https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4464

Musau v Musyoka & another (Environment and Land Case E007 of 2024) [2026] KEELC 4464 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4464 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Case E007 of 2024 EO Obaga, J July 16, 2026 Between Richard Mwania Musau Plaintiff and Benedetta Nzilili Musyoka 1st Defendant Patricia Nzuvu Musyoka 2nd Defendant Judgment Introduction 1.By a plaint dated 20th March, 2024, the Plaintiff claimed the following reliefs from the Defendants:a.A permanent order of injunction restraining the Defendants, their servants, workmen and agents from entering on and/or from trespassing into, cultivating or from in any way interfering with the suit property being Kibwezi/Kitengei”B”/190.b.An order directing the Land Registrar, Makeuni Count to cause the survey office to visit the site and carry out the survey exercise to establish the boundary between land parcel No Kibwezi/Kitengei “B”/190 and Kibwezi/Kitengei “B”/229.c.Damagesd.Interest thereon.e.Costs of the suitf.Any other relief the court deems fit to grant. 2.The Defendants filed a defence and raised a counterclaim in which they sought the following reliefs:a.A permanent injunction do issue against the Plaintiff by himself, his agents and servants from altering the demarcation boundary of 18th October, 2002 and trespassing to their land parcel Number Kibwezi/Kitengei “B”/229.b.That the Honourable court do order that the Land Registrar confirm the demarcation done on the 18th October, 2002 and establish the correct boundary as surveyed and established between land parcel Number Kibwezi/Kitengei “B”/229 and Kibwezi/Kitengei “B”/190.c.Costs of the suit plus interestd.Any other or further remedy that the honourable court may deem just and expedient. Background 3.The suit property is Kibwezi/Kitengei “B”/190 measuring 42.51 hectares (suit property). The suit property is registered in the Plaintiff’s name. The suit property had been allotted to Ruth Munyiva Paul Ndeto vide letter of offer dated 15th January, 2013. The allottee was required to pay Kshs.274,061.97 as outright purchase within 90 days. 4.The allottee did not pay the required amount in the offer letter. She instead entered into a sale agreement with the Plaintiff wherein she was paid Kshs.2,100,000/= for the 105 acres. The sale agreement was entered into on 27th February, 2014. The Plaintiff then paid the amount in the offer letter and later processed title in his name after a transfer in his favour by the Settlement Fund Trustee. Plaintiff’s Case 5.The Plaintiff contends that the Defendants have encroached into the suit property. The counsel for the parties entered into a consent in which the County Surveyor was to go to the ground and establish the boundary between the suit property and parcel No. 229 which is owned by the Defendants. The surveyor went to the ground and prepared a report dated 1st October, 2024. 6.Besides the court sanctioned survey report there was one other report dated 15th March, 2024. There is also a report by the Land Registrar dated 14th October, 2024. The two survey reports have different findings. 7.The Plaintiff adopted his witness statement dated 20th March, 2024. The Plaintiff states in the witness statement that he is the registered owner of the suit property. He further states that the Defendants have over a period of time trespassed on to the suit property where they have been cultivating and cutting down trees and committing wanton destruction after moving the surveyed common boundary. His plea to the Defendant to cease from the trespass has landed on deaf ears and that it is on this basis that he filed this suit in order to obtain a court order to aid in re-establishment of the common boundary. Defendants’ case 8.The Defendants adopted their separate but identical witness statements dated 24th February, 2025. They state that parcel 229 was owned by their late mother Mutheu Musyoka Nthaa. Their mother had recorded parcel No. Kibwezi/Kitengei “B”/229 in their names and that of their sister Sabeth Mueni Musyoka. Their land borders that of the plaintiff. They state that they have lived on their land since 1974 and have never had any boundary dispute between them and Paul Ndeto Mbindyo the husband of Ruth Munyiva Ndeto who sold the suit property to the Plaintiff after the demise of Paul Ndeto Mbindyo. 9.The Defendants state that parcel 229 was demarcated on 18th October, 2002 and they were given a demarcation number. There arose a boundary dispute in 2015 soon after the Plaintiff purchased the suit property from Ruth Munyiva Ndeto. They state that the Plaintiff started shifting the boundary which had been in existence for decades. They state that it is the Plaintiff who has encroached on to their land and that the map which the Plaintiff is relying on is erroneous. They state that the boundary report by private surveyors at the behest of the Plaintiff is illegal. They want the boundary re-established as per the demarcation of 18th October, 2002. 10.The Defendants called DW3 Sammy Ndeto who stated that he is son of Paul Ndeto Mbindyo and Ruth Munyiva Ndeto. This witness stated that it is the Plaintiff who is trying to shift the boundary and has encroached on to the Defendants’ land. He stated that his mother sold the suit property before succession and that the Plaintiff is intermeddling in the suit property. Parties submissions 11.The parties were directed to file written submissions. The Plaintiff filed submissions dated 12th February, 2026 which were erroneously titled as Defendants submissions. The Plaintiff also filed supplementary submissions dated 7th May, 2026. The Defendants filed submissions date 17th April, 2026. Plaintiff’s Submissions 12.The Plaintiff submitted that the letter of offer which was issued to Ruth Munyiva Ndeto had lapsed and that therefore she had no land to sell to the Plaintiff. The Plaintiff proceeded to pay the outright purchase and had the land transferred to him. 13.The Plaintiff submitted that as per the survey report dated 5th March, 2024, the Defendants had encroached into the Plaintiff’s land by 37 acres. It was submitted that the title held by the Plaintiff has not been challenged anywhere even in the counterclaim filed by the Defendant. 14.The Plaintiff submitted that all the procedures under the Land Adjudication Act were undertaken and there was no complaint by the Defendants. Finally the Plaintiff submitted that the Defendants had not adduced any evidence to show that he had trespassed on to parcel 229. Defendants’ Submissions 15.The Defendants submitted that the Plaintiff’s claim was a boundary dispute clam which this court should not entertain in view if the provisions of Section 18(2) of the Land Registration Act. They submitted that the reports by the surveyors established that what was in contention was a boundary dispute. The Defendants relied on the case of Sekento –vs- Sayo, County Surveyor, Kajiado County & Another (Interested Parties) 2025 KEELC 7341 (KLR) where it was held as follows:“The substance of the Plaintiff’s claim in this matter is the resolution of the boundary dispute. The inclusion of the peripheral prayer of injunction to refrain the Defendant from interfering with the boundary or encroaching into the Plaintiff’s land cannot confer jurisdiction on this court to determine what is clearly a boundary dispute. Consequently, the court finds and holds that it lacks the jurisdiction to entertain this matter. The Plaintiff has the liberty to approach the Land Registrar in accordance with the provisions of Section 18(2) of the Land Registration Act as read together with Rule 40 of the Land Registration (General) Regulations 2017. Rule 40, as this court has held previously is self-executing. It not only provides for the mode of application for reestablishing a missing boundary, or ascertainment of a boundary in dispute but also for the implementation of the decision of the Land Registrar”. Plaintiff’s supplementary submissions 16.In his supplementary submissions, the Plaintiff submitted that the issue raised by him is trespass to land and that the parties counsel had entered into a consent wherein it was agreed that a surveyor goes to the ground to ascertain whether there was encroachment. The report filed showed that what was in contention was a land claim. The Plaintiff further submitted that the Defendants cannot claim that this court has no jurisdiction to deal with this matter yet they are asking the same court to order that a surveyor goes to the ground to determine the boundary between the two parcels in accordance with the demarcation of 18th October, 2002. Analysis and Determination 17.I have carefully considered the evidence adduced by the Plaintiff and that of the Defendants. I have also considered the submissions by the parties herein. The issues which emerge for determination are firstly, whether this court has jurisdiction to determine this suit. Secondly, whether the court should order for re-establishment of the boundary between parcel No. Kibwezi/Kitengei “B”/190 and 229. Thirdly, whether the Plaintiff and Defendants are entitled to their respective claims. Fourthly which order should be made on costs. 18.The Defendants submitted that what is in issue is a boundary dispute and that as per Section 18 (2) of the Land Registration Act, this court has no jurisdiction to determine this case. The Plaintiff on the other hand submitted that as per one of the reports by the surveyors filed herein, the surveyor expressly stated that the Plaintiff’s claim is a land claim. 19.Section 18 (2) of the Land Registration Act provides as follows:“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”. 20.The parties counsel recorded a consent on 21st May, 2024 in which they agreed that the Land Registrar Makueni County do cause the survey office to establish the boundary between the two parcels and further establish who has encroached into the others land. Pursuant to this consent, a surveyor from Makueni visited the suit parcels and filed a report which found that what was on the ground and the registry index map tallied and this brought out an issue of land claim. The report found that there was an acreage of 43.56 acres which was in dispute. 21.The Plaintiff had pleaded for injunction and damages for trespass. This being the case coupled with the report of 1st October, 2024, I find that this court has jurisdiction to entertain this suit. 22.On the second issue, it is clear from the two survey reports filed herein that is the one of 5th March, 2024 and 1st October, 2024 as well as the report of the Land Registrar dated 14th October, 2024, that there is no agreement on the position on the ground. It is also not clear whether the suit properties were as a result of the process of adjudication or whether it was a settlement scheme where the beneficiaries were being allocated land already surveyed. 23.The evidence of the Defendants and that of the surveyors do not tally on the acreage of the Defendants’ land. This is the same case with the Plaintiff’s acreage according to survey though the acreage in the title and the letter of offer are the same. 24.Though the Plaintiff did not come out openly to state whether the suit property was a product of land adjudication in his submissions he submitted that the area underwent adjudication process. The Defendants produced extract of an adjudication register without showing the acreage of parcel 229. If the area in issue was as a result of adjudication, then the adjudication records are there and it will not be difficult to show what was the size of parcel 229 and 190. 25.The report of the Land Registrar was that the existing boundary on the ground was clearly visible. There was evidence that there was a footpath which separated the two parcels and that when the owner of the suit property intended to sell the suit property, she marked the boundary using paint. If this is what is on the ground, then this must be the boundary which existed and that is what the Plaintiff purchased as there is no evidence that there was a survey conducted by the Plaintiff to ascertain that what he purchased was 105 acres which was shown in the sale agreement or letter of offer given to Ruth Munyiva Ndeto which showed that she was offered 42.51 hectares. It is therefore necessary that the court directs the County Surveyor to establish the boundary between the two parcels taking into account the demarcation records available. 26.On the third issue, based on the evidence adduced, there is no clear evidence that either the Plaintiff or the Defendants have encroached into each other’s parcel. This being the case, this court cannot grant injunctive reliefs sought by the Plaintiff and the Defendants. Equally, there is no basis upon which the Plaintiff can be awarded damages. However, it is evident that there is need for the Land Registrar Makueni to cause the survey office to go and reestablish the boundary between parcel Nos. Makueni/Kitengei “B”/190 and 229 with specific reference to demarcation which may have occurred on or about 18th October, 2002. Disposition 27.I therefore find that both the Plaintiff and Defendants have partially succeeded in their respective claims. I therefore order that the Land Registrar Makueni County do cause the survey office to visit parcel Nos. Makueni/Kitengei “B”/190 and 229 and reestablish the boundary between the two parcels with special reference to the demarcation which may have happened on or about 18th October, 2002. As both parties have partially succeeded, I order that each party do bear their own costs. JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 16TH DAY OF JULY, 2026.................................................HON. E. O. OBAGA, FCIArbJUDGEIn The Presence Of:Mr. Mbindyo for PlaintiffMr. Kyule for DefendnatCourt assistant - Musyoki