[2006] KEHC 2078 (KLR)
The court found that the amendment to the Registry Index Map was made following a lawful boundary dispute resolution and accurately reflected the ground occupation as it had existed since demarcation. Both parties conceded that there had been no change in physical occupation since the issuance of titles in 1988. The...
Source-derived case information.
- Citation
- [2006] KEHC 2078 (KLR)
- Parties
- Plaintiff: Daniel Kimani Njihia; Defendant: Francis Mwangi Kimani; Defendant: District Land Registrar Muranga District
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6085 of 1990
- Procedural Posture
- Civil Case / Judgment
- Outcome
- suit dismissed with costs to the first defendant
- Judges
- JL Osiemo
- Legal Topics
- Boundary Disputes, Land Registration, Trespass, Rectification of Registry, Survey and Mapping
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kimani Njihia
Plaintiff
Francis Mwangi Kimani
Defendant
District Land Registrar Muranga District
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the amendment of the Registry Index Map unlawfully deprived the plaintiff of 0.62 acres of land.
- 2 Whether the first defendant should be ordered to give vacant possession of the disputed 0.62 acres to the plaintiff.
- 3 Whether the second defendant should be ordered to re-amend the Registry Index Map to restore the plaintiff's boundary.
Ratio Decidendi
The court found that the amendment to the Registry Index Map was made following a lawful boundary dispute resolution and accurately reflected the ground occupation as it had existed since demarcation. Both parties conceded that there had been no change in physical occupation since the issuance of titles in 1988. The plaintiff's claim was based solely on the map amendment and not on any actual dispossession or trespass. As such, the court held that the plaintiff had not been deprived of land in fact, and there was no basis for granting the orders sought. The suit was therefore dismissed with costs to the first defendant.
Court Disposition
suit dismissed with costs to the first defendant
Orders
- The plaintiff's suit is dismissed.
- The plaintiff shall pay the costs of the suit to the first defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 6085 of 1990
DANIEL KIMANI NJIHIA……………….............................................................................………………....PLAINTIFF
VERSUS
FRANCIS MWANGI KIMANI………………….............................................................................………DEFENDANT
JUDGMENT
This claim arises out of a land dispute between the plaintiff and the defendant. The plaintiff is the registered proprietor of land parcel NO.Loc.1/MUKARARA/253 while the first defendant is the registered proprietor of land parcel NO.LOC.1/MUKARARA/960.
The second defendant is the District Land Registrar Muranga District and was sued in his official capacity.
The plaint claims that about 0. 62 acres were removed from his parcel of land NO.LOC.1MUKARARA/253and added to the defendants land parcel NO.LOC.1/MUKARARA/960 and filed this suit seeking orders that the first defendant be directed to give vacant possession of the said area of 0. 62 acres formally part of parcel NO.LOC.1/MUKARARA/253 and further that an order do issue to the second defendant directing him to re-amend the Registry Index Map Boundary between land parcel NO.LOC.1/MUKARARA/253and land parcel NO.LOC.1. /MUKARARA/960 and thereby relocating the boundary of the plaintiff’s land parcel to its original and correct position. The plaintiff also seeks damages for trespass against the first defendant plus costs of this suit.
The plaintiff in his evidence told the court that he is the registered proprietor of land parcel NO.LOC1/MUKARARA/253 measuring 4. 2 acres or thereabouts. In 1988 when he went to check the survey map at the Muranga Land Registry Offices, he found that a portion of 0. 62 acres had been removed from his land parcel NO.LOC.1/MUKARARA/253 and added to the land of the first defendant land parcel NO.LOC.1/MUKARARA/960. He came to learn that the changes were caused by the second defendant through the request of the first defendant and decided to instruct a lawyer to file this suit.
The first defendant in his evidence told the court that he is the registered proprietor of land parcel NO.LOC.1/MUKARARA/960. He realized that his parcel of land looked smaller than the physical land he actually occupied. He contacted the District Land Registrar Muranga about the dispute. Sometimes in 1988 there was a land dispute between parcels LOC.1/MUKARARA/253 and LOC.1/MUKARARA/311.
The land Registrars together with the District Surveyor visited the disputed parcels and found out that parcel No.311 crossed the road since the time of demarcation. The boundaries of that piece of land across the road were surveyed and the Land Registrar authorized the amendment of the Registry Index Map.
Almost at the same time of the dispute the owner of parcel No.311 applied for subdivision. The land was subdivided creating parcels No.958, 959 and 960. Parcel No.960 crossed the road to include that piece of land which had been declared to be part of parcel No.311. The amendment of the map to show the sub-division was also done in November 1988 and that on the ground this has been the position.
The Land Registrar was called to give evidence as to how the amendment on the map was made. KENNEDY EDWARD OSORO (DW1)in his evidence told the court that the amendment on the map between parcels NO.311 and 253, Parcel 960 came out of the subdivision of parcel NO.311. The boundary between parcels NO.253 and 311 was determined out of a boundary dispute. Since it was determined that a portion of land in parcel NO.253 belonged to owner of parcel NO.311 since the time of demarcation then the map had to be amended to indicate the ground occupation out of the boundary dispute a portion of 0. 62 acres or thereabouts was removed from parcel NO.253 and added to parcel NO.311. Parcel NO.960 which apparently belonged to the Original Owner of parcel NO.311 was created in the subdivision of parcel NO.311. This explains why some amendments had to be made on the map index to reflect the actual ground occupation.
Both the plaintiff and the first defendant concede that there were no changes on the physical ground occupation since the titles were issued in 1988. That being the position the plaintiff claim that amendment effected on the map index deprived him of his 0. 62 acres that were reflected on the map as having been removed and added to land parcel NO.960 of the first defendant as amendment of the register did not affect ground occupation by both the plaintiff and the first defendant.
From the above reasons it follows therefore that the plaintiff’s claim cannot succeed and the suit is dismissed with costs to the first defendant.
Delivered and dated at Nairobi this 7th June day of 2006.
………………………………
J.L.A. OSIEMO
JUDGE