may apply to the Registrar for the ascertaining and fixing of boundaries of land under section 19 (1) of the Act, in Form LRA 23 set in the Sixth Schedule.
2. The notice issued by the Registrar under section 19(1) of the Act shall be in Form LRA 24 set out in the Sixth Schedule.
3. When making a decision under section 19(1) of the Act, the Registrar shall follow the procedure outlined in regulation 40.
4. In view of paragraph 40(6) of the Land Registration (General) Regulations, 2017 the Applicants were supposed to appeal within 30 days from the date of the Decree/Report of the Land Registrar which is dated 19.11.2024 but the same was not brought to their attention until 1.4.2025 in spite of the Applicants’ request way back on 14.1.2025. 
5. After the same was supplied to the Applicants on 1.4.2025, the Applicants made the Application for leave to appeal against the said Decree 9 days thereafter which cannot be said to have been after inordinate delay. 
6. The Respondents never responded to the Application but only said in court on 26.7.2025 that they objected to the Application without stating any grounds of objection. 
7. I therefore grant the Applicants’ Application dated 10.4.2025.  The cost of this application shall abide the outcome of the intended Appeal.  Time will be enlarged by 30 days within which time the Applicants are granted leave to lodge the intended Appeal against the Land Registrar’s Decision/Report dated 19.11.2024.

Dated, Signed and Delivered in Nyeri this 24^th day of July, 2025

MUGO KAMAU

JUDGE