[2023] KEELC 22654 (KLR)

Odira (Suing as the Administrator of the Estate of Maurice Odira Agola – Deceased) v Khant (Environment & Land Case 425 of 2017) [2023] KEELC 22654 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEELC 22654 (KLR)

Republic of Kenya

In the Environment and Land Court at Migori

Environment & Land Case 425 of 2017

MN Kullow, J

November 29, 2023

Between

Kennedy Otieno Odira (Suing as the Administrator of the Estate of Maurice Odira Agola – Deceased)

Plaintiff

and

Rasikkumar Harjibhai Khant

Defendant

Judgment

1. The Plaintiff commenced this suit by way of a Plaint dated 18th November, 2016; seeking the following Orders against the Defendant: -i.An Order of injunction restraining the Defendant from interfering with the deceased’s land Kamagambo/Kabuoro/1257 measuring 0. 56Ha on registry map sheet number 14. ii.Costs of this suit and interest.iii.Any other relief this Honourable Court may deem fit and just to grant.

2. The Plaintiff contends that he is the registered proprietor of the suit land No. Kamagambo/ Kabuoro/1257 measuring approx. 0. 56Ha on the registry Map Sheet Number 14, having acquired the same in the year 1982 while the Defendant is the registered owner of parcel No. Kamagambo/ Kabuoro/1300 measuring approx. 0. 32Ha.

3. It is his claim that on or about 2/11/2016, the defendant started interfering with the suit land by encroaching into the land and he is in the process of occupying and fencing the said land on the claim that the same is his portion.

4. He maintained that the deceased and all his beneficiaries have been occupying the suit land since its acquisition in the year 1982 and that the actions by the defendant amounts to intermeddling with the estate of the deceased and are aimed at preventing them from enjoying their rightful property. He thus argued that there is need to restrain the defendant from further encroachment and urged the court to grant the orders sought.

5. The suit was opposed, the Defendant entered appearance and filed a Statement of Defence dated 23/01/2017 wherein he denied the allegations levelled against him by the Plaintiff. He admitted that the late Maurice Odira Agola is the registered proprietor of the suit parcel of land No. 1257 while he is the registered absolute proprietor of parcel No. 1300 but maintained that the two parcels of land are separate and distinct.

6. It was his claim that he acquired his land parcel No. 1300 on 02/11/2016 and that the said parcel has been in existence since 11/03/1983, when it was lawfully created out of the subdivision of land parcel No. Kamagambo/ Kabuoro/1256.

7. He however stated that the two parcels of land No. 1257 and 1300 are adjacent to each other but the two have one distinct and common boundary. That sometimes on 28/10/2016; the County Surveyor for Migori County, surveyed his parcel of land No. 1300, pointed out the beacons on the boundaries and amended the register of the land parcel No. 1300 to read 0. 32Ha instead of 0. 97Ha which was incorrect.

8. It was his contention the common boundary between the two parcels of land is clear and well-known. He thus argued that there is no land dispute and dismissed the plaint as not disclosing any reasonable cause of action against him and the same is therefore scandalous, vexatious, frivolous and an abuse of the court process.

Trial 9. On 9/10/2018; my predecessor Ong’ondo J. issued Summons directing the County Surveyor Migori County, Maurice Samba, to appear in court to clarify the issues contained in his report dated 9/05/2017 in respect to L.R. No. 1257 and 1300.

10. On 21/1/2019, the said County Surveyor appeared in court. He confirmed that he is the one who prepared and signed the Survey Report dated 09/05/2017 relating to parcels Nos. 1257 and 1300.

11. On cross- examination by the Plaintiff’s counsel; he stated that he measured both parcel No. 1257 and 1300 using the boundary features, in the presence of both the Defendant and the legal representative of the estate of the Maurice, who was the registered owner of parcel No. 1257.

12. It was his finding that parcel No. 1257 measured approx. 0. 56Acres while parcel No. 1300 measured approx. 0. 32Ha. He however conceded that his report was not final and that the same could be reviewed. Further, he admitted that his report needed to include the Land Registrar’s input, who is in charge of land boundaries. He clarified that he had no powers to alter boundaries which are not clear on the ground.

13. On cross- examination by the Defence Counsel; it was his testimony that he issued notice to both parties to attend the survey exercise. He stated that he did not understand the provisions of sections 18 and 19 of the Land Registration Act but conceded that in the absence of a Land Registrar, a surveyor cannot finalize a report. He confirmed that he conducted the exercise without the land registrar.

14. He further conceded that the diagrams he drew did not show the measurements and the acreages of the two parcels of land in dispute; he did not demarcate, establish or delineate the boundary in full compliance with the court orders issued on 6/2/2017 and thus his report was incomplete. It was also his testimony that the ground acreage and the map distance differ.

15. After cross-examination of the said County Surveyor, the court directed that the 2 suit parcels be visited again by both the Land Registrar and the County Surveyor in full compliance with its earlier orders issued on the 14/12/2016. The site visit was done as directed, however, no report of the findings thereof was duly filed as ordered by the court. The matter was then fixed for hearing.

16. On 10/11/2020; parties informed the court that there was a Survey Report prepared by the County Surveyor R. Aloo, dated 15/5/2019 and filed in court on 26/6/2020. The same was deemed to have been duly filed in court.

17. The matter proceeded for further hearing on 11/3/2021. Omondi Ray Aloo, County Surveyor testified as PW2, as a common witness for both parties in the case. It was his testimony that he visited the suit parcels Nos. 1257 and 1300 on 15/5/2019, together with the former Land Registrar, George Ogutu and others as shown in the Report. He produced the Report dated 15/5/2019 as Pexh. 2

18. On cross-examination by Mr. Ojala for the Plaintiff; it was his testimony that he marked the boundaries between the two parcels of land. He further stated that there was no element of encroachment as the Plaintiff and the Defendant were both bound to loose part of their respective parcels of land as confirmed by the ground position, which was contrary to the acreage shown in the map and therefore it may not be easy to determine the encroachment.

19. He maintained that the said parcels exist save for their respective acreage or area since there is an apparent error in the area. He further stated that the law allows him to change the map area to match with the ground measurements. The plaintiff and defendant claimed different buildings standing on the said portions, the lower side is in the homestead of the plaintiff.

20. On cross-examination by the defence counsel Mr. Kipng’etich; he stated that when he visited the suit parcels, he found that there were no physical boundaries except a live fence but conceded that the same was no included in the report.

21. It was his testimony that there was no encroachment by the defendant’s land No. 1300 into the Plaintiff’s land No. 1257. That both parcels of land arose from the subdivision of the original No. 1222. He reiterated that the law permits him to alter the record of land to reflect the ground measurements as per the letter dated 2/11/2016 (PMFI 5)

22. This court granted leave to the Plaintiff to engage the services of a Private Surveyor and obtain an opinion in regard to the exercise ordered on the 16th December, 2016. Corresponding leave was granted to the Defendant to also file an independent Surveyor’s Report. Further, each party was at liberty to call a Surveyor as a witness during the substantive hearing of the case.

23. The Plaintiff’s case proceeded for hearing on 19/9/2022. The Plaintiff as PW3 and called 2 witnesses to testify in support of his case.

24. It was the testimony of PW3 that his late father was the registered proprietor of the land parcel No. 1257 and the Defendant without any color of right encroached in the said land sometimes in the year 2016/2015.

25. He further asked the court to adopt the documents in his List of Documents and the same be marked as PExhibits 1 – 7 as follows; Official search Kamagambo/ Kabuoro/ 1257 as Pexh. 1, Title deed No. 1257 as Pexh. 2, Mutation Form for parcel No. 1256 as Pexh. 3, Mutation Form for parcel No. 1222 as Pexh. 4, Letters of Administration as Pexh. 5, Boundary Dispute Summons from the area chief as Pexh. 6 and Copy of the Green Card as Pexh.7.

26. On cross- examination, he reiterated that the suit land was owned by his late father and the same measures approx. 0. 56Ha while the Defendant owns parcel No. 1300. It was also his claim that the boundaries between the 2 parcels is not visible and that the defendant has encroached on the suit land and further that there are maps which show the said encroachment. He however conceded that he had not produced the said maps.

27. Victor Odhiambo Odira testified as PW4; he stated that he is the son of the late Maurice Odira, who owned the suit land No. 1257 measuring 0. 56Ha since 1982.

28. It was also his testimony that sometimes in the year 2016; the Defendant encroached into their parcel of land, claiming that he had purchased part of their land which had buildings that were constructed by his father in the year 1988.

29. On cross- examination; he reiterated that his late father owned parcel No. 1257 while the Defendant owns parcel No. 1300. He however stated that the two land parcels do not share any common boundary.

30. Loraine Origo, an Independent Land Surveyor testified as PW5. It was her testimony that she received a request seeking the confirmation of acreages of land parcel Nos. 1257 and 1300. She confirmed that both parcels of land were a subdivision of the original parcel No. 1222; the same mutated into 1256,1257 and 1258. Later parcel No. 1256 was subdivided into parcels Nos. 1300 and 1304.

31. She visited the land and measured parcel No. 1300 which measured 0. 97Ha while 1257 was 0. 47Ha against the record of 0. 56Ha while the search conducted showed that parcel No. 1300 measured 0. 32Ha.

32. It was also her testimony that she found that parcel No. 1300 was not part of parcel No. 1257 but was a subdivision of parcel No. 1256. She stated that she obtained the said results from a look at the mutation forms, which showed that parcel No. 1222 was subdivided into 1256, 1257 and 1258.

33. In conclusion, it was her finding that the Defendant’s claim does not tally with the actual measurements of the suit land; the search certificate of parcel No. 1300 showed that it measured approx. 0. 32Ha while in the Mutation Form showed that it measured 0. 97Ha. She consequently asked the court to adopt her Survey Report and a Sketch Map.

34. On cross-examination; she stated that she is the one who generated the report but conceded that the attached certificate was that of Mr. Peter Okeyo Oraro.

35. She conceded that she is a qualified surveyor but she does not own a license. She stated that Assistant Surveyors are allowed to prepare a report and the authority is given by the Principal Surveyor. She confirmed that she has the said authority though she had not produced the same.

36. She conceded that there was nothing in her Report to show that there is an encroachment into parcel No. 1257 by the Defendant’s parcel No. 1300. The plaintiff thereafter closed her case.

37. The Defence case proceeded for hearing on the 09/11/2022. The Defendant testified as DW1; it was testimony that his parcel of land No. 1300 has not overlapped into the Plaintiff’s parcel No. 1257 and maintained that there is a distinct fence between the two parcels which are different.

38. He produced the documents in his list of documents as Defence Exhibits marked as Dexh. 1 – 7 as follows; copy of the register of land parcel No. Kamagambo/ Kabuoro/ 1257 as Dexh. 1, copy of the register of land parcel No. Kamagambo/ Kabuoro/ 1300 as Dexh. 2, Registry Index Map for Kamagambo Kabuoro Registration Section as Dexh. 3, the registered Mutation Form of land parcel No. Kamagambo/ Kabuoro/ 1256 as Dexh. 4, letter from the County Surveyor, Migori to the County Lands Registrar, Migori as Dexh. 5, Notice to tenants in the premises on land parcel No. Kamagambo/ Kabuoro/ 1300 as Dexh. 6 and Survey Report dated 8/4/2021 as Dexh. 7.

39. On cross- examination; he stated that he bought the suit land from Joseph Ligawa. He conceded that the land was developed and it had a building but he did not know who constructed the said building. He confirmed that he had seen the various Survey Reports but maintained that he had never trespassed/encroached into the plaintiff’s land.

40. It was his testimony that his land measures 0. 32Ha as shown in the Green Card and as per the title deed issued to him dated 2/11/2016. That the amendment was done when he purchased the land. The said parcel No. 1300 was a subdivision of parcel No. 1256.

41. Patrick Opiyo Adero testified as DW2. He stated that he is a registered Land Surveyor and holder of Licence No. 174 and he was engaged by the 1st Defendant. He testified that he visited the 2 parcels of land in question and generated a Report dated 8/4/2021 and a Sketch of his findings on the ground. It was his finding that there was a live fence and that there was no encroachment of the Defendant’s land into the Plaintiff’s land.

42. It was his testimony that there is a contradiction between the between the Sketch he prepared and the one prepared by Earthscope Surveyors on behalf of the Plaintiff. That his sketch shows that parcel No. 1257 is in the Northern side while parcel No. 1300 is on the Southern side and there is an access road on the right side. The sketch prepared by Earthscope on the other hand shows that the access road is on the Eastern side.

43. He confirmed that both sketches were based on the Registry Index map. It was also his contention that the Report by Earthscope does not disclose encroachment but that they super imposed parcel No. 1257 on parcel No. 1300. He further confirmed that his report does not also disclose any encroachment. He produced his Report and the same was marked as Dexh. 7.

44. On cross-examination; it was his testimony that where a dispute arises they look at whether there are existing boundaries. He conceded that according to the county surveyor’s report, there was no boundary between the 2 parcels in the year 2019 but he maintained that when he visited the suit parcels in the year 2021, he found a boundary even though he did not know when and who fixed the same.

45. He further conceded that according to the Sketch prepared by the County Surveyor Mr. Aloo, there is overlapping, he however maintained that he did not see any overlapping when he visited the land. He stated that even though the report by Mr. Samba stated that the acreage on the title is not what is on the ground, when he visited the land parcels he found that the acreage was 0. 46Ha and he was told that there was a Mr. Victor who owned 1 Ha.

46. On re-examination, he clarified that the 1st Report by Mr. Aloo did not indicate if the Defendant had encroached into the Plaintiff’s parcel. He further stated that the Registry Index Map that he used was last updated on 18/3/2021.

47. Ligawa Joseph Otieno testified as DW3, he adopted his witness statement dated 18/2/2022 as his evidence in chief. It was also his testimony that land parcel No. 1300 has not encroached onto parcel No. 1257; that he is the one who sold parcel No. 1300 to the Defendant and he showed him the boundaries of the land.

48. On cross- examination, he stated that he inherited the land from his father before selling the same to the Defendant. That the suit land was measuring 0. 97Ha and he sold the entire land. It was also his testimony that the Plaintiff’s father, Maurice Odero had also purchased parcel No. 1257 from his father though he was not a party to the said sale transaction.

49. He conceded that he was aware that there was a building on parcel No. 1300 though he was not aware who constructed the said building. It was his testimony that he has never entered the said building neither does he know that the same is being used by the Plaintiff as a school.

50. On re-examination, he clarified that parcel No. 1300 measures 0. 32Ha and that he was shown the boundaries thereon by the County Surveyor. He also confirmed that there was a difference between what the defendant bought and the actual measurements. The Defence thereafter closed their case.

51. Upon close of the defence case, I issued directions on the filing of final written submissions. Both parties filed their rival submissions which I have read and considered.

Analysis And Disposition 52. It is this court’s considered opinion that the sole issue arising for determination is: -a.Whether the Plaintiff is entitled to the grant of the Injunction orders sought in his Plaint dated 18th November, 2016.

53. The ownership of the said parcels of land is not in dispute; the Plaintiff is the registered owner of parcel No. Kamagambo/ Kabuoro/1257 while the Defendant is the registered owner of parcel No. Kamagambo/ Kabuoro/1300. What however appears to be in dispute and which is at the center of the present suit is the common boundary and the ground measurements of the said parcels Nos. 1257 and 1300.

54. It is the Plaintiff’s claim that on or about 2nd November, 2016, the defendant started interfering with the suit land by encroaching into the land and that he is in the process of occupying and fencing the suit land parcel on the pretext that he rightfully purchased the said land.

55. The Defendant in response to the said allegations; maintained that the two parcels of land Nos. 1257 and 1300 are adjacent to each other but the two have one distinct, separate and common boundary. It was his claim that sometimes on 28/10/2016; the County Surveyor, Migori County, surveyed his parcel of land No. 1300, pointed out the beacons on the boundary and amended the register of the land parcel No. 1300 to read 0. 32Ha instead of 0. 97Ha which was incorrect.

56. Section 18 of the Land Registration Act ousts the jurisdiction of the court to entertain boundary related disputes while section 19 of the said Act vests the Land Registrar with the mandate of fixing boundaries. The said sections provide as follows: -“Section 18(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.18(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: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.19(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.”

57. My predecessor Ong’ondo J issued an Order directed to the Land Registrar and Surveyor, Migori County, to visit the suit parcels of land Nos. 1257 and 1300 and ascertain their respective beacons and to re-establish the boundaries thereon and thereafter file a report. Further, parties were also granted leave to engage the services of private and independent surveyors in the event that they were aggrieved by the report filed by the Land Surveyor and the Land Registrar. A total of 4 survey reports were done and filed in respect to the dispute between the 2 parcels of land and I wish to reproduce verbatim in part as follows: -Report 1 dated 09/05/2017 by Maurice Samba County Surveyor: -“Ground Findings – there is no definite boundary separating the suit parcels, hence one would imagine that the physical space on the ground defines only one parcel.The dimensions on the map is rather distorted and does not reflect the correct boundary dimensions of the suit parcels. From (2) above, it follows that the acreages on the title deeds for both parcels may not be their actual areas, hence a review may be necessary”.Report 2 dated 15/5/2019 by the County Surveyor R. Aloo and Land Registrar: -“Findings – the map drawing is distorted and doesn’t depict the true shape and measurements of the two parcels on the ground. That the registered areas of the suit parcels do not reflect the ground reality. There is an overlap of the suit parcels into each otherConclusion & recommendations – it follows that the common boundary can only be fixed by applying proportions to deduce the logical position of the boundary but due to the lack of goodwill and consensus from the parties, the boundary could not be fixed on the ground as ordered by the court.He also had the following annexures; Annex. 2 – measurements as extracted from Sheet No. 14 Kabuoro Registration Section not done to scale, Annex. 3 - actual ground measurements of parcel Nos. 1257 & 1300 combined not drawn to scale and Annex. 4 – the overlap area has been coloured in green”Report 3 dated 08/04/2021 by Patrick Opiyo (DW2): -“Conclusion - the boundary Kamagambo/ Kabuoro/1300 is A1-A2-A3- A10-A9-A8-A7 while that of parcel No. 1257 is A3- A4-A5-A6-A12-A11-A10. These boundaries are marked by live hedges on the ground.”Report 4 dated 27/05/2022 by Earthscope Surveyors (PW5): -“Conclusion – the acreage physically measured from the plot using tape measure and a hand-held GPS garget, shows Kamagambo/ Kabuoro/1257 is 0. 47Ha against the record of 0. 56Ha which was the core duty of this survey.I therefore realized an error of 0. 09Ha which makes me conclude that the map measurements do not tally with the ground measurement as is witnessed in the sketch diagram.”

58. The first Report dated was held to be inconclusive and the Court directed that a Resurvey be conducted by the Land Registrar and County Surveyor, Migori County and a report be filed to that effect. From all the reports it is however clear that the acreages/ map measurements do not tally or reflect the actual ground measurements, what has been indicated on the title deeds for both parcels of land appears to be different from the ground measurements.

59. Further, it is important to note that all the 3 survey reports filed are not definite on whether or not there is encroachment into the plaintiff’s parcel No. 1257 by the Defendant land No. 1300 and by what acreage to warrant the grant of the orders sought.

60. It is also important to note that it was the testimony of both DW1 and DW3 that at the time of the land transaction between them, the suit parcel No. 1300 had been developed and had structures thereon. Both DW1 and DW3 testified that they were not aware who was the actual owner of the said structures. DW3 stated that he had never entered the said building and was not aware that the same was being used by the plaintiff as a school.

61. The report by the county surveyor R. Aloo, in his annexure 4 has marked the area of overlap; however, the said report does not state the extent of overlap into the plaintiff’s land no. 1257 of the defendant’s land no. 1300. To this and therefore, this court is unable to find conclusively in favour of the plaintiff.

Conclusion 62. The upshot of the above is that the County Surveyor and Land Registrar Migori County are hereby ordered to visit the two parcels of land in dispute No. Kamagambo/ Kabuoro/1257 and 1300 for purposes of re-establishing the ground acreages/ measurements and boundaries to conform to the map measurements. Parties are thereafter directed and/or ordered to respect the established boundaries to avoid issues of trespass and/or injunction. Each party to bear their own costs of the suit.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MIGORI ON 29TH DAY OF NOVEMBER, 2023. MOHAMMED N. KULLOWJUDGEIn presence of; -No appearance for the PlaintiffMr. Mulisa for the DefendantsCourt Assistants - Tom Maurice/ Victor