Ayany v African Banking Corporation Ltd & 2 others (Land Case E007 of 2023) [2025] KEELC 4136 (KLR)
The bottom line
#A Kisumu court ordered Kenya's land records restored after a bank-backed map alteration wrongly targeted a businessman's resort land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the dispute herein is a boundary dispute.
- 2.whether the amendments and/or alterations done to the Registry Index Map changed the position of land parcel No.Kisumu/Kasule/4642 (the charged property) from the position where it was on the map at the time of charging the property to the 1st Defendant to a different position.
- 3.whether the amendments and/or alterations were lawful
- 4.whether the Plaintiff is entitled to the relief sought.
- 5.what orders to make on costs.
Key legal issues
#Whether the dispute is a boundary dispute ousting the court's jurisdiction under section 18(2) of the Land Registration Act
It is not a boundary dispute; the claim was founded on trespass and both parcels belong to the plaintiff
The jurisdictional objection was not raised in the defence. The plaint pleaded trespass, not a boundary dispute. DW2, a surveyor, did not testify that the dispute was a boundary dispute. Since the suit lands belong to the plaintiff, there cannot be a boundary dispute between them.
Whether the amendment to the Registry Index Map changed the position of the charged property
It did; the amendment moved parcel 4642 to where 4950 was, deleting 4950 from the map
PW2 testified the 2013 and 2018 maps differed while the ground position remained the same. DW2 admitted he recommended numbering, witnessed the amendment at the survey office, and that the effect was deleting 4642 from its position, inserting 4694 there, and moving 4642 to land with a building already on it.
Whether the amendments were lawful
They were unlawful, arbitrary and violated Article 40 of the Constitution and sections 24, 25 and 26 of the Land Registration Act
The defendants did not disclose the law pursuant to which the changes were made. No approval for the numbering was proved. The owner was never notified of the alterations, contrary to section 79 of the Land Registration Act which requires consent and notice before rectification affecting title, and Article 40 protecting property from arbitrary deprivation.
Whether the plaintiff is entitled to the relief sought
Entitled to cancellation of the amendments, rectification of the RIM, permanent injunction and general damages of Kshs.1,000,000; not entitled to special damages
The tender letters evidenced no acceptance of the awards and no KRA returns or other proof of income; the claim for special damages failed. Cancellation and rectification restore the parcels to the pre-amendment position and secure the bank's correct security. Trespass onto parcel 4950 was not denied, justifying an injunction and general damages assessed at Kshs.1,000,000.
Legal principles established
#- Amendments to a Registry Index Map affecting a proprietor's title cannot be made without the proprietor's consent and notice
- Special damages must be specifically pleaded and strictly proved
- Where trespass to land is proved, damages may be awarded without proof of specific loss
Court orders
#- 1.An order directed at the Kisumu County Surveyor and Kisumu Land Registrar to cancel the amendments to the Kisumu/Kasule/Registry Index Map sheet 8 effecting repositioning, removing, altering or in any other manner interfering with land parcel numbers Kisumu/Kasule/4642, 4950 and 4737 made in 2018.
- 2.An order directed at the Kisumu County Surveyor and the Kisumu County Land Registrar for rectification of the Registry Index Map for Kisumu/Kasule sheet 8 reverting Kisumu/Kasule/4642 and 4950 to their original positions as at 2013.
- 3.An order of permanent injunction directed at the 1st Defendant, its agents, representatives or any other person acting under their directions restraining them from trespassing, interfering or in any other manner interfering with the Plaintiff's parcel of land known as Kisumu/Kasule/4950.
- 4.Kshs 1,000,000/- being general damages for trespass.
- 5.Costs of the suit.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13(2) of the Environment and Land Court Act
Relief refused
#Special damages for loss of income on cancelled contracts totalling Kshs.74,056,716/-
No evidence that tender awards were accepted or that the tendering process existed; special damages must be specifically pleaded and strictly proved
Costs
Costs of the suit awarded to the Plaintiff (costs follow the event under section 27 of the Civil Procedure Act).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the Defendants' actions were not only arbitrary but also unlawful and in violation of the plaintifi's right to property.
I find that the claim for special damages has not been proved on a balance of probabilities.
The result is that the court finds that the Plaintifi has proved his case on a balance of probabilities and hereby enters judgement in favour his favour against the Defendants jointly and severally
An order of permanent injunction directed at the 1st Defendant, its agents, representatives or any other person acting under their directions restraining them from trespassing, interfering or in any other manner interfering with the Plaintifis parcel of land known as Kisumu/ Kasule/4950.
Kshs 1,000,000/- being general damages for trespass.
Issues in the judgment
#Judgment is rendered with OCR character defects throughout (e.g. 'Plaintifi', 'efiecting', 'afiiecting'), and paragraph numbering is inconsistent
The judgment twice misstates the parcel numbers it is discussing (4590 and 4662/4694) when referring to parcel 4950/4642
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayany v African Banking Corporation Ltd & 2 others (Land Case E007 of 2023) [2025] KEELC 4136 (KLR)", Case Analysis (2025). ELC Case No. 81 of 2018 (transferred from Kisumu High Court Commercial Case No. 81 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4136/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.