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ELCPartially AllowedNot stated in the judgment (plaint dated 20th March, 2024)

Musau v Musyoka & another (Environment and Land Case E007 of 2024) [2026] KEELC 4464 (KLR)

Environment and Land Court
16 July 2026
2,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered owner of Kibwezi/Kitengei "B"/190 (42.51 hectares), sued alleging that the Defendants, owners of the adjoining parcel 229, had trespassed, cultivated and destroyed trees on his land after shifting the common boundary. He sought a permanent injunction, an order directing the Land Registrar to establish the boundary, damages, interest and costs. The Defendants denied trespass, asserted a boundary fixed at demarcation on 18th October 2002, and counterclaimed for an injunction and confirmation of that demarcation, invoking Section 18(2) of the Land Registration Act to challenge the court's jurisdiction and relying on Sekento v Sayo. Counsel consented to a court-sanctioned survey, which produced a report of 1st October 2024 finding the ground position matched the registry index map, with 43.56 acres in dispute; a conflicting private survey of 5th March 2024 (claiming 37 acres' encroachment) and a Land Registrar's report of 14th October 2024 were also filed. The court framed four issues: jurisdiction, re-establishment of the boundary, entitlement to the respective claims, and costs. It held that because trespass and injunction were pleaded, the court had jurisdiction despite the boundary element. On the evidence, it found no clear proof of encroachment by either party, rejected injunctive relief and damages for both sides, and directed the Land Registrar, Makueni County, to cause the survey office to re-establish the boundary with reference to the 2002 demarcation. Both parties were held to have partially succeeded and each party was ordered to bear their own costs. Judgment was delivered on 16th July 2026 by Hon. E. O. Obaga, FCIArb, Judge.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction to determine this suit
  2. 2.Whether the court should order re-establishment of the boundary between parcel No. Kibwezi/Kitengei "B"/190 and 229
  3. 3.Whether the Plaintiff and Defendants are entitled to their respective claims
  4. 4.Which order should be made on costs

Key legal issues

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01

Jurisdiction over boundary dispute claims under Section 18(2) Land Registration Act

Holding

The court has jurisdiction because the suit pleaded trespass and injunction, not merely a boundary determination

Reasoning

The Defendants invoked Section 18(2) of the Land Registration Act to oust the court's jurisdiction, relying on Sekento v Sayo. The court held that although a boundary question arose, the Plaintiff pleaded trespass and injunction, and counsel had consented to a survey to establish encroachment; the report of 1st October 2024 supported that framing. The court therefore found jurisdiction to entertain the suit.

02

Whether either party encroached on the other's land

Holding

The evidence did not clearly establish encroachment by either party; injunctive relief and damages refused

Reasoning

The two survey reports and the Land Registrar's report conflicted, and the parties' evidence on acreage did not tally. The Land Registrar found the existing ground boundary clearly visible, marked by a footpath and paint marks, which was the boundary the Plaintiff purchased. Without clear proof of encroachment, neither party could obtain injunctions or damages; instead the boundary required official re-establishment.

p. 5
03

Re-establishment of the boundary

Holding

The boundary should be re-established by the County Surveyor under the Land Registrar's direction, referencing the 2002 demarcation

Reasoning

There was no agreement on the position on the ground, and it was unclear whether the parcels arose from adjudication or a settlement scheme. The Defendants produced an adjudication register extract without showing the acreage of parcel 229. Given the conflicting survey reports, the court directed that the Land Registrar cause the survey office to re-establish the boundary with reference to the demarcation of about 18th October 2002.

Legal principles established

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  • Under Section 18(2) of the Land Registration Act a court may not entertain boundary disputes unless the boundaries have been determined under that section; but where trespass and injunction are pleaded alongside a boundary issue, the court retains jurisdiction

Court orders

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  1. 1.Land Registrar Makueni County to cause the survey office to visit parcel Nos. Makueni/Kitengei "B"/190 and 229 and re-establish the boundary between the two parcels with special reference to the demarcation which may have happened on or about 18th October, 2002
  2. 2.Each party to bear their own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil suit; jurisdiction considered under Section 18(2) of the Land Registration Act

Relief refused

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Plaintiff's permanent injunction restraining trespass

No clear evidence of encroachment by either party

p. 5

Damages to the Plaintiff

No evidentiary basis established

p. 5

Defendants' counterclaim injunction and order confirming the 18th October 2002 demarcation

Both parties only partially succeeded; boundary re-establishment referred to the Land Registrar instead

p. 5

Costs

Each party to bear their own costs

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.

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.
p. 5Final orders - boundary re-establishment
As both parties have partially succeeded, I order that each party do bear their own costs.
p. 5Costs
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. 4Section 18(2) Land Registration Act
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.
Jurisdiction

Issues in the judgment

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minor

Conflicting dates for the private survey report within the judgment

minor

Plaintiff's submissions dated 12th February, 2026 erroneously titled as Defendants submissions

minor

Judgment refers to parcel numbers as Makueni/Kitengei "B"/190 and 229 in the disposition while the plaint used Kibwezi/Kitengei

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, "Musau v Musyoka & another (Environment and Land Case E007 of 2024) [2026] KEELC 4464 (KLR)", Case Analysis (2026). Not stated in the judgment (plaint dated 20th March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4464/eng@2026-07-16

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