[2023] KEHC 25446 (KLR)

Chebet v Korosi & 2 others (Civil Appeal 60 of 2020) [2023] KEHC 25446 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25446 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 60 of 2020

SM Mohochi, J

November 16, 2023

Between

David Chirchir Chebet

Appellant

and

Kiptoo Arap Korosi

1st Respondent

Japheth Kibet Too

2nd Respondent

Samuel Tanui Too

3rd Respondent

(Being an Appeal from the judgment of Hon. Y. K. Khatambi S.R.M delivered on 10th March, 2020 at Nakuru in Chief Magistrate’s Court Civil Suit No. 176 of 2015)

Judgment

Background 1. This appeal stems from the subordinate’s court case Civil Suit No. 176 of 2020 filed vide the Appellant’s Plaint dated 23rd February, 2015. The dispute in the subordinate court arose from an alleged unlawful encroachment upon a portion of that parcel of land known as Nakuru/baraget Settlement Scheme/1581 which he owns.

2. The Plaintiff’s- Appellant’s Case was dismissed for want of evidence hence the instant Appeal.

The Appeal 3. The Appellant being dissatisfied with the trial court judgement, lodged the present Appeal vide Memorandum of Appeal dated 28th April, 2020. The Appeal is based on the following grounds.i.That the Trial Magistrate erred in law and in fact, in disregarding the Appellant's evidence adduced, the submissions filed and the authorities in support hence arriving at an erroneous finding.ii.That the Trial Magistrate erred in law and in fact in disregarding the corroborative evidence tendered by the Appellant's witnesses touching on the subject matter hence arriving at an unfair determination.iii.That the Trial Magistrate erred in law and in fact in dismissing the Plaintiffs suit despite finding that the surveyor's analysis that parcel of Land Number 1581 did not exist on the ground was premature.iv.That the Trial Court erred in law an in fact in heavily relying on the evidence of the private surveyor, Elvis Ngetich notwithstanding that his mandate was specific to ascertain the beacons following a contempt of court application dated 6th August, 2015. v.That the Trial Magistrate erred in law and in fact in considering the surveyor's incomplete report hence arriving at an unfair determination.vi.That the Trial Magistrate erred in law and in fact in blaming the Plaintiff for the Surveyor's professional negligence hence arriving at an erroneous determination.vii.That the Trial Magistrate erred in law and in fact in finding that the Plaintiff neither proved that he had a prima facie case with high chances of success nor that he would suffer irreparable loss if the orders sought were not granted despite the overwhelming unrebutted evidence adduced.

4. The Appellant thus seeks that the Appeal be allowed and the Judgement delivered on 10th March, 2020 dismissing the case be set aside and the same be allowed with costs to the Appellant.

5. The Appeal was disposed of by way of written submissions, the Appellant filed his written submissions on the 13th December, 2022 and served upon the Respondents on the 15th December, 2022. Consequently, on the 28th March, 2023, the Respondent served the Appellant his submissions dated 27th March, 2023.

6. The Respondents, in his aforementioned submissions, submitted inter alia, that the instant appeal having been filed out of time without leave of this court hence should be struck out.

7. Surprisingly when this matter came up for directions on the 4th July 2023 the Respondents counsel Mr. Misati was absent and the court reserved the matter for judgment.

Submissions Appellant’s submissions 8. As whether the instant Appeal was filed out of time? The Appellant submit in the negative contending that, Section 79G of the Civil Procedure Act, provides thus:-“Time for filing appeals from subordinate courts Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:

9. That, the trial court, vide a Certificate of Delay issued on the 6th October, 2021 stated inter alia:-1]Application for copies of the Proceedings and judgment in this suit was made by the M/S Elizabeth Wangari & Co Advocates for the Defendant and was lodged in court on the 13th August, 2020. [21-;[3That the time taken by this Court to prepare and supply the copies of the certified proceedings and judgment were from 29th August, 2020 to 28th September, 2021, that is 401 days."(Emphasis added) (See page 102 of the record of Appeal).

10. That its judgment delivered on 1st March, 2020, the trial court dismissed the Appellant's suit after finding, inter alia:“I am satisfied that the Plaintiff has proved on a balance of probabilities that he is the registered owner of parcel number 1581 and that the parcel of land is different and distinct from parcel number 182,"".. in the absence of sufficient proof with regard to the boundary separating the two parcels of land the court cannot hold with certainty that the defendants encroached onto the plaintiff's parcel of land. In order to make a conclusive finding that indeed the defendants trespassed on the plaintiff's parcel it was imperative upon the plaintiff to ensure that the boundary between the two parcels of land was identified and the extent of the encroachment ought to have been clearly captured. The photographs of alleged illegal structure and the fact that the plaintiff holds a valid title is not sufficient proof of the alleged encroachment.""... having failed to establish/identify the boundary between parcel number 182 and 1581, the court finds that the alleged encroachment has not been proved. It then follows that an eviction order cannot issue."

11. That, this Appeal was mentioned for directions on 3rd November, 2022 and the Court directed that it be disposed-off by way of written submissions and pursuant to the Court's directions the Appellant seek reliance to the case of Edward Nyingi Mukundi -vs- Terry Wanjiru Kariuki & Another [2020] eKLR, the Court of Appeal cited the case of Abok James Odera & Associates V John Patrick Machira t/a Machira & Co. Advocates |2013| eKLR, where the court stated regarding the duty of a first appellate court:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.

12. Further reliance has been placed on the case In Mursal & Another -vs- Manese (2022] KEHC 282 (KLR), Mativo J (as he then was) stated thus:-A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law, The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings Supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign it's own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.

13. That a first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.

14. The Appellant associate themselves with the reasoning of the learned judges in the above-cited authorities and invite this Court to reconsider the evidence before the lower court, re-evaluate, re-assess and re-analyse the extracts on the record and draw its own conclusions.

15. That in the case of Mwangi -VS- Wambugu (1984) KLR 453, the Court of Appeal pronounced itself as follows regarding the execution of a first appellate court's duty: -“A court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding and an appellate court is not bound to accept the trial Judge's finding of fact if it appears either that, he has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally."

16. That in light of the above-cited authority, the Appellant invites this Court to decide on the following condensed issues:a.Whether the Appellant proved his case on a balance of probability?b.Whether the trial court misdirected itself on a material point of law?c.Who should bear the costs of the appeal?

17. On the 1st issue as to whether the Appellant proved his case on a balance of probability is argued on condensed grounds 1, 2,3,4,5,6,7,8 & 10 of the appeal under this head and submit in the affirmative.

18. That, it was the Appellant's evidence at the trial court that there were existing beacons on the ground placed by the initial surveyor. However, when the private surveyor visited the site, the beacons had been uprooted and the private surveyor did not take measurements of the suit land. (pages 83-85 of the Record of Appeal).

19. The Appellant produced photographs of structures illegally constructed by the Respondents on the suit parcel of land. He testified further that despite the issuance of an injunctive order against the Defendants, they continued with construction of the structures thereon (pages 82-83 of the Record of Appeal).

20. DWI confirmed during cross-examination that the photographs produced in court LR No. Nakuru/baraget Settlement Scheme/1581 does not exist on the by the Appellant were of the houses they built thereon. However, he insisted that on the ground, no road l abuts the two parcels of land (the suit parcel and L.R No. Nakuru/baraget Settlement Scheme/182) and that the Defendants Owned the whole parcel of land.

21. DW1 also confirmed during cross-examination that according to the map, a road albuts the two parcels of land and that the government records showed that the Appellant was allocated the suit parcel of land on 12th October, 2005.

22. PW2, a District Land Registrar testified that the register confirmed that the Appellant was the registered owner of the suit parcel of land and the title deed thereof was issued on the 12th October, 2005 while Rafael Kibet (Deceased) was the registered proprietor of L.R No. Nakuru/baraget Settlement Scheme/182. She produced the respective green cards as Appellant's Exhibits no 6 and 7. (page 91 of the record of appeal).

23. PW3, a District Land Surveyor testified that the above parcels of land are distinct and that on the ground they are separated by a road. (page 91-93 of the Record of Appeal).

24. The court in Paul Hirbo Isatu -vs- Abdirahaman Ake [2018| eKLR cited with approval the case of Andrew Marigwa -vs- Josphat Ondieki Kebati ELC Kisii No. 1163 of 2016 (formerly H.C.C No. 82/2011) where the learned Judge stated thus:-“.. The Land Registrar is the custodian of the records relating to land, have the technical ability or capacity to determine, establish and fix boundaries of parcels of land as required under the Land Registration Act 2012"

25. That it is imperative to note that while the Appellant herein laid claim to the suit parcel of land only and testified as much during hearing, DW1 (the 2nd Respondent) insisted that no road abuts the two parcels of land on the ground, parcel 1581 is not on the ground and that the Respondents own the whole parcel of land. (page 94 of the Record of Appeal).

26. DW1 testified on behalf of the Defendants, now Respondents. According to the witness, his father (the 1st Respondent) purchased Plot Number 182 at Bararget Settlement Scheme in September, 2012 from Elizabeth Talai Kibet, the widow of the late initial owner Zephaniah Kibet where upon they assumed possession and occupation of the land. (Pages 24 (witness statement) and 93 & 94 of the Record of Appeal).

27. That DWI confirmed that, the parcel of land was yet to be transferred due to a caveat. The Respondents did not tender any evidence as to the agreement for sale of the parcel and/or the capacity of the alleged seller thereof.

28. That, it is imperative to note that it was PW2's uncontroverted evidence that Rafaelkibet (Deceased) was at all material time the registered proprietor of L.R No. Nakuru/baraget Settlement Scheme/182. (page 91 of the Record of Appeal).

29. On the other hand, it was the Respondents' narrative that the 1st Respondent purchased the parcel of land from the widow of one Zephaniah Kibet, a total stranger to the entries in the official land records.

30. Reliance is placed on the case of Johnson Kinyua -vs- Simon Gitura Rumuri |2011] EKLR the Court of Appeal found that proprietorship can be established by producing a copy of an official search certified by the Registrar or a certified copy of an extract of the green card which gives the details of the entries.

31. And In Betty Mukui & Another -vs- Ben Mokaya & 2 Others [2021] eKLR, Mutungi, J stated as follows:-“Under section 26 of the Land Registration Act 2012 a certified copy of the register is prima facie evidence that the person shown on the register is the absolute and indefeasible owner of the property and such title can only be challenged on grounds of fraud and /or misrepresentation and/or the title was acquired illegally or unprocedurally or through a corrupt scheme."

32. The Appellants echo the sentiments of the learned judges in the above-cited authorities and urge this Court to not only be guided therewith but to also find and hold that the Defendants failed to prove the proprietorship of their own suit land.

33. Further reference is made to the case of Munyali -vs- Musyoka [2022] KEELC 3247 (KLR), the Court stated thus:-“It is true that the Court lacks the technical capacity to determine such disputes and that is why that mandate has been given to technical experts. Under section 18 and 19 of the Land Registration Act No. 3 of 2012, the Land Registrar and the Surveyor who is the custodian of the land records have been given the power and mandate to handle issues relating to boundary disputes."

34. The Appellants echo the sentiments of the learned judges in the above-cited authorities and urge this Court that PW2 and PW3 are the technical experts entrusted with the said statutory authority. The trial court therefore ought to have been properly guided by PW2 and PW3s evidence. more so to the effect that the two (2) subject parcels of land are separated by a road on the ground.

35. The Appellant submits that, without prejudice to the foregoing paragraph and noting that the Respondents did not produce any government record evidencing their ownership of the whole parcel of land, it is our humble submission that the trial court ought to have downed its tools on the issue of encroachment and/or trespass at this point - in light of the fact that on one hand, there was collaborative evidence by the duly authorized custodian of official land records while on the other, a blanket claim to a parcel of land without any iota of evidence of lawful ownership of the same.

36. That, the trial court nonetheless went ahead to consider the report of the private surveyor, Elvis Ngetich Kiplangat, which report was unreliable as found by the trial court at page 53 of the Record of Appeal as follows:“.. in cross examination it became apparent that the surveyor failed to go the extra mile in establishing and or ascertaining the exact location of parcel umber 1581. In his report, he stated that the said parcel of land was not existing on the ground, in examination he stated that had he measured the parcel of land then he would have been able to conclusively state whether the said parcel of land was in existence. In view of the foregoing, I find that the Surveyor failed to conduct a conclusive ground assessment and analysis as a consequence the analysis that parcel number 1581 did not exist on the ground was premature."

37. That it is however worthy of note that per the court order issued pursuant to the contempt of court application dated 6th August, 2015 on the 3rd July, 2015 and confirmed through subsequent orders, the duty of the surveyor was limited to ascertaining the existing beacons and boundaries.

38. The private surveyor failed in execution of the said order and therefore it is our humble submission that the trial court had no basis for placing reliance on the private surveyor's report as to identification of the beacons by the parties.

39. In Kagina -vs- Kagina & 2 Others Civil Appeal No. 21 of 2017 (2021) KECA 242 KLR, the Court of Appeal held thus:-“It is a trite principle of evidence that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts which are proved, exclusive of the evidence of the expert, to the satisfaction of the court according to the appropriate standard of proof.The importance of proving the facts underlying an opinion is that the absence of such evidence deprives the court "of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence." An expert report is therefore only as good as the assumptions on which it is based.".

40. That, guided by the holding in Kagina -vs- Kagina (Supra), the Environment and Land Court held thus in Joseph Evans Karubiu -vs- Peter Mugambi [2022] EKLR:-“So, the trial court in applying the principles set out in the Kagina case (supra) in admission of e expert opinion above was faced with a situation where the expert reports were inconclusive and or qualified d under the circumstances of the facts obtaining. It was therefore within the discretion of the trial court to look at the entire evidence of the parties in totality and not merely rely exclusively on the expert evidence.

41. The Appellant echos, the sentiments of the learned judges in the above-cited cases and urge this Court to be guided therewith.

42. The upshot of the Appellant submissions under this head is that the evidence of PW2 and PW3 was credible hence safe to be relied upon by the court as the same was corroborated by the documentary evidence and we urge the court to so find and hold. On the contrary, the private surveyor's evidence and report as already found by the court left more questions than answers and was thus unreliable and of no probative value to the court.

43. On the 2nd issue as to whether the trial court misdirected itself on a material point of law? The Appellant has condensed grounds 9 and 11 of the appeal under this head and submit in the affirmative.

44. That the learned trial court stated in its judgment at page 57 of the Record of Appeal as follows:-“I have carefully considered the pleadings herein; I opine that the claim at hand is a boundary dispute. The issues outstanding as between the plaintiff and the defendants can only be resolved once the boundary is demarcated, identified, fixed and/or ascertained. In view of the uncertainty with regard to existence of the boundary between the two parcels off land it then follows that the court cannot find that the defendants' action violated the rights and interest of the plaintiff in parcel umber 1581. "

45. It is Appellant submissions that, the trial court erred in law and in fact in proceeding to determine the suit on merit having arrived at a finding that the claim at hand was a boundary dispute.

46. That Section 18(2) of the Land Registration Act provides as follows:-(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.

47. That page 53 of the Record of Appeal, the trial court acknowledged the professional negligence of the private surveyor and arrived at a finding, that the private surveyors report was inconclusive and that the analysis thereof that Land Parcel Number 1581 did not exist on the ground, was premature-

48. In light of the foregoing, it is crystal clear that the boundaries had therefore not been determined in accordance with Section 18 of the Land Registration Act yet the trial court proceeded to hear and determine the suit on merit.

49. The Court of Appeal in Menkar Limited -vs- Ratilal Ghela Samat Shat & 2 other Į2019] eKLR held as follows in interpreting section 15(2) of the Land Registration Act vis-a-vis section 13 of the Environment and Land Act: -“We are alive to the provisions of Section 13 of the ELC Act and 18(2) of the Registered Land Act, both provisions must be interpreted objectively to promote the rule of Law and not to undermine it.. ""Having looked at the two enactments within the context of the case before us, We do not think that the jurisdiction of the ELC is divested especially where the issues in dispute are intertwined with others. As the judge unravels the intricate web of disputes, we find nothing wrong in the order requesting the Land Registrar who is the custodian of the official records of land ownership to avail them to assist the court make a determination on the germane issue of whether the wall constructed on the disputed plot is within its boundary and whether there was trespass'"

50. Guided by the above-cited Court of Appeal decision, the Environment and Land Court sitting on appeal in Munyali v Musyoka [2022| KEELC 3247 (KLR)(Supra) found merit in the appeal and remitted the matter back to the Chief Magistrate's Court for hearing afresh with directions that the determination of the boundary be referred to the Land registrar for hearing and determination and a report be filed with the court. That in allowing the appeal, the Court stated thus: -“Following the findings in the above Court of Appeal decision I do find that the jurisdiction of the ELC is not completely divested by the provisions of section 18 of the Land Registration Act especially where the issues in dispute are not confined to ascertainment of boundaries alone but as in this case involves compensation for trespass and special damages for damage and destruction to trees and vegetation and continued cultivation, farming and planting on the disputed portion of land. Following the above decision, I do find that the trial court ought to have referred the dispute to the Land Registrar for determination of the boundary dispute in accordance with the provisions of the Land Registration Act before determining the claim of trespass and destruction of property.".

51. The Appellant associate themselves fully with the reasoning of the learned judges in the above- cited authorities and urge this Court to be bound thereto.

52. It is the Appellant further submissions that the overriding objective of the proceedings in the Environment and Land Act requires the Court in exercise of its authority and jurisdiction to be guided at all stages of trial by Article 159 of the Constitution, Sections 1A and 1B of the Civil Procedure Act and section 3 of the Environment and Land Court Act so as to facilitate just, expeditious, proportionate and accessible resolution of disputes.

53. The trial Court thus erred in disregarding these fundamental statutory provisions thus arriving as an erroneous finding and that the appeal is merited and should be allowed with Costs.

Respondent’s submissions 54. The Respondent in the submissions dated 27th march, 2023 opposing the Appeal submitted and reminded court of its duty as a fist Appellate court.That it is the 1st, 2nd and 3rd Respondent's submission that the Appeal herein should be dismissed and or Struck-Out for being statutory non-compliant, statutory time barred, not properly before court and it is therefore incompetent.

55. That, the Appellant herein filed his memorandum of appeal dated 28th day of April 2020 on the 30th day of April. 2020. The appeal was filed two months from the date of delivery of judgment being appealed against. The appeal herein ought to have been filed within thirty (30) days of delivery of the judgment. The judgment was delivered on the 10th day of March 2020.

56. The appeal herein therefore was filed outside the thirty (30) days prescribed under the law and without the leave of court.

57. The certificate of delay filed herein clearly confirms that the Appellant is guilty of latches. The appellant sought for proceedings on august 2020 six months down the line since the delivery of judgment.

58. Despite the proceedings being availed to the Appellant in October 2021 the record of appeal was filed one month later on the 3rd day of November 2021.

59. The Appellant's evidence was that he was issued with a title deed before being shown his land parcel. And that he had never lived or resided on his land parcel.

60. The Appellant sought orders for a surveyor to move to the disputed land parcels with a view to ascertain the boundaries using beacons. A report was accordingly generated and filed in court. The surveyor was the Appellant’s witness and confirmed the existence and actual location of the Respondent's land parcel Nakuru/ Baraget Settlement Scheme/182.

61. That the Respondents testimony was that they are the beneficial owners of land parcel Nakuru/baraget Settlement Scheme/182 and took possession and occupation and have been living on the aforesaid land parcel.

62. That the Nakuru/baraget Settlement Scheme/ 1581 and Nakuru/ Baraget Settlement Scheme/182 are two different and distinct land parcels.

63. The Appellant and his witnesses failed to tender evidence of trespass and encroachment.

64. The Appellant out rightly failed to prove his case on balance of Probability thus the Appeal is incompetent and urge this Court to uphold the decision of the Trial Court and dismiss this appeal with costs to the Respondents. Reliance is placed on case Civil Application No. 3 of 2016, In The Supreme Court of Kenya County Executive of Kisumu -vs- County Government of Kisumu & 8 0thers.

Duty of the Court 65. This Court is minded to render Substantive justice over procedural justice the Substratum of the dispute between the Appellant and Respondents is the boundary separating their two distinct and separate properties.

66. The Order of Dismissal of the suit by the trial Court did not resolve the dispute amongst the parties herein as the “Swahili-sheng” adage goes “kwa ground mambo ni tofauti” the parties remain neighbors in fact notwithstanding the fact the Applicant is yet to take possession of his property.

67. This judgment is intended to ensure the dispute is resolved in finality and that the state should ensure such disputes are resolve administratively and or in a quasi-judicial manner as by law provided

68. The authenticity of both titles to the parties has not been confirmed and their existence has been confirmed by non-other than the registrar of land.

69. This is a first Appeal and this court has a duty to evaluate the evidence presented at the trial court afresh together with the with the judgement and make its own independent conclusions. While at it, the court has to bear in mind that it did not have the opportunity to see or hear the witnesses as the trial court had the advantage. This duty was stated in Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123.

70. Similarly, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, the court stated:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

71. The Preliminary challenge on jurisdiction is found to be bereft of merit and the Appellant’s delay is well justified I find no fault on the question thus allowing me to consider the Appeal on its merits.

72. This court regards the 3 issues as issues that will determine the Appeal:d.Whether the Appellant proved his case on a balance of probability?e.Whether the trial court misdirected itself on a material point of law?f.Who should bear the costs of the appeal?

73. As to whether the Appellant proved his case on a balance of probability? The Court is of the view that the Appellant failed to prove trespass and it can thus be safely said that he lost on toast respect however the court misapplied and disregarded the law while dismissing the suit.

74. This Court recalls Section 18(2), the Land Registration Act, 2012 (LRA), which prohibits this Court from entertaining any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in that section. It provides as follows:“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”.

75. Section 19 of LRA, 2012 bestows the duty to fix boundaries to registered land is vested in the Land Registrar. It provides as follows:“19. (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.

76. The intention of the LRA, 2012 was to locate the dispute resolution within the specialist parameter as the 1st port of call of which would be in appreciation of the specialism involved in boundary dispute resolution as was held in the case of Republic v Firearms Licensing Board & Another Ex parte Boniface Mwaura [2019] eKLR Mativo J stated as follows; The Court of Appeal provided the Constitutional rationale and basis for the doctrine in Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others,[43] where it stated that:-“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts...This accord with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

77. The rationale was aptly pronounced by the bench in the Matter of the Mui Coal Basin Local Community,[44] where the High Court stated thus:-“The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that Courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."

78. The powers vested in this Court under Article 162 (2)(b) read together with Section 13 (2) of the ELC Act does not exclude the determination of boundaries. It is also true that Section 18 (2) prohibits this Court from hearing a boundary dispute unless the boundaries have been fixed in accordance with Section 20. In other words, the law is saying that disputes relating to general boundaries are in the province of the Land Registrar under Section 19 of the said Act. The reasoning is sound because the Land Registrar is possessed of technical scientific skills and expertise to accomplish this.

79. I concur with the legal proposition that, where a statute has provided for a mechanism of dispute resolution, the Court cannot abrogate that mechanism. It is therefore pertinent that a litigant must exhaust the said mechanism before moving to the next level.

80. I have perused the Record of Appeal and find the Trial Court have been in error where it held that;“I am satisfied that the Plaintiff has proved on a balance of probabilities that he is the registered owner of parcel number 1581 and that the parcel of land is different and distinct from parcel number 182,"".. in the absence of sufficient proof with regard to the boundary separating the two parcels of land the court cannot hold with certainty that the defendants encroached onto the plaintiff's parcel of land. In order to make a conclusive finding that indeed the defendants trespassed on the plaintiff's parcel it was imperative upon the plaintiff to ensure that the boundary between the two parcels of land was identified and the extent of the encroachment ought to have been clearly captured. The photographs of alleged illegal structure and the fact that the plaintiff holds a valid title is not sufficient proof of the alleged encroachment.""... having failed to establish/identify the boundary between parcel number 182 and 1581, the court finds that the alleged encroachment has not been proved. It then follows that an eviction order cannot issue."

81. In the trial court, I recall the land registrar confirming before court the existence of both L.R No. Nakuru/baraget Settlement Scheme/1581 owned by the Appellant and L.R No. Nakuru/Baraget Settlement Scheme/182 owned by the Respondents.

82. The contention of the Plaintiffs that the parcels are adjacent to each other separated by a road is an issue that the Land Registrar together with the Director of Survey, is capable of ascertaining.

83. The Director of Survey is empowered under Section 15-17 of the LRA to alter and rectify a boundary lines or position of a boundary based on a cadastral map based on subdivision plan, combination plan or any other approved plan necessitating the alteration of the boundary. The Land Registrar has repository powers under Section 19 of the LRA to affix boundaries subject to notice to the land owners.

84. Having analyzed the available evidence and the issues above, I am of the view that strict Application of the provisions of Sections 15-20 of the Land Registration Act should finally resolve the root of the dispute and give meaningful justice to all the parties herein, thus finds and holds that;a.The Appeal succeeds and the judgment in the Trial Court is hereby set aside.b.An Order is hereby Issued directed at the Registrar of Lands Nakuru, pursuant to and in exercise of his powers under Sections 18-20 of the Land Registration Act undertake a Re-survey of both L.R No. Nakuru/baraget Settlement Scheme/1581 and L.R No. Nakuru/baraget Settlement Scheme/182. c.An Order to alter and rectify a boundary lines or position of a boundary based on a cadastral map based on subdivision plan, combination plan or any other approved plan necessitating the alteration of the boundary, directed at the Director of Survey Nakuru is hereby issued.d.That should the Re-survey as ordered in paragraph (b) above, find Trespass on the part of the Respondents. An Order is hereby issued to the Respondents to forthwith remove and relocate their structures from the Appellant’s land L.R No. Nakuru/baraget Settlement Scheme/1581. e.A failure and or disregard to Order (d) above shall allow Orders of eviction to be automatically issued by the Environment and Land Court.f.Having noted previous hostilities aimed at disrupting survey efforts, this court Orders that, the exercise of Re-survey be accorded adequate security by the OCS of the police station in whose jurisdiction the two properties are located.g.An Order is hereby issued Transferring this file to the Environment and Land Court, to oversee execution of the Orders (a-f) above and any other consequential, administrative or judicial procedures towards determination of the dispute.h.Costs of this suit are awarded to the appellant.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 16TH DAY OF NOVEMBER, 2023. .................................S. MOHOCHI (JUDGE)In the Presence of;Court Assistant: ScholaAppellants: Elizabeth Wangare & Co. AdvocatesRespondents: Nelko Misati & Co.Advocates