https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4156

Muhia v County Land Registrar, Nyeri; Kariuki (Interested Party) (Environment and Land Case E001 of 2023) [2026] KEELC 4156 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEELC 4156 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case E001 of 2023 EK Makori, J July 1, 2026 Between Jeremiah Ngari Muhia Applicant and County Land Registrar, Nyeri Respondent and Grace Mumbi Kariuki Interested Party Judgment 1.The Applicant herein filed an Originating Summons dated September 21, 2023, seeking the following orders:a.That the ruling of the Respondent, the County Land Registrar Nyeri, made on 11th November 2021, amounted to ordering the rectification of the register to parcels of land LR Nos MUHITO/MBIUNI/760 and 761 within a boundary dispute, thus made without powers and against the law.b.That the ruling amounted to ordering rectification of the Registry Index Map within a boundary dispute, thus made without powers and against the law.c.That the ruling amounted to ordering a re-parcellation within a boundary dispute, thus made without powers and against the law.d.That the ruling be reviewed by setting the same aside and ordering a determination and fixing of the boundary.e.That costs be provided for. 2.The substantive application is supported by the Applicant's affidavit, in which he deposed that he is the registered proprietor of LR. No. Muhito/Mbiuini/761. 3.Adjacent to his parcel of land is LR. No. Muhito/Mbiuini/761, registered in the name of one Githae Wahome (Deceased). 4.It is deposed that the boundary between the two parcels is clearly defined in the Registry Index Map. However, there has been a long-standing boundary dispute between him and the possessor of the adjacent land over the position of their common boundary as defined in the R.I.M. 5.There was a criminal case against the Applicant in which he was charged with obstructing a public way, but he was acquitted in Mukurweini Criminal Case No. 577 of 2013. Another case, Mukurweini SPM ELC Case No. 17 of 2018, was also a boundary dispute. The Court declined to decide the matter for want of jurisdiction and advised that the dispute be referred to the Land Registrar for determination. 6.As advised by the Court at Mukurweini, the Applicant referred the dispute to the Respondent herein. The Land Registrar visited the site of the dispute on the 11th of November 2021 and made a ruling. 7.The ruling was made on the condition that the existing R.I.M should be amended to conform to the situation on the ground. 8.The Applicant claims that by making the said ruling without determining and indicating the boundary as required, the Respondent abdicated his duty as intended in the reference and the notices for the boundary dispute and failed to follow the process for determining the boundary. 9.It is thus the Applicant’s claim that the ruling amounted to rectification of the register, as his land would be greatly reduced in area. In contrast, the interested party’s land would be greatly increased. 10.The Interested Party raised a preliminary objection in a notice dated January 16, 2025, asserting that she is wrongly sued and joined in these proceedings. 11.She also filed an affidavit in response to the substantive originating summons, sworn on March 9, 2026, and deposed that, from the outset, it is unclear the circumstances under which she has been joined as an Interested Party in this suit. 12.The Interested Party contends that the averment that she is the possessor of the parcel of land L.R Muhito/Mbiuni/760 is a false fabrication of fact, intended only to unnecessarily drag her into this matter, as she resides in Mathira Sub-County, a totally different sub-county from where the parcel of land that is the subject of this suit is situated in Mukurweini. 13.She deposed that the registered owner, L.R Muhito/Mbiuni/760, which is the subject of this suit, Githae Wahome, who is stated to be deceased, is a brother of her father, and that she is neither a personal representative nor an Administrator of his Estate, so she cannot be made an Interested Party in the suit. The subject parcel of land is registered in the name of a deceased person, as informed in her Notice of Preliminary Objection dated 16th January 2025. 14.The Interested party contends that, because she is neither in possession of the suit land nor a personal representative nor an Administrator of the Estate of the deceased, the Applicant's application is defective in its entirety. 15.She, however, confirmed that she was familiar with the proceedings of the boundary dispute annexed to the Applicant’s Affidavit, and stated that with regard to the suit Mukurweini ELC Case No 17 of 2018 formerly Nyeri ELC 85 of 2014, the defendant therein was her mother, who is now deceased. 16.That the aforementioned suit was dismissed pursuant to the decree dated July 3, 2019, attached to the Judgment, because a report from the Surveyor on the status on the ground was not produced, that there is no evidence that the Registrar was involved in giving notice and hearing the parties, and that no report was tendered ascertaining the boundaries between the parcels and confirming encroachment of the Plaintiff's Land by the Defendant. 17.She also confirmed that the hearing of the boundary dispute was concluded, with regard to the minutes of 11th November 2021, and prayed that the application be dismissed with costs. 18.The interested party also submitted written submissions, which the Court has duly read and considered. Analysis and determination 19.This is an application in which the Applicant claims that the County Land Registrar overstepped boundaries and altered the Registry Index Map of the suit properties, LR. No. Muhito/Mbiuini/761, registered in the Applicant's name, and LR. No. Muhito/Mbiuini/760, registered in the name of Githae Wahome (Deceased). 20.The Interested Party was sued herein as the possessor of LR. No. Muhito/Mbiuini/760, which she denied. She also stated that she is not a personal representative of the deceased and has been improperly sued in this case. 21.Since the Interested party has raised a Preliminary Objection, we must first address it. The famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] E.A. 696 further elaborates on the nature of a preliminary objection thus:“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurrer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop” 22.The issue of joinder or misjoinder is a preliminary point of law, as it concerns a party's capacity to be sued. The Interested Party argued that she is not the registered owner of the land Muhito/Mbiuni/760, which is the subject of this suit, because it is registered in the name of the Deceased. Counsel for the Interested Party relied on the Supreme Court's holding in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 7 others (Nature Foundation Limited (Proposed Interested Party) (Petition 14 of 2014) [2014] KESC 52 (KLR)), where the Learned Judges quoted the cases of: Mumo Matemo Case where the Court (at paragraphs 14 and 18) held:“An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”Similarly, in the case of Meme v. Republic,2004 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:(i)Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;(ii)joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;(iii)joinder to prevent a likely course of proliferated litigation.” 23.The Interested Party herein has not been sued as the personal representative of the estate of Githae Wahome (Deceased) and has denied possession of LR No. Muhito/Mbiuini/760, as claimed by the Applicant. The Law of Succession Act, Cap 160, Laws of Kenya, Section 79, provides that the property of a deceased person vests in the personal representative and states that:“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.” 24.Order 3, Rule 7 of the Civil Procedure Rules provides as follows:“No claim by or against an executor or administrator, as such, shall be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.’ 25.The law is that only the personal representative of a deceased person’s estate can represent claims over that estate in that capacity, not in their own individual capacity. In Trouistik Union International and Ingrid Ursula Heinz V Jane Mbuyu & Another [1993] eKLR, the Court of Appeal made the following observations regarding a person’s legal capacity to undertake legal proceedings on behalf of a deceased person:“To determine who may agitate by suit any cause of action vested in him at the time of his death, one must turn to section 82 (a) of the Law of Succession Act. That section confers that power on personal representatives and on them alone. As to who are personal representatives within the contemplation of the Act, section 3, the interpretative section, provides an all inclusive answer.” 26.Therefore, the Interested Party has been improperly joined to this suit and ought to have her name stricken from the suit, even at this stage of the judgment. Order 1, Rule 10(2) of the Civil Procedure Rules provides that:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 27.Therefore, the PO by the Interested Party is allowed with costs. 28.Moving to the substantive application, the Applicant has made it clear that he has had a long-standing boundary dispute involving his parcel of land and the adjacent parcel LR 760. Section 18 of the Land Registration Act Cap 300 provides as follows:“(1)Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.(2)The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.(3)Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299).” 29.Section 19 provides that:(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.” 30.It is clear that only the Land Registrar has the authority to determine boundary disputes, and this Court lacks the jurisdiction to usurp the Land Registrar’s powers and determine boundaries on its own. 31.Contrary to the Applicant’s contention that the Land Registrar overstepped their mandate in rectifying the map, Section 79 of the Land Registration Act also provides:“The Registrar may rectify the register or any instrument presented for registration in the following cases—(a)in formal matters and in the case of errors, mistakes or omissions not materially affecting the interests of any proprietor;(b)in any case and at any time with the consent of all affected parties;(c)if upon resurvey, a dimension or area shown in the register is found to be incorrect, in such case the Registrar shall first give notice in writing to all persons with an interest in the rectification of the parcel;(d)for purposes of updating the register; or(e)for purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form.” 32.This OS is improperly before this Court; this Court should have been moved on its appellate jurisdiction concerning the boundary dispute determined by the Land Registrar, not in the manner it has been moved here. 33.The entire OS is dismissed with costs. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NYERI ON THIS 1ST DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Mr. Kingori for the ApplicantMr. Kibicho for the Interested PartyDenis - Court Assistant