https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4512

Wanjala v Land Registrar, Busia County (Enviromental and Land Originating Summons E026 of 2024) [2026] KEELC 4512 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4512 (KLR) Republic of Kenya In the Environment and Land Court at Busia Enviromental and Land Originating Summons E026 of 2024 BN Olao, J July 16, 2026 Between John Ouma Wanjala Applicant and Land Registrar, Busia County Respondent Judgment 1.This judgment was due for delivery on 27th November 2025. However, following my transfer to Iten Court, I had to prioritize my part heard cases. That contributed towards the delay in delivering this ruling. The same is regretted. 2.John Ouma Wanjala (the Applicant herein) is together with his late father’s siblings namely Gabriel Kano Wanjala aka Gebby Kawo Wanjala, Joseph Oduya Wanjala, Raphael B. S. Wanjala and James Otieno Wanjala, the registered proprietors of the land parcel NO Bunyala/Bulemia/466 measuring 6.6. Hectares (the suit land) since 25th February 2010. This was pursuant to a confirmed Grant issued in Busia High Court Succession Cause NO 101 of 2006. Prior to that, the suit land was registered in the joint names of the Applicant’s late father Lucas Wanjala Ngodi together with his brother Gebby Kawo Wanjala aka Gabriel Kano Wanjala. 3.There appears to have been a dispute regarding the boundary between the suit land and the land parcel NO Bunyala/Bulemia/693 which is owned by one Paul Sidonge among others. That dispute was determined by the Land Registrar but the Applicant is aggrieved by that decision. He has now approached this Court for a relief. 4.By his Originating Summons dated 20th June 2024 and premised upon Section 86 of the Land Registration Act and Orders 37 Rule 7(1) (2), 13 and 15 of the Civil Procedure Rules, the Applicant seeks the following orders:1.Whether the Land Registrar acted fairly and judicially in directing the amending of the Register of Land Parcel NO Bunyala/Bulemia/466.2.Whether the action by the Land Registrar contravenes Sections 24 and 26 of the Registration of Land Act and the Constitution.3.Whether this Court should declare the amendments of the Register as unlawful and that the same should be vacated. 5.The summons is based on the grounds set out therein and is supported by the Applicant’s affidavit of even date. 6.The gravamen of the summons is that following the dispute between the proprietors of the suit land and those of the land parcel NO Bunyala/Bulemia/693, PAUL SIDONGE sold a portion of the suit land and went to the Busia County Surveyor to visit the two parcels of land and sort out the boundary dispute. That on 4th February 2016, the surveyor visited the two parcels of land and prepared a report. However, the said surveyor one KENNEDY MASIBO did not place any beacons to show the boundary. 7.The Applicant therefore visited both the Land Registry and Survey Office to have both the land parcels NO Bunyala/Bulemia/466 and 693 measured and the boundaries fixed in order to end the long-standing dispute. 8.That the Land Registrar and County Surveyor visited the two portions of land and stated from nowhere that the parties had maintained their boundaries for over 40 years yet in 2009 and 2016, the parties were before the District Officer Budalangi to stop one GABRIEL who was trying to put up a wall. Therefore, the Land Registrar’s findings were based on unknown facts and she ignored the Applicant’s evidence in arriving at her decision dated 26th October 2023. The County Surveyor drew a map which reduced the size of the land parcel NO Bunyala/Bulemia/466 from 6.6 Hectares to 4.5 Hectares which is completely different from what is in the PID Map and what the Applicant occupies on the ground. It is his wish therefore that both the suit land and the land parcel NO Bunyala/Bulemia/693 be measured so that justice is done and the trespassers be informed. 9.The following documents are annexed to the summons:1.Copy of the confirmed Grant issued in Busia High Court Succession Cause NO 101 of 2006 to the Applicant in respect to the Estate of Lucas Wanjala Ngodi.2.Copy of title deed for the land parcel NO Bunyala/Bulemia/466 dated 25th February 2010.3.Copy of Mutation Form for the land parcel NO Bunyala/Bulemia/693.4.Copy of letter dated 2nd August 2008 by Gebby K. Wanjala and addressed to PAul Sidonge referring to boundary of the land parcel NO Bunyala/Bulemia/466.5.Copy of letter dated 12th August 2008 by Paul Sidonge and addressed to GEBBY K. Wanjala in response to the letter dated 2nd August 2008.6.Copy of letter dated 27th March 2009 addressed to GABRIEL MBINDA by the District Officer Budalangi requiring him to engage a surveyor to determine boundary of land parcel NO Bunyala/Bulemia/466.7.Report by the County Surveyor Busia dated 4th February 2016 and addressed to whom it may concern confirming the boundary of the land parcel NO Bunyala/Bulemia/693.8.Copy of the proceedings of the boundary dispute involving the land parcels NO Bunyala/Bulemia/466 and 2883 and 2884 (formerly 693). 10.The record shows that having filed this summons on 11th July 2024, the Applicant’s counsel MR OUMA and whose brief was held by MS ACHALA appeared before the Deputy Registrar HON SEREM and informed the Court that the Respondent had been served with a mention notice and sought a hearing date. However, there is nothing on the record to show that the Land Registrar Busia who is the only Respondent in these proceedings had ever been served with the Originating Summons. All the affidavits of service and the Notices filed herein show that the Respondent was only served for the “MENTION” of this Originating Summons. Those affidavits of service and Notices are dated 31st January 2025, 10th February 2025, 20th February 2025, 3rd March 2025, 6th March 2025, 15th April 2025, 1st July 2025 and 29th July 2025. There is no affidavit to show that the Land Registrar Busia being the only Respondent herein was even served with the Originating Summons either personally or through the Attorney General. 11.Secondly, it would have been expected that the owners of the land parcel NO Bunyala/Bulemia/693 who had an interest in the boundary dispute involving the two parcels of land being Bunyala/Bulemia/466 and 693 should have been impleaded in these proceedings. That was not done thus omitting a key player in this dispute. 12.The above notwithstanding, this Court has considered the Originating Summons, the supporting affidavit and annextures thereto as well as the submission by MR OUMA counsel for the Applicant. 13.There is no doubt that what the Land Registrar Busia was called upon by the proprietor of the land parcels NO Bunyala/Bulemia/466 and 693 was to determine the boundary dispute between them involving the said two parcels of land. It is clear that such a dispute is within the jurisdiction of the Land Registrar who, as I have already stated above, was never served. Section 18 of the Land Registration Act makes it clear that it is the duty of the Land Registrar to conduct proceedings and receive any evidence regarding a boundary dispute and thereafter make a decision. 14.In support of his Originating Summons, the Applicant has filed two reports. One is dated 4th February 2016 and the other contains the proceedings held on 26th October 2023 when the proprietors of the land parcel NO Bunyala/Bulemia/466 and 2883 and 2884 (formerly 693) appeared with their witnesses before the Land Registrar and County Surveyor Busia and gave their evidence after which a report was prepared showing that the ground acreage of the land parcel NO Bunyala/Bulemia/466 should infact be 4.5 Hectares and not the 6.6 Hectares as shown on the copy of the title deed herein. It is in that regard that counsel for the Applicant has submitted at page 3 of his submissions thus:“Your Lordship we submit that the Land Registrar did not fairly (sic) and judicially in directing the amendment to the Register of L.R NO. Bunyala/Bulemia/466.It is clear from the background of this matter there were two reports one dated 04.02.2016 and another dated 26.10.2023 in respect of the same person.It is notworthy that the weight given by the Busia Land Registrar to the two reports of Busia County Surveyor is not explained and no analysis is given as to why she ignored the report dated 04.02.2016.To this, we submit that the Busia Land Registrar acted unfairly and unprocedural in directing the amendment of the Registrar L.R NO Bunyala/Bulemia/466 from 6.6 HA to 4.5 HA.”Counsel then goes on to cite the provisions of Sections 24, 25 and 26 of the Land Registration Act on the interests conferred by registration and the rights of a proprietor. There is no doubt that those provisions, including Article 40 of the Constitution protect the right to land. That right has been echoed in various cases including MUNYU MAINA -V- HIRAM MAINA 2013 KLR, KATHURIMA -V- COMMISSIONER OF LAND 2015 eKLR and HUBERT L. MARTIM & OTHERS -V- MARGARET J. KAMAR 2016 eKLR which counsel has referred to. It is counsel’s view, finally therefore, that the Land Registrar “acted illegally and unfairly in reducing the acreage of the land form 6.6 HA to 4.5 HA without allowing the Applicant the chance to avail his private surveyor to be present during the exercise, we no doubt (sic) that this Court should declare the amendment as unlawful and the same be vacated.” 15.Since there is no evidence that the Land Registrar or county Surveyor Busia were served with this summons, no opportunity was availed to them to respond to these allegations. Section 78 of the Land Registration Act empowers the Land Registrar to re-survey land to correct wrong dimensions. A party aggrieved by the decision of the Land Registrar is empowered to approach the Court under Section 86 of the Land Registration Act to state it’s opinion. The proceedings of the Land Registrar as captured in the record of 26th October 2023 clearly show that both the Applicant and the other parties were granted an opportunity to be heard as provided under Section 87 of the Land Registration Act and they duly presented their respective cases before the Land Registrar arrived of the decision that:“The actual acreage of parcel NO 466 as per surveyor is 4.5 hectaresOrder:The existing fences remain their boundary.”The report of the Busia County Surveyor is dated 4th February 2016. Nowhere does it refer to the acreage of the land parcels NO Bunyala/Bulemia/466 or 693. In paragraphs 4, 5 and 6 of the said report, the County Surveyor states that:“The owner of p/no Bunyala/Bulemia/466 (abutting parcel) were in disagreement with the way boundaries were shown by the owner of the p/no 693 and that the map was correct and therefore was to be adopted.Boundaries were then picked as were shown and the position of boundaries as per the map marked. The findings were as per the sketch map herewith attached.REMARKSP/no 693 had further been sub-divided but the original boundary was checked.”As is clear from the final remarks of the Land Registrar, she relied on the surveyor’s sketch map in making the decision which she did. It cannot therefore be true, as submitted by counsel for the Applicant, that the Land Registrar “ignored the report dated 04.02.2016”. The Land Registrar was clearly guided by the sketch map annexed to the surveyor’s report in determining the correct dimensions of the land parcels NO Bunyala/Bulemia/466 and 693 after hearing the parties and their witnesses. 16.The determination of the boundaries of the above parcels of land was in accordance with the provisions of Sections 78 and 87 of the Land Registration Act. It did not amount to the cancellation of any title. It only confirmed the boundaries of the two parcels of land and their respective sizes and there was no contravention of the provisions of Sections 24 and 26 of the Land Registration Act as pleaded by the Applicant. 17.The Applicant then sought for the following reliefs:i.“Rectification of L.R NO Bunyala/Bulemia/466 be rendered null and void.”ii.“The register should reflect L.R NO Bunyala/Bulemia/466 measuring 6.6 HA.”iii.“The amendments of L.R NO Bunyala/Bulemia/466 be rendered null and void.”iv.“Costs of the suit.”However, from what I have found above, there can be no justification for granting those reliefs. The Land Registrar is the party authorized by law to make any rectification as regards acreage of land. This court cannot usurp that power and in any event, no basis has been laid for faulting the decision of the Land Registrar and how it was arrived at. 18.The up-shot of all the above is that the Applicant’s Summons dated 20th June 2024 and filed on 11th July 2024 is devoid of merit. It is accordingly dismissed with no orders as to costs. BOAZ N. OLAOJUDGE16TH JULY 2026JUDGMENT DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 16TH DAY OF JULY 2026 WITH NOTICE TO THE PARTIES.BOAZ N. OLAOJUDGE16TH JULY 2026