https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4003

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCA NO. E007 OF 2026** **PETER NJERU METHA............................................................APPELLANT** **VERSUS** **MARGARET NJOKI NJERU.................................................RESPONDENT** **(Being an appeal from the Judgment and Decree of Hon. Joan Atieno Otieno (SRM) delivered on 10th April 2025 in Embu CM-ELC No. 70 of 2013)** **JUDGMENT** The Appellant, being dissatisfied with the judgment of the Senior Resident Magistrate delivered on 10th April 2025 in Embu CM-ELC No. 70 of 2013, lodged the present appeal vide a Memorandum of Appeal dated 25th April 2025 containing eight grounds of appeal. In summary, the Appellant contends that the learned trial magistrate erred in law and fact by ordering rectification of the register in respect of Land Parcel No. KAGAARI/KANJA/5453 without joining the vendor and the Land Registrar as parties, by failing to appreciate that the Respondent's suit was statute-barred, by disregarding the Appellant's status as a bona fide purchaser for value without notice, by ordering rectification without compensation, and by entering judgment against the weight of the evidence. As this is a first appeal, this Court is obligated to reconsider and re-evaluate the entire evidence adduced before the trial court and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in **Selle & Another v Associated Motor Boat Co. Ltd. (1968) E.A 123** and reaffirmed in **Peters v Sunday Post Ltd.** (**1958) E.A 424.** The record shows that the Respondent instituted the suit before the subordinate court seeking an order directing rectification of the parcel register relating to Land Parcel No. KAGAARI/KANJA/5453 by reducing its registered acreage from 0.103 hectares to 0.070 hectares, consequential re-establishment of the common boundary, or in the alternative compensation for the portion allegedly lost from her land, together with costs. The Respondent's case before the trial court was that she purchased Land Parcel No. KAGAARI/KANJA/3413 from the 2nd Defendant in 1998. After taking possession, she discovered that the acreage on the ground was less than what she had purchased. Upon conducting official searches at the Lands Registry, she established that the neighbouring parcel, KAGAARI/KANJA/4481 measuring approximately 0.107 hectares, had been subdivided into parcels KAGAARI/KANJA/5453 measuring 0.103 hectares and KAGAARI/KANJA/5454 measuring 0.037 hectares. The aggregate acreage of the resultant parcels exceeded the acreage of the parent parcel, leading her to suspect that part of her land had been incorporated into parcel No. KAGAARI/KANJA/5453. She consequently sought intervention from the Land Registrar who, together with the District Surveyor, visited the suit property pursuant to orders issued in Runyenjes SRMCC No. 42 of 2011. The Land Registrar subsequently prepared reports dated 18th October 2011 and 7th March 2012 in which he concluded that parcel No. KAGAARI/KANJA/5453 ought to measure 0.070 hectares and not 0.103 hectares as reflected in the register, and that the excess acreage had been excised from the Respondent's parcel during subdivision. The Registrar recommended rectification of the register and amendment of the Appellant's title accordingly. Although those recommendations were made, the Appellant declined to surrender his title for correction. The earlier proceedings before the Runyenjes court were eventually dismissed on the ground that the court lacked jurisdiction to grant the relief sought, thereby prompting the Respondent to institute the present proceedings. Before the trial court, the Respondent testified and produced her title deed, green cards relating to the relevant parcels, proceedings from the earlier suit and the Land Registrar's reports. Her evidence was corroborated by the Land Registrar who testified that upon verification of the Registry Index Map and measurements taken on the ground, parcel No. KAGAARI/KANJA/5453 measured only 0.070 hectares and that the acreage reflected in the register was erroneous. He further testified that the resultant subdivisions exceeded the acreage of the parent parcel and that the excess acreage had been taken from the Respondent's land. The Appellant testified in his defence that he lawfully purchased the suit property, denied trespassing onto the Respondent's land and maintained that he was an innocent purchaser for value without notice. He further contended that the Respondent's claim was statute-barred, that the vendor and the Land Registrar ought to have been joined as parties and that if the acreage was reduced, he would suffer substantial loss because he had paid the purchase price based on the acreage appearing on the title. Upon considering the evidence, the learned trial magistrate found that the Respondent had proved her case on a balance of probabilities and ordered rectification of the register by reducing the acreage of parcel No. KAGAARI/KANJA/5453 from 0.103 hectares to 0.070 hectares, with costs to the Respondent. I have carefully reconsidered the entire record, the grounds of appeal, the rival submissions and the applicable law. In my respectful view, the learned trial magistrate properly appreciated both the facts and the law applicable to the dispute. The Respondent's claim was substantially anchored on the findings of the Land Registrar, whose statutory mandate under Sections 18 and 19 of the Land Registration Act includes determining and fixing disputed boundaries. The Registrar personally visited the suit land, verified the Registry Index Map, undertook measurements and concluded that parcel No. KAGAARI/KANJA/5453 had been erroneously registered as measuring 0.103 hectares whereas the correct acreage on the ground was 0.070 hectares. His further finding that the resultant subdivisions exceeded the acreage of the parent parcel remained uncontroverted throughout the proceedings. The Appellant neither produced a survey report nor called any expert witness to challenge those findings. His defence remained that he innocently purchased the land in the acreage reflected in his title. While I readily accept that the Appellant may have purchased the property in good faith, the doctrine of bona fide purchaser for value cannot validate an error in acreage arising from a survey or registration mistake. Sections 79 and 80 of the Land Registration Act expressly empower the Registrar and the Court respectively to rectify the register where registration has been obtained, made or omitted by fraud or mistake. The Court of Appeal in **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others** **(2015**) **eKLR** affirmed that rectification of the register may properly issue where registration resulted from fraud or mistake. The evidence before the trial court clearly established that the acreage reflected in the Appellant's title exceeded that of the parent parcel, a situation which could only be explained by an error during subdivision. Such an error cannot be perpetuated merely because the registered proprietor acquired the property without notice of the mistake. The Appellant's argument that the suit was statute-barred is equally untenable. Although the Respondent acquired her land in 1998, the evidence demonstrates that the discrepancy was only discovered following investigations undertaken by the Land Registrar in 2011 pursuant to court orders. The present proceedings were instituted in 2013 shortly after the earlier suit had been dismissed on jurisdictional grounds. In the circumstances, the learned trial magistrate correctly rejected the plea of limitation. The complaint regarding non-joinder of the vendor and the Land Registrar is likewise without merit. Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by reason only of misjoinder or non-joinder of parties. The issue before the court was whether the register accurately reflected the acreage of parcel No. KAGAARI/KANJA/5453. The Land Registrar testified and explained the investigations undertaken. If the Appellant considered that the vendor ought to indemnify him, nothing prevented him from seeking third-party proceedings or filing an appropriate counterclaim. He did not do so. The absence of those parties therefore did not prevent the trial court from effectually and completely determining the dispute before it. The Appellant further faults the trial court for failing to award compensation before ordering rectification. That complaint equally fails because the Appellant neither pleaded nor counterclaimed for compensation. It is now settled that parties are bound by their pleadings and a court cannot grant a remedy that has not been sought. See **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others** **(2014) Eklr.** The learned magistrate therefore cannot be faulted for declining to award relief which had neither been pleaded nor proved. The award of costs was a proper exercise of judicial discretion under Section 27 of the Civil Procedure Act, and no basis has been laid for this Court to interfere with that discretion. Having independently evaluated the entire record as required of a first appellate court, I am satisfied that the learned trial magistrate correctly found that the Respondent had proved, on a balance of probabilities, that parcel No. KAGAARI/KANJA/5453 was erroneously registered as measuring 0.103 hectares instead of 0.070 hectares and that rectification of the register was warranted under Sections 79 and 80 of the Land Registration Act. I find no error of fact or law that would justify interference with the judgment of the trial court. Accordingly, the appeal is devoid of merit and is hereby dismissed in its entirety. The judgment and decree of the Senior Resident Magistrate delivered on 10th April 2025 in Embu CM-ELC No. 70 of 2013 are hereby affirmed. The order directing rectification of the register in respect of Land Parcel No. KAGAARI/KANJA/5453 by amending its acreage from 0.103 hectares to 0.070 hectares shall remain in force. The Appellant shall bear the costs of this appeal. It is so ordered. DATED, DELIVERED AND SIGNED AT EMBU THIS 30TH JUNE, 2026 **HON. E.C CHERONO** **ELC JUDGE** In the presence of; 1. M/S Rose Njeru for the Respondent 2. Mr. Kiplimo H/B for Mugambi Njeru for the Appellant 3. Ruth C/A