Musau v Musyoka & another (Environment and Land Case E007 of 2024) [2026] KEELC 4464 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to determine this suit
- 2.Whether the court should order re-establishment of the boundary between parcel No. Kibwezi/Kitengei "B"/190 and 229
- 3.Whether the Plaintiff and Defendants are entitled to their respective claims
- 4.Which order should be made on costs
Key legal issues
#Jurisdiction over boundary dispute claims under Section 18(2) Land Registration Act
The court has jurisdiction because the suit pleaded trespass and injunction, not merely a boundary determination
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.
Whether either party encroached on the other's land
The evidence did not clearly establish encroachment by either party; injunctive relief and damages refused
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.
Re-establishment of the boundary
The boundary should be re-established by the County Surveyor under the Land Registrar's direction, referencing the 2002 demarcation
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
#- 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
#- 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.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit; jurisdiction considered under Section 18(2) of the Land Registration Act
Relief refused
#Plaintiff's permanent injunction restraining trespass
No clear evidence of encroachment by either party
Damages to the Plaintiff
No evidentiary basis established
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
Costs
Each party to bear their own costs
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 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.
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
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.
Issues in the judgment
#Conflicting dates for the private survey report within the judgment
Plaintiff's submissions dated 12th February, 2026 erroneously titled as Defendants submissions
Judgment refers to parcel numbers as Makueni/Kitengei "B"/190 and 229 in the disposition while the plaint used Kibwezi/Kitengei
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.