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Court of AppealDismissedCivil Appeal 163 of 2017

Kinyuni v Nyambura & another

Court of Appeal
19 August 2022
4,329 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that land boundary disputes between neighbours must first go to the Land Registrar, not the courts.

What this practically means

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Executive summary

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This second appeal arose from a protracted boundary dispute between neighbouring parcels L.R. Nyeri/Watuka/738 and 739, originating in a 2001 Mweiga Law Disputes Tribunal complaint. The Provincial Appeals Committee directed the District Land Registrar to visit the site and settle the dispute; the High Court upheld the Tribunal's jurisdiction; and after the 2010 Constitution, the matter moved to the Environment and Land Court. Following a 2015 Court of Appeal judgment setting aside an earlier ELC ruling, a fresh County Land Registrar prepared a report (filed late) recommending that the long-undisturbed boundaries remain and that the Registry Index Map be amended. Waithaka J adopted the report, accepting the Registrar's explanation for the delay. The appellant appealed, contending the report was filed out of time, made without applying the relevant laws, and that the ELC had jurisdiction to interfere. The Court of Appeal framed a single issue: whether the judge rightly adopted the Registrar's report. It held that boundary disputes over registered land must be resolved by the Land Registrar in the first instance under sections 18 and 19 of the Land Registration Act, 2012, and that courts are barred from entertaining such disputes until the Registrar has determined the boundaries; the aggrieved party's remedy lies under sections 79(3A), 80, 86 and 91(9). The Court found the delay reasonably explained, held the Court of Appeal had become functus officio, and noted that adverse possession was not for the Registrar to determine. The appeal was dismissed in its entirety, with each party bearing their own costs given their neighbourly relationship.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge rightly or wrongly adopted the report and recommendation of the Land Registrar in respect of the boundary dispute

Key legal issues

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01

Whether the ELC rightly adopted the Land Registrar's report filed outside the 90-day timeline

Holding

Yes. The delay was reasonably explained and no prejudice was shown; the trial court properly exercised its discretion in adopting the report.

Reasoning

The Court of Appeal found the Registrar's explanation for the delay (failure by the Director, Land Adjudication and Settlement to provide an authenticated development map and area list) plausible. The trial court had considered the explanation and found no prejudice. Requiring the parties to return to the Court of Appeal for an extension was unnecessary since that court had become functus officio after remitting the matter.

p. 8
02

Whether the ELC had jurisdiction to interfere with the Land Registrar's report

Holding

No. Once the Registrar determines boundaries under the Land Registration Act, the court has no reason to interrogate the report; the aggrieved party's remedy is under section 86 by way of a case stated.

Reasoning

Sections 18(2) and 19 of the Land Registration Act, 2012 (mirroring sections 20 and 21 of the repealed Registered Land Act) vest boundary determination in the Registrar, and bar courts from entertaining boundary disputes until that determination is made. The report adopted was in line with the law, and the appellant had statutory avenues to challenge it which he had not invoked.

03

Whether the Land Registrar exceeded her mandate by recommending amendment of the Registry Index Map and acreages

Holding

No. The Registrar was to determine boundaries based on applicable laws, and the report recommending that boundaries remain and the RIM be amended was lawful.

Reasoning

The earlier Court of Appeal judgment ordered a fresh Registrar to determine boundaries according to applicable laws. The Registrar's recommendation that the undisturbed boundaries remain and that the Registry Index Map be amended to tally with the adjudication diagram fell within her statutory powers; the courts have no role in the Registrar's boundary determination function.

p. 7

Legal principles established

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  • Boundary disputes over registered land must be resolved by the Land Registrar in the first instance; courts may not entertain such disputes until the boundaries have been determined under the Land Registration Act.
  • Section 18(2) of the Land Registration Act, 2012 bars courts from entertaining boundary disputes unless the boundaries have been determined in accordance with that section.
  • A court that has ordered a report becomes functus officio; extension of time for compliance is a matter of discretion for the trial court, which may accept a reasonable explanation for delay.
  • A party aggrieved by a Land Registrar's boundary determination may challenge it under sections 79(3A), 80, 86 and 91(9) of the Land Registration Act, including review by way of a case stated.
  • Adverse possession is not within the province of the County Land Registrar; only the court can determine it.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear their own costs considering their relationship as neighbours

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nyeri (Environment and Land Court)
ELC Case No. 30 of 2015 (formerly HCCA 110 of 2008)
Jurisdiction invoked
Second appeal under the Court of Appeal's appellate jurisdiction over the High Court (ruling in ELC Case No. 30 of 2015)

Relief refused

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Setting aside the ruling of 31 October 2017 and all consequential orders

Appeal devoid of merit; the ELC rightly adopted the Land Registrar's report

p. 8

Direction to the Land Registrar to fix boundaries in accordance with the Court's judgment of 3 February 2015

The Registrar had complied with the earlier orders; the court became functus officio

p. 8

Costs

The parties shall bear their own costs considering their relationship as neighbours.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is clear that the dispute relating to boundaries ought to be resolved by the Land Registrar in the first instance. The decision thereof can then be challenged in court pursuant to the provisions of Sections 79 (3A), 80, 86 and 91 (9) of the Land Registration Act.
p. 8Primacy of Land Registrar in boundary disputes
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.
p. 6Section 18(2) Land Registration Act - jurisdictional bar
The court indeed became functus officio and the matter was reverted back to the trial court who rightly considered the reasons for delay.
p. 8Functus officio and extension of time
The end result is that the appeal before us is devoid of merit. The same is dismissed in its entirety. The parties shall bear their own costs considering their relationship as neighbours. Orders accordingly.
p. 8Final orders and costs
We however hasten to state that the issue of adverse possession was not the province of The County Land Registrar to address.
p. 8Limits of the Registrar's mandate - adverse possession

Issues in the judgment

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minor

Date of the Land Registrar's report stated inconsistently

minor

Original case number given as HCCC No. 110 of 2008 in one place and HCCA 110/2000 in the header

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kinyuni v Nyambura & another", Case Analysis (2022). Civil Appeal 163 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/923/eng@2022-08-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.