[2025] KEELC 3695 (KLR)

Portland Housing Cooperative Society Limited v Moyonkoi & 10 others; Matipei (Interested Party) (Environment & Land Miscellaneous Case E003 of 2023) [2025] KEELC 3695 (KLR) (5 May 2025) (Ruling)

Neutral citation: [2025] KEELC 3695 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment & Land Miscellaneous Case E003 of 2023

LC Komingoi, J

May 5, 2025

Between

Portland Housing Cooperative Society Limited

Plaintiff

and

Munyeti ole Moyonkoi

1st Defendant

Ochieng Midamba

2nd Defendant

Daniel Musungu

3rd Defendant

Ochieng Abdalla

4th Defendant

James Okeyo Midamba

5th Defendant

Esther Njeri Njuguna

6th Defendant

Stephen Kuyan Keshere

7th Defendant

Mawara Holding Limited

8th Defendant

Garunka ole Leken (Deceased)

9th Defendant

Nicholas Lapeshur ole Mungai

10th Defendant

Land Registrar Kajiado

11th Defendant

and

Sautet Jeremiah Matipei

Interested Party

Ruling

1. This is the Ruling in respect of the Notice of Motion dated 30th December 2022 brought under Sections 14,18,19,86 and 101 of the Land Registration Act, 2012, Sections 3 and 13 of the Environment & Land Court and Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B, 3A and 63(e) of the Civil Procedure Act and all the enabling Provisions of the Law.

2. It seeks orders:i.That the Decision of the Land Registrar Kajiado dated 19th December 2019 and delivered on the same day by P.K. Tonui (District Land Registrar) be and is hereby adopted as decision of this Honourable Court.ii.That Judgement be and is hereby entered in terms of the decision of the Land Registrar Kajiado dated 19th December 2019. iii.That the Parties who have encroached on Parcel No. Kajiado/Kaputiei North/27301 be ordered and directed to move out of the said parcel forthwith.iv.That costs of this application be provided for.

3. The grounds are on the face of the application and are set out in paragraphs a to f. The same is supported by the Affidavit of Mark Mbogo Maina, Regina Mumo Wambua and Benedict Mutuku Nduulu, Officials of the Applicant sworn on the 30th December 2022.

4. The application is opposed. There are grounds of opposition filed by the 1st and 7th Respondents dated 28th February 2023. There is also a Replying Affidavit sworn by Sautet Jeremiah Matipei, the 1st Respondent’s son, sworn on the 28th March 2023. There is also a Replying Affidavit sworn by Stephen Kuyan Keshere, the 7th Respondent on the 28th March 2023. There is a Replying Affidavit sworn by the Interested Party on the 10th December 2023.

5. On the 18th of September 2024, the Court with the consent of the parties directed the Notice of Motion be canvassed by written submissions.

6. The Plaintiff/Applicant’s submission are dated 20th January 2024. Counsel submitted the parties appeared before the Land Registrar who upon hearing the parties, determined and fixed the boundaries and made a note on the Register to that effect.

7. It is their case that the 1st Respondent has been uncooperative in having the decision implemented. The decision of the Land Registrar has not been appealed against. He prays that the orders sought be granted with costs.

8. The 1st and 2nd Respondents’ and the Interested Party’s submissions are dated 20th January 2025. It is submitted that the Land Registrar had a duty to give notice to the owners and occupiers of the adjacent land in question of the intention to deal with the boundary dispute, as well as accord such persons an opportunity to be heard.

9. It is further submitted that this was not done hence the land owners are likely to suffer loss if the said report is implemented. They pray that the application be found to be without merit and be dismissed.

10. I have considered the Notice of Motion, the Affidavit in support, the Responses thereto and the rival submissions. The issue for determination is whether this application is merited.

11. I have gone through the annextures to the Notice of Motion. The Notice dated 26th November 2019 was served on all the Respondents. Another Notice by the Land Registrar dated 10th December 2019 was served on the Respondents to appear on the 19th of December 2019 for the Ruling on the boundary dispute. The Ruling by the Land Registrar is dated 19th December 2019.

12. Regulation 40 (6) of the Land Registration (General) Regulations 2017 provides that; “Any party aggrieved by the decision of the Land Registrar made under paragraph 5 may within 30 days of the date of notification appeal the decision to the court.”

13. Despite having participated in the boundary dispute, and having knowledge of the decision by the Land Registrar, the Respondents chose not to appeal. Instead, they became uncooperative. Their opposition to this Notice of Motion is an afterthought. I rely on the case of Ali & 2 others VS Wang’ombe [2024] KEELC 4420 KLR in finding that the Respondents cannot challenge the decision of the Land Registrar by way of Replying Affidavit.

14. In conclusion, I find merit in this application and the same is allowed in the following terms;a.That the Decision of the Land Registrar Kajiado dated 19th December 2019 and delivered on the same day by P.K. Tonui (District Land Registrar) is hereby adopted as decision of this Honourable Court.b.That Judgement is hereby entered in terms of the decision of the Land Registrar Kajiado dated 19th December 2019. c.That the Parties who have encroached on Parcel No. Kajiado/Kaputiei North/27301 be ordered and directed to move out of the said parcel within thirty (30) days from the date of this Ruling.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 5TH DAY OF MAY 2025. L.KOMINGOIJUDGEIn The Presence Of:For the Plaintiff/ApplicantFor the 1st and 7th Defendants/RespondentsFor the 2nd to 6th, 8th to 11th Defendants/RespondentsFor the Interested PartyCourt Assistant: Mutisya