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Case Brief · caselaw.co.ke
ELCOtherEnvironment & Land Case 45 of 2022 (Formerly Migori ELC Civil No. 11 of 2019 and Homabay CMC Land Case No. 62 of 2018)

Bunde v Owuor & 3 others

Environment and Land Court of Kenya
8 November 2023
1,016 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ended a decade-old land dispute by adopting the Land Registrar's boundary report as its final judgment, with no costs awarded.

What this practically means

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Executive summary

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The plaintiff, Joseph Odhiambo Bunde, sued four defendants seeking a declaration that land parcels Kanyada/Kotieno-Katuma 'A'/1261, 1262, 1266, 1267, 1268 and 1226 were fraudulently excised from land awarded to him in a 1964 magistrates' court case, rectification of the registers, eviction of persons occupying the parcels, general damages with interest, and costs. The defendants denied the claim in toto, asserting ownership of distinct parcels and describing the suit as an abuse of process. The suit, originally lodged in the Chief Magistrate's Court and transferred to the Environment and Land Court, was the subject of a consent order of 18th October 2022 directing the Homa Bay Land Registrar and surveyor to file a report pursuant to orders made in Kisii HCC No. 119 of 1991, with the plaintiff meeting the costs. The Registrar's report, filed on 10th February 2023, found that the plaintiff had subdivided and sold his entire land, that the original parcel Katuma A/1277 no longer exists, that his interest on the ground was extinguished, and that the orders could not be implemented having been overtaken by events. Both counsel had no objection to adopting the report. The court held that the report, generated under sections 18 and 19 of the Land Registration Act, finally determined the dispute, noting the suit was ten years old and that litigation must come to an end. Judgment was entered in terms of the report, and, given the amicable resolution, each party was ordered to bear their own costs.

Questions the Court framed

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

  1. 1.Whether the Land Registrar's report filed on 10th February 2023 finally determined the issues in the dispute
  2. 2.Whether judgment should be entered in terms of the Land Registrar's report
  3. 3.Who should bear the costs of the suit

Key legal issues

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01

Whether the Land Registrar's report finally determined the dispute

Holding

Yes - the report was generated in accordance with sections 18 and 19 of the Land Registration Act and resolved the dispute, so judgment was entered in its terms

Reasoning

The court noted the report was produced pursuant to a consent order directing the Land Registrar and surveyor to file a report further to orders made in Kisii HCC No. 119 of 1991. The report found the plaintiff had subdivided and sold his entire land, the original parcel no longer exists, his interest on the ground was extinguished, and the orders could not be implemented having been overtaken by events. Both counsel had no objection to adopting the report.

p. 3
02

Costs of the suit

Holding

Each party to bear their own costs given the amicable resolution

Reasoning

The defendants' counsel sought costs; the plaintiff's counsel urged each party to bear own costs in light of the amicable determination. The court was guided by section 13(7) of the Environment and Land Act, the proviso to section 27(1) of the Civil Procedure Act and the Samuel Kamau Macharia decision on award of costs, and held costs inappropriate.

p. 3

Legal principles established

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  • A boundary/determination report properly generated under sections 18 and 19 of the Land Registration Act can finally determine a land dispute and be adopted as judgment
  • Litigation must come to an end, particularly in aged suits

Court orders

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  1. 1.Judgment entered in terms of the Homa Bay Land Registrar's report filed in court on 10th February 2023
  2. 2.Each party to bear their own costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act, 2015 (sections 13 and 18-19 Land Registration Act invoked for boundary determination)

Relief refused

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Costs of the suit sought by the defendants

Parties resolved their issues amicably, making an award of costs inappropriate

p. 3

Costs

Each party to bear their own costs of the suit

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.

A fortiori, Judgement be and is hereby entered in terms of HomaBay Land Registrar's report filed in court on 10th February 2023 as stated in paragraph 4(a) to (f) hereinabove.
p. 3disposition - adoption of Land Registrar's report as judgment
Indeed, parties have resolved their issues amicably thus, award of costs would be inappropriate herein. So, parties to bear their own costs of this suit.
p. 3costs order
This suit is aged ten years. The cardinal principal is that litigation has to come to an end.
p. 3finality of litigation
I, would applaud the parties for resolving their disputes in line with Article 159(2) (b) and (c) of the Constitution of Kenya, 2010.
p. 3alternative dispute resolution under Article 159(2)

Issues in the judgment

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material

Date contradiction: plaint dated 19 December 2023 but judgment delivered 8 November 2023 and suit transferred in 2019

minor

Defence dated 27th November 2015 predates the suit as described

minor

Statute years given inconsistently

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bunde v Owuor & 3 others", Case Analysis (2023). Environment & Land Case 45 of 2022 (Formerly Migori ELC Civil No. 11 of 2019 and Homabay CMC Land Case No. 62 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21448/eng@2023-11-08

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