https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4469

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITUI** **ELC APPEAL NO. E004 OF 2024** **CHARLES MURU MUIRURI ……………………………… APPELLANT** **VERSUS** **THE HON. ATTORNEY GENERAL ………………… 1ST RESPONDENT** **KITUI DISTRICT LAND REGISTRAR ……………. 2ND RESPONDENT** **KITUI LAND SURVEYOR …………………………... 3RD RESPONDENT** **MUSUMBI MWANZIA(Administrator of the Estate of the** **Philip Maingi Mwanzia …………… 4TH RESPONDENT/APPLICANT** **MESHACK MUTETI MUTUA ……………………….. 5TH RESPONDENT** **STEPHEN NYAMAI WILSON ……………………... 6TH RESPONDENT** **SAMUEL MWANZIA KATHINDAI ………………… 7TH RESPONDENT** **JUDGEMENT** 1. This appeal arose from the outcome of a survey exercise carried out by the 2nd and 3rd respondents – KITUI LAND REGISTRAR and KITUI LAND SURVEYOR – on 29/112023. More particularly, the appeal is contesting the recommendations and determination made after the survey was conducted. The survey itself related to two land parcels – YATTA B2/KANGONDE/1841 and YATTA B2/KANGONDE/1842. It is clear that each of these land parcels has been sub-divided into several smaller parcels. It is clear too that parcel No’s 1841 and 1842 are themselves resultant subdivisions of a then - existing larger original parcel – YATTA B2/KANGONDE/31. The dispute between the parties has a lot to do with the discrepancy or mismatch clearly noticeable in the registered or recorded sizes of the two parcels and the actual sizes on the ground. The actual sizes on the ground are smaller than the registered or recorded sizes. 2. The appellant had sought help from the 2nd and 3rd respondents in order to resolve the problem. The survey that was conducted was actually an endeavour to address the issue. But the recommendations made by 2nd and 3rd respondents were not acceptable to the appellant and he felt aggrieved. That is what provoked the appeal now before this court. 3. The recommendations made were as follows: *(a) That the boundaries lines as claimed by the parties for 1842 which was pointed out during the site visit and recorded by the District Surveyor be recognized as the boundary between YATTA B2/KANGONDE/1841 and YATTA B2/KANGONDE/1842.* 1. *The disputed portion of land as shown in the drawing by the District Surveyor should be included to form part of Yatta B2/Kangonde 1842 (3138, 3139, & 3140).* 2. *Any titles emanating from 1841 that lie on the disputed portion to be surrendered to the Land Registrar for appropriate action.* 3. *The proprietor of Yatta B2/Kangonde/1841 may seek recompense from the sellers.* 4. From the aforestated recommendations and the determination made, the appellant filed his appeal. The appeal is reproduced herein below adverbum: 5. *The appellant is an adult male of sound mind whose address for purposes of this suit is C/o Gitau Mwara Co. Advocates, Metro Fairview Towers, Ground Floor shop No. 8, Pangani Shopping Centre, Bunjumbura Road, and P.O. Box 100289 – 00101, Nairobi.* 6. *The 1st respondent is the legal representative of the Government of Kenya and also the 2nd & 3rd defendants who are Kitui District Land Registrar and Kitui County Surveyor (National Government) in the Ministry of Lands, Public Works, Housing Urban Development. Their address for service is C/A State Law Office, Sheria House P.O. Box 40112 Nairobi (service through the plaintiff’s (sic) Advocate’s office).* 7. *The 4th respondent are the joint administrator of the estate of Philip Maingi Mwanzia (deceased) whose address for purposes of this suit is C/o D. K. Mboloi & Co. Advocates, P.O. Box 1150 – 900100 (service through the plaintiff’s (sic) Advocates office).* 8. *The appellant avers that on 7th December 2018, he bought 17.043 acres for Kshs. 29,250,000/= out of the original land title No. YATTA B2/KANGONDE/31 whose actual size was about 45 acres physically on the ground but they were wrongly stated as 50 acres on the original title deed. The vendors were NELLIE ITHAE MWAZIA (deceased) and her two children, MUSUMBI MWANZIA and KITHIO MWANZIA, who are the joint administrators of the estate of DR. PHILIP MAINGI MWANZIA (deceased). A sale agreement for sale of 50 acres (modified by collateral letters to sale of only 17 acres) was executed on 7th December 2018 by the parties therein which the Appellant will rely on for their full import and legal effect.* 9. *The Appellant avers that he has been in actual physical occupation, physical use, and physical possession of his 17.043 acres out of Title No. YATTA B2/KANGONDE/31 since December 2018 under clauses 6, 7, 8, 9 & 10 of the sale agreement executed on 7th December 2018 and he cleared full payment on 5th August 2019 per clause 9 of the sale agreement.* 10. *The Appellant avers that mutation forms for sub-division of Title No. YATTA B2/KANGONDE/31 shows 2 blocks A & B were sub-divided and demarcated as follows:* 11. *Block A – Title No. YATTA B2/KANGONDE/1841 6.9 Ha or 17.043 Acres – for the Appellant CHARLES MURU MUIRURI.* 12. *Block B - Title No. YATTA B2/KANGONDE/1842 13.1 Ha or 32.257 Acres – for NELLIE ITHAE MWANZIA and her 2 children – MUSUMBI MWANZIA and KITHIO MWANZIA as the joint administrators of the estate of DR. PHILIP MAINGI MWANZIA (deceased) 4th Respondent in the suit.* 13. *The Appellant avers that he lawfully sub-divided his Title No. YATTA B2/KANGONDE/1841 into 120 new plots and on 15/4/2021 he was duly issued by the 2nd Respondent with 120 new title deeds. Title No’s. YATTA B2/KANGONDE/2081 to 2200 which correspond physically on the ground with his 6.9 Ha or 17.043 acres.* 14. *The Appellant avers that Block B – Title No. YATTA B2/KANGONDE/1842 was wrongly stated as 13.1 Ha or 32.257 acres as physically on the ground it was just 27.957 acres as the correct physical size of the original Title No. YATTA B2/KANGONDE/31 was 45 acres/44.77 acres and not 50 acres. This was confirmed by the Government Surveyor from Kitui District Survey Office when he demarcated the Appellant’s Title No. YATTA B2/KANGONDE 1841 – 6.9 Ha or 17.043 acres.* 15. *The 3 new Title Deeds were wrongly issued as follows:* 16. *Title No. YATTA B2/KANGONDE/3138 – 4.3667 Ha – 10.785 Acres.* 17. *Title No. YATTA B2/KANGONDE/3139 – 4.3667 Ha – 10.785 Acres.* 18. *Title No. YATTA B2/KANGONDE/3140 – 4.3667 Ha – 10.785 Acres.* *TOTAL = 13.1 Ha – 32.957 Acres.* 1. *The Appellant avers that from Title No. YATTA B2/KANGONDE/1842 the 3 new titles for Title No. YATTA B2/KANGONDE/3138, Title No. YATTA B2/KANGONDE/3139, and Title No. YATTA B2/KANGONDE/3140 were issued on 31st August 2020 which encroached on his 17.043 acres or 6.9 Ha namely Title No. YATTA B2/KANGONDE/1841.* 2. *The Appellant avers that the three defective title deeds Title No. YATTA B2/KANGONDE/3138, YATTA B2/KANGONDE/3139 and YATTA B2/KANGONDE/3140 should be cancelled by a Land Court as they overlap on the Appellant’s new 120 title deeds. Title No’s 2081 – 2200 which were sub-divided from the Appellant’s former Title No. YATTA B2/KANGONDE/1841 – 6.9 Ha or 17.043 Acres.* 3. *The Appellant avers that the current owners of the three defective titles which were sub-divided and demarcated from Block B Title No. YATTA B2/KANGONDE/1842 are:* 4. *Title No. YATTA B2/KANGONDE/3138 – 4.3667 Ha – 10.785 Acres – MESHACK MUTETI MUTUA, STEPHEN NYAMAI WILSON and SAMUEL MWANZA KATHIDAI.* 5. *Title No. YATTA B2/KANGONDE/3139 – 4.3667 Ha – 10.785 Acres - MESHACK MUTETI MUTUA, STEPHEN NYAMAI WILSON and SAMUEL MWANZA KATHIDAI.* 6. *Title No. YATTA B2/KANGONDE/3140 – 4.3667 Ha – 10.785 Acres- MESHACK MUTETI MUTUA, STEPHEN NYAMAI WILSON and SAMUEL MWANZA KATHIDAI.* 7. *The Appellant avers that he needs a Court Order to cancel the three defective title deed for title No. YATTA B2/KANGONDE/3138, YATTA B2/KANGONDE/3139 and YATTA B2/KANGONDE/3140 which have encroached and overlap on Block A – title No. YATTA B2/KANGONDE/1841 which has now been sub-divided into 120 new title deeds. Title No. YATTA B2/KANGONDE/2081 – 2200 which have been issued to him by the Kitui District Land Registry.* 8. *The Appellant avers that in order to have a new Rim Sheet Map for the 120 title deeds Title No. YATTA B2/KANGONDE/2081, 2082, 2083, 2084, 2085 up to 2200 demarcated out of Title No. YATTA B2/KANGONDE/1841 – 6.9Ha or 17.043 Acres he requested the Kitui District Land Registrar/ 2nd Respondent for the following determinations:* 9. *To ascertain and fix the boundaries of the above 120 parcels of land upto where physically on the ground the 6.9Ha or 17.043 Acres are physically located.* 10. *The 2nd Respondent who is the Kitui District Land Registrar do correct the boundaries of adjacent 3 parcels of land namely: Title No. YATTA B2/KANGONDE/3138, Title No. YATTA B2/KANGONDE/3139 and Title No. YATTA B2/KANGONDE/3140 to physically conform to 27.957 Acres or equivalent in Hectares on the ground.* 11. *The 2nd Respondent to authorize production of new Rim Sheet Map for his new 120 title deeds to conform to the accurate measurements ascertained above.* 12. *The Appellant avers that the 5th, 6th and 7th Respondents entered his land in March 2021 and uprooted all beacons on his parcel of land.* 13. *He applied on 8th November 2023 to both the Kitui District Land Registrar and Kitui County Surveyor (National Government) in an application by registered owner to ASCERTAIN AND FIX THE BOUNDARIES OF LAND FOR 120 TITLE DEEDS, NAMELY; TITLE NUMBERS: YATTA B2/KANGONDE/2081, 2082, 2083, 2084, 2085 up to 2200 demarcated out of Title No. YATTA B2/KANGONDE/1841 – 6.9 Ha or 17.043Acres dated 3rd November 2023 that the 3 defective title deeds: Title No. YATTA B2/KANGONDE/1338, Title No. YATTA B2/KANGONDE/3139 & TITLE No. B2/KANGONDE/3140 should be cancelled as they overlap on the new 120 title deeds No’s. YATTA B2/KANGONDE/2081 – 2200 which were sub-divided from the Appellant’s former Title No. YATTA B2/KANGONDE/1841 6.9 Ha or 17.043 Acres.* 14. *The Appellant avers that the current owners of the three defective titles which were sub-divided and demarcated from BLOCK B – Title No. YATTA B2/KANGONDE/1842 are:* 15. *Title No. YATTA B2/KANGONDE/3138 – 4.3667 Ha – 10.785 Acres – MESHACK MUTETI MUTUA, STEPHEN NYAMAI WILSON and SAMUEL MWANZA KATHIDAI.* 16. *Title No. YATTA B2/KANGONDE/3139 – 4.3667 Ha – 10.785 Acres - MESHACK MUTETI MUTUA, STEPHEN NYAMAI WILSON and SAMUEL MWANZA KATHIDAI.* 17. *Title No. YATTA B2/KANGONDE/3140 – 4.3667 Ha – 10.785 Acres- MESHACK MUTETI MUTUA, STEPHEN NYAMAI WILSON SAMUEL MWANZA KATHIDAI.* 18. *The Appellant avers that under Rule 40 (1) of the Land Registration (General Regulations, 2017 made under the Land Registration Act (No. 3 of 2012) the Kitui District Land Registrar had/has statutory powers to:* 19. *Ascertain the correct physical boundaries of former Title No. YATTA B2/KANGONDE/1841 – 6.9 Ha or 17.043 Acres.* 20. *Ascertain the physical boundaries where the total 6.9Ha or 17.043 Acres of the total 120 new titles start and end on the ground.* 21. *Cancel the 3 defective title deeds for title No. YATTA B2/KANGONDE/3138, title No. YATTA B2/KANGONDE/3139, and Title No. YATTA B2/KANGONDE/3140 which have encroached and overlap on his Block A - title No. YATTA B2/KANGONDE/1841 which has now been sub-divided into 120 new title deeds Title No’s. YATTA B2/KANGONDE/2081 to 2200.* 22. *The Appellant avers that on 29th November 2023 the 2nd Respondent conducted a hearing to determine the boundary dispute between Charles Muru Muiruri and the Kitui Land Registrar in the presence of 10 Interested Parties and on 14th December 2023, the 2nd Respondent delivered a biased, a faulty finding, determination and made 4 recommendations because;* 23. *Despite the County Surveyor finding that the original size of the original title No. YATTA B2/KANGONDE/31 was 44.73 acres and not 49.42 acres as per the original Title No. YATTA B2/KANGONDE/31 and for official records, he still upheld the correct acreage for title No. YATTA B2/KANGONDE/1842 was 32.257 acres and not the actual 27.957 acres after the Appellants 17.043Acres are subtracted.* 24. *Despite the overwhelming evidence that the Appellant’s title No. YATTA B2/KANGONDE/1841 for 17.043 Acres (6.9 Ha) was demarcated earlier in April 2021, the 2nd Respondent refused, failed, and declined to rectify the physical boundary on the ground to conform to the 17.043 acres (6.9 Ha).* 25. *Despite the Respondent finding the 3 title deeds: Title No. YATTA B2/KANGONDE/3138, YATTA B2/KANGONDE/3139 and YATTA B2/KANGONDE/3140 for the 4th, 5th and 6th respondents did not tally with the actual size of 27.957 acres on the ground, the 2nd Respondent upheld that the 3 faulty, defective titles which are actually 27.957 acres physically on the ground and not 32.37 acres be retained in the official records.* 26. *Despite the 2nd and 3rd Respondents ascertaining that the original title No. YATTA B2/KANGONDE/31 was never 50 acres but only 44.73 acres, the 2nd and 3rd Respondents refused, failed and declined to alter this historical injustice despite the powers given by Rule 40 of the Land Registration (General) Regulations, 2017.* 27. *The Appellant avers that the faulty, unlawful, illegal, and biased* *recommendations of the 2nd Respondent should be set aside forthwith and the honourable court corrects the illegal, unlawful, and historical injustice in the official record which purported to state that the original title No. YATTA B2/KANGONDE/31 was 50 acres or 49.42 acres instead of the accurate 44.73 acres per the ground surveyor’s finding on 29th November 2023 and per the surveyor’s report dated 29th November 2023.* 1. *The Appellant avers that the 4 recommendations which are the subject of this appeal are as follows:* 2. *The boundary line as claimed by the parties for 1842 which was pointed out during the site visit and recorded by the District Surveyor be recognized as between Title No. YATTA B2/KANGONDE/1841 and Title No. YATTA B2/KANGONDE/1842.* 3. *The disputed portion of land known as shown in the drawing by the District Surveyor should be included to form part of Title No. YATTA B2/KANGONDE/1842 (3138, 3139 & 3140).* 4. *Any titles emanating from 1841 that lie on the disputed portion to be surrendered to the Land Registrar for appropriate action.* 5. *The proprietor of Title No. YATTA B2/KANGONDE/1841 may seek recompense from the sellers.* *REASONS WHEREOF the Appellant prays for judgement against the respondents jointly and severally for the following orders:* 1. *The 4 recommendations by the 2nd Respondent and the whole findings and determination dated 14th December 2023 be set aside forthwith.* 2. *A permanent injunction be issued to restrain the 5th, 6th and 7th Respondents or their officers, servants, or agents from trespassing, entering, erecting structures or dealing or interfering with any portion of the appellants 120 new title deeds Title No.’s YATTA B2/KANGONDE/2081 – 2200 all totalling 6.9Ha – 17.034 acres physically on the ground.* 3. *A declaration that the Appellant’s parcel of land Block A Title No. YATTA B2/KANGONDE/1841 measuring 6.9Ha – 17.043acres which was registered in the name of CHARLES MURU MUIRURI should not have been interfered with in acreage by all the respondents whatsoever.* 4. *A declaration that the issuance of Title No. YATTA B2/KANGONDE/3138, Title No. YATTA B2/KANGONDE/3139 and Title No. YATTA B2/KANGONDE/3140 (formerly original Block B – Title No. YATTA B2/KANGONDE/1842 – 13.1 Ha – 32.257 acres) jointly to the 5th defendant, 6th defendant and 7th defendant by the 2nd Defendant was illegal, unlawful, wrong and both the acreage in the green cards and the physical plans, subdivision maps and registry index maps should be rectified forthwith by the 2nd and 3rd Respondents.* 5. *An order of CANCELLATION be issued ordering the 2nd and 3rd Respondent to cancel YATTA B2/KANGONDE/3138 Title No. YATTA B2/KANGONDE/3139 and Title No. YATTA B2/KANGONDE/3140 which have encroached on the Appellant’s former Block A - YATTA B2/KANGONDE/1841 measuring 6.9Ha – 17.043 Acres forthwith.* 6. *An order of SURRENDER be issued ordering the intended 5th, 6th and 7th Respondents to surrender for cancellation YATTA B2/KANGONDE/3138, Title No. YATTA B2/KANGONDE/3139 and Title No. YATTA B2/KANGONDE/3140 which have encroached on the Appellant’s 120 new title deeds: YATTA B2/KANGONDE/2081 to 2200 all totalling 6.9 Ha or 17.043 Acres forthwith failing which after 30 days they stand cancelled forthwith.* 7. *An Order of RECTIFICATION be issued to the 2nd and 3rd Respondents to rectify the Registry Index Map Sheets for the Appellant’s 120 new title deeds Title No’s. YATTA B2/KANGONDE/2081 to 2200 all totalling 6.9 Ha or 17.043 Acres and a new Registry Index Map Sheet for the 120 new title deeds be issued to the Appellant forthwith.* 8. *An order of RECTIFICATION be issued to the 2nd and 3rd Respondents to rectify the Registry Index Map Sheet for the 5th, 6th and 7th Defendants title deeds: cancellation YATTA B2/KANGONDE/3138, Title No. YATTA B2/KANGONDE/3139 and Title No. YATTA B2/KANGONDE/3140 and re-issue 3 new title deeds totalling 27.957 acres as the correct physical size of the 4th defendants title No. YATTA B2/KANGONDE/1842 forthwith.* 9. *The Respondents to bear the costs of the suit jointly and severally.* 10. The 1st, 2nd and 3rd Respondents opposed the appeal via replying affidavit dated 20/6/2024 sworn by SIMON NGALAMA. SIMON deposed, inter alia, that the Appellant applied for a boundary dispute resolution exercise through the office of Kitui District Land Registrar – 2nd Respondent. Simon is the area surveyor and consequent upon the Appellant’s application, he and the 2nd Respondent visited the site and in presence of the Appellant and some other ten (10) parties collected evidence and compiled a report. That report contained recommendations made by the 2nd Respondent. The Appellant was dissatisfied with both the report and the recommendations. 11. Simon made reference to “independent surveyors report” filed by the Appellant, noted he was absent when it was conducted, termed it new evidence at the appeal stage, and urged that it be expunged. He further faulted the report in several ways, among them that it shows the disputed area as 0.903 Ha while in his report, he had established that the disputed area was 1.46Ha; that there were no visible beacons or boundary marks shown by the Appellant during the site visit and no sign that any had been put and subsequently vandalized. 12. The area claimed by the Appellant was said to have an actual ground size of 18.3acres which is different from the one shown by the independent surveyor, which is indicated to be 17.05acres. To Simon, this clearly shows that the Appellant is unaware of his boundary demarcation. It was farther stated that the only visible boundary was a barbed wire fence with hanging *“live poles” and “vandalized concrete poles”* which had reportedly been put in place by the Appellant himself and which was *“confirmed by neighbours as the boundary between the two parcels of land.”* The explanation for the barbed wire fence was said to be that the original parcel of land No. 31 had been sub-divided giving rise to parcels No’s 1841 and 1842, with the said fence marking the boundary between the two resultant parcels. 13. The 2nd Respondent was said to have heard all the parties and the report compiled was said to be based on the input of all. The court was urged to accept it and dismiss the appeal herein. 14. The 5th, 6th and 7th respondents opposed the appeal vide a replying affidavit dated 6/5/2025 sworn by MESHACK MUTETI MUTUA. According to MESHACK, this appeal is *“misconceived and fictitious”* and also *“a waste of precious judicial time.”* He further stated that the appeal should *“be dismissed in limine”* because it was filed outside the allowed time or period. Meshack averred that by the time he and the two others purchased parcel No. 1842, the Appellant had already taken possession of his own parcel No. 1841. He said that there was a clear boundary between the parcel No. 1841 and 1842 and therefore, the complaints by the Appellant were said to *“be fuelled by ulterior motives.”* It was pointed out that the land shown by the Appellant during site visit physically translated to 18.31 Acres which is greater or bigger than his 17.03 acres. 15. Further, the Appellant’s position that his 120 title deed must fit into 17.043 Acres was said to be wrong as it is based on an erroneous position that the surveyor who carried out the sub-division was 100% correct or accurate *“which is practically impossible.”* 16. The Appellant was also said to have stated in a letter dated 29/6/2023 to KENHA (this is one of the parties represented by one BARASA KUSIMBA during the site visit that yielded the report which gave rise to this appeal) that only the 5th, 6th and 7th Respondents, land parcel No. 3138 bordered his plot No’s. 2114, 2115, 2116, 2185, 2186 and 2192. According to Meshack the Appellant therefore *“has no business terming our other two parcels defective …”* 17. An averment was further made that the Appellant started complaining when Kenya National Highway Authority (KENHA) visited the area seeking to purchase land for construction of a weigh bridge. Parcel No. 3138 happened to be choosen for the purpose. This did not allegedly sit well with the Appellant. He is said to have wanted to create the impression that parcel No. 3138 was disputed land. The Appellant was said to have desired to offer KENHA his own parcel of land for purchase. 18. The Appellant was said to lack authority to assert that the 5th, 6th and 7th Respondents’ titles are defective. The recourse for the Appellant is allegedly to recover from the seller what he may have lost in terms of size of the land. These respondents themselves said they also got shocked that the ground size of the land they purchased was 30.02 acres yet what they purchased was 32 Acres. 19. Ultimately, the court was urged to dismiss the Appeal with costs. 20. To dispose of the Appeal, the Appellant filed submissions dated 18/2/2025. The Respondent’s chose not to file submissions. They asked the court to rely on what they had already filed. 21. The submissions of the Appellant commence with setting out the prayers asked for. The Appellant then proceeds to give a highlight of the substance of the grounds on which the Appeal is premised. He submitted that he purchased 17.043 acres of what was initially land parcel No. YATTA B2/KANGONDE/31. The purchase price for the whole land was 29,250,000/= and the documented size of the land was said to be 50 acres. Its actual size on the ground was however 45 acres. Nellie Ithae Mwanzia, Musumbi Mwanzia and Kithio Mwanzia, all of whom were joint administrators of the estate of the deceased registered owner – Dr. Philip Maingi Mwanzia - were the sellers. The sale commenced in the year 2012 and was initially meant for the entire parcel of land but there were changes thereafter that ultimately resulted in sale of 17Acres. The sale was completed in the year 2019. 22. The Appellant was said to have occupied and/or possessed the land since year 2012. The entire parcel of land was subdivided into two, with one piece – YATTAB2/KANGONDE/1841 – becoming the Appellant’s land while the other – YATTA B2/KANGONDE/1842- remained in the hands of the joint administrators. The joint administrators then sold parcel No. 1842 to 5th, 6th and 7th Respondents. These Respondents sub-divided the land into parcel No’s. 3138, 3139 and 3140. The area covered by these three parcels of land was said to constitute an encroachment into the Appellant’s parcel of land. 23. Parcel No. 1841 owned by the Appellant had a recorded or registered size of 6.9Ha which translates to 17.043 Acres while parcel No. 1842 had a documented or registered size of 13.1Ha, which translates to 32.257Acres. On the ground however, things were different. The entire parcel No 31 was said to be 44.73Acres (or approximately 45 acres) and the recorded or registered sizes of the resultant parcels No’s 1841 and 1842 were therefore difficult to reflect accurately on the ground. 24. The Appellant submits that he was the first to purchase his portion and is therefore entitled to get the recorded or registered size of the portion sold to him while the other purchasers, meaning 5th, 6th and 7th respondents, should retain or get the rest. According to him, he was the first in time and his land should not be interfered with. The various orders asked for are meant to assert his rights or interests and also ensure record rectification and record cancellation to give legal imprimatur or approval to his rights and/or interests. 25. I have considered the appeal as filed, the responses filed by the various respondents, and the appellant’s submissions. I think the main issue in this matter is whether the merits of the appeal have been demonstrated. Alongside the main issue are other subordinate issues, like whether the appeal was filed out of time (raised by 5th, 6th and 7th respondent) and/or whether the first surveyor’s report (or government surveyor’s report, if you like) is biased and faulty as alleged by the Appellant, and/or further whether the second surveyor’s report (or private surveyor’s report, if you will) made available by the Appellant amounts to introduction of new evidence at the appeal stage (as alleged in the response by 1st, 2nd and 3rd respondents). 26. On whether the appeal was filed outside the time allowed, it is important to appreciate that the survey report that provoked this appeal is dated 14/12/2023. It is clear from the report that a 30 days’ period was granted within which an aggrieved party could appeal. The appeal herein was filed on 17.1.2024. It appears clear that the 5th, 6th and 7th respondents view the date of filing as outside the 30 – day’s period given on 14/12/2023. 27. But the 5th, 6th and 7th Respondents are wrong and here is why: Order 50 Rule (4) of the Civil Procedure Rules, 2010, provides as follows: ***“Except where otherwise directed by a judge for reasons to be recorded in writing the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both day included, shall be omitted from any computation of time (whether under these rules or any order of the court) for the amending, delivering, or filing any pleading or the doing of any other Act.”*** It is obvious that the 30-day period of appeal granted in the survey report falls within the period which rule 4 (supra) allows to be omitted in the computation of time. If that period is omitted or removed from computation, it can readily be seen that the Appellant was well within the 30-day period within which the appeal could be filed. The other issue was raised by the 1st, 2nd and 3rd respondents when they asserted that the second survey report made available by the Appellant amount to adduction of new evidence at the appellate stage without leave of court. It is true that new evidence during appeal can only be allowed with leave of the court. But my reading of the court record, particularly on 7/2/2024, shows that the Appellant was allowed to conduct the second survey and the Respondents themselves were also allowed to file their responses. If anybody wanted to object to the survey on the basis that it would be new evidence at the appellate stage, that was the time to do so. The 1st 2nd and 3rd Respondents did not raise any contestation and it is rather late in the day now for them to aver that a court – endorsed survey amounts to objectionable new evidence. The court rejects this averment by these respondents. The survey report is properly before court. The only thing to consider is whether it is acceptable or not. 1. It is now necessary to focus on the main issue namely: Whether the merits of the Appeal have been demonstrated. It appears to me that the sub-division of the original parcel No. 31 into parcel No’s. 1841 and 1842 took place before the 5th, 6th and 7th Respondents came into the picture. The recording of sizes – 6.9Ha for parcel No. 1841 and 13.1Ha for parcel No. 1842 – seem to have been guided at the time by the existing records rather than the actual ground reality or situation. When the 5th, 6th and 7th Respondents later came into the picture as purchasers, the official recorded size of parcel No. 1842 – which was the parcel of land they were purchasing – was 13.1Ha (which translates to 32.357 Acres). 2. When the original parcel No. 31 was sub-divided into parcel No.’s 1841 and 1842 one would ordinarily expect that a boundary giving the two parcels their district identities was put in place. What I am reading from the records is that there was a barbed wire fence separating the two land parcels. Reference to that fence was made both in the contested first survey and also in the second survey conducted at the instance of the Appellant. The 5th, 6th and 7th Respondents also make reference to it as the boundary they were shown when they were buying the land. 3. Through his own ways or means, the Appellant seems to have been able to establish that the size of the original parcel No. 31 was actually less on the ground than what the official records indicated. According to the Appellant, the ground size was 44.73Acres (rounded off to 45 acres) which is approximately 18.12Ha. It seems clear that the Appellant got to know this on an earlier occasion when the Government surveyor visited to demarcate his land parcel No. 1841. 4. The difference in size between the recorded or registered extent or size of the original parcel No. 31 and the actual size on the ground can be established by subtracting the recorded or registered size – 49.42 Acres – from the actual size on the ground – 44.73Acres. This would go thus: 49.42 – 44.73 = 4.69Acres. This, in my view, is where the bone of contention is. It appears clear that the Appellant would wish to have the 5th, 6th, and 7th respondents wholly absorbing this reduction in size. His submission is that he was the first to purchase and is therefore entitled to the recorded size of his parcel No. 1841. But those who carried out the contested survey exercise and even the 5th, 6th and 7th Respondents have a different view. 5. Further, the Appellant averred that the 5th, 6th and 7th Respondent had titles issued to them reflecting the recorded or registered sizes of their parcels of land. This, in the aggregate, brings the total size to 32.257 Acres, which the Appellant says overlaps into his land thus interfering with some of his plots. 6. But the 5th, 6th and 7th Respondents deposed in their response to the Appeal that though what they were buying amounted to slightly over 32 Acres, what they actually got or own on the ground is 30.2 Acres. These Respondents have actually accepted this reduction in size and are ready to move on. It appears to me clear that these Respondents have already lost over two acres of what they were buying. They have accepted this, the larger sizes shown on their titles notwithstanding. But the Appellant wants them to absorb all the reduction in size, with he himself loosing nothing. The justification for this in his view is that he was the first in time in terms of purchase and he should therefore not loose anything. 7. There is the equity of the first in time. The applicable maxim is that where equities are equal the first in time prevails *(Latin: Qui Prior est tempore, potior est jure)*. My understanding is that when two or more parties hold competing claims of equal merit, the one whose claim came first takes priority or precedence. But it is also the law that if the opposing claimant is a bonafide purchaser for value without notice of the prior equitable interest, and has acquired legal title, his claim will defeat the interest of the first-in-time claimant. 8. In this matter, it seems to me clear that the 5th, 6th and 7th Respondents were not aware that the portion of land they were buying or the entire parcel No. 31 for that matter, was actually smaller than the recorded or registered size. They seem to have only gotten to know it when the disputed survey was conducted. In order for the court to agree with the Appellant, it needed to be shown to it clearly that these respondents knew that the actual land size available was smaller than the recorded or registered size. In absence of clear evidence to that effect, then the 5th, 6th and 7th Respondents deserve to be brought within the exception that applies to the first-in-time equity principle. 9. Further, the 5th, 6th and 7th Respondents said that the actual size of the land they own is 30.2 Acres and not the over 32 Acres shown in the official records. This has no rebuttal from the Appellant and in fact from the second survey initiated by the Appellant himself, that same size is captured as 29.844Acres. If it is appreciated that the sizes mentioned are approximations, then the 29.844 Acres or 30.2 Acres can be said to reflect the acceptable size of the land actually owned by these Respondents on the ground. This confirms that these respondents did not get the exact size of what they purchased. 10. I have already pointed out that the difference in size between the recorded or registered size of the entire parcel of land (parcel No. 31) and its actual size on the ground is 4.69 Acres. The 5th, 6th and 7th Respondents were buying 32.357Acres (or 13.1 Ha). They got 30.2 Acres, meaning that they have already absorbed a loss of some two Acres. Equality is equity and what this means is that courts of law should, if the imperative of justice so demands, favour equal or fair division of property, burdens, and/or losses. My view is that there should be proportionate equity in this matter and the Appellant also has to absorb some loss. That absorption will also amount to some two Acres. I take this position because though the Appellant would like to enjoy the benefits of the equity of being first-in-time he has not shown that the other purchasers – 5th, 6th and 7th Respondents - had actual or implicit knowledge of the mismatch in size between what appeared on records and what was on the ground. In my own estimation, the more appropriate equity consists in the application and acceptance of the maxim that equity is equality. The application of this maxim would require that the reduction in size of the land on the ground be treated as a shared burden between the purchasers of the two parcels of land. 11. The Appellant would also wish that the court be guided by the second survey report. The court is reluctant to grant this wish. The reluctance arises from the following: 12. In land disputes where boundary is an issue, a land survey conducted without involvement or notification of affected stakeholders cannot be said to be very legally sound. It is almost always prone to being contested by those left out and can be invalidated or rejected by the courts. In the matter under consideration, it is clear that the court allowed the second survey exercise to be conducted. But the survey report made available seems to show that only the Appellant participated in the exercise. In my view, the other parties should have been invited via notices or other acceptable means. Such notices should already be in the court file and this would have dispelled the concern that the exercise was unilateral or exparte. Affected stakeholders have a legal right to be present or to be represented as leaving them out is a violation of natural justice. The second survey report lacks the participatory approach or the inclusive character of the first survey report. In my view, it would not be farfetched if someone were to say that it is self-serving. 13. The findings made in the second survey differ fundamentally in some material aspects from the findings of the first survey. The second survey was conducted by a private surveyor and the first survey was by a Government surveyor. Generally, when a private surveyor’s finding differ from a Government surveyor’s findings, the findings of the Government survey takes precedence for official or legal purposes. This is not to say that a well conducted private survey cannot be accepted by the court. What the court is saying is that such report has to be good and/or of high quality and its merits vis-a-viz a Government surveyor’s report have to be readily apparent. That does not seem to be the position here. I have already pointed out the flaws or shortcomings of the second the survey. 14. Further, the Appellant alleged that the first survey report was biased and/or faulty. He also seems to think that the size of the 5th, 6th, and 7th Respondents’ land on the ground is the same size reflected or shown in the titles they hold. My view is that these assertions by the Appellant were not well demonstrated. There is nothing to show that there was disproportionate weight or preference given to the 5th, 6th and 7th Respondents’ evidence. The recommendations made seem to me to be justifiably deducible or derivable both from the hearing that took place and the survey exercise that was undertaken. As for the sizes of the 5th, 6th and 7th Respondent’s land, the ground size of the land seems to be 30.2 Acres while the registered size is 32.257 Acres. 1. The upshot, in light of the foregoing, is that the merits of the appeal herein have not been demonstrated. The appeal is therefore dismissed with costs to the Respondents. **JUDGEMENT DATED, SIGNED** and **DELIVERED** in open court at **KITUI** this **30th DAY** of **JUNE, 2026**. *In the presence of,* *Court Assistant - Musyoki* *Gitau Mwara for Appellant* *Peter Kuria for M/s. Momanyi for 1st to 3rd Defendants* *Kithome for 5th, 6th & 7th Defendants* **A. KANIARU** **JUDGE- ENVIRONMENT & LAND COURT, KITUI**