Ogolla v County Land Registrar & 2 others

parcel Nos. 117496, 117497 and 117498, which arose from the same subdivision as the Appellant's parcel No. 117499, were not invited to participate in the proceedings; andthat the Land Registrar consequently arrived at an erroneous determination of the disputed boundary. 5. The principles governing a rst appellate court was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, namely that an appellate court must reconsider the evidence, evaluate it and draw its own conclusions, while giving due allowance for the fact that it did not itself hear or see the witnesses. 6. Equally, an appellate court does not interfere with a factual nding merely because it might itself have reached a dierent conclusion. Interference is justied where, among other things, the nding is based on no evidence, proceeds from a misapprehension of the evidence, or is founded upon a wrong principle. 7. With these principles in mind, I have considered the Record of Appeal, the impugned determination, the Surveyor's report, the mutation form, the grounds of appeal and the parties' respective submissions. 8. The following issues arise for determination;whether the Land Registrar properly exercised his statutory mandate in determining the boundary dispute;whether the Surveyor's report provided a proper technical basis for the determination;whether the failure to involve the proprietors of parcel Nos. 117496, 117497 and 117498 vitiated the proceedings;whether the Appellant's alleged purchase of ten acres aected the determination of the registered boundary; andwhether the Appellant has established sucient grounds for this Court to interfere with the Registrar's determination. 9. Sections 18 and 19 of the Land Registration Act place the determination of registered land boundary disputes, in the rst instance, within the statutory mandate of the Land Registrar. Section 18(2) expressly restricts the Court from entertaining proceedings relating to a boundary dispute unless the boundaries have rst been determined in accordance with the statutory mechanism. 10. Section 19 further provides for the procedure through which the Registrar may ascertain and x a boundary. Of particular relevance is the requirement that notice be given to the owners and occupiers of land adjoining the boundary in question and that the relevant persons be aorded an opportunity to be heard before the precise boundary is dened by survey. 11. The Registrar is therefore performing an adjudicative function. The question before this Court is whether, on the evidence presented in this appeal, the Registrar's exercise of that mandate has been demonstrated to have been erroneous. 12. The Court has carefully considered the Surveyor's report contained in the Record of Appeal. Contrary to the Appellant's contention that the Registrar merely relied upon an outdated survey report, the contents of the report disclose a considerably more comprehensive exercise. 13. The report records that the survey exercise was conducted in the presence of the parties or at least their representatives. Boundary points were picked on the ground. The points so picked were thereafter plotted using AutoCAD software and the acreage generated from the plotted data. Google Earth was additionally used for purposes of visualization. Of greater signicance, the Surveyor did not rely exclusively upon what was physically pointed out by the parties. The ground pickings were compared against the mutation records and the Registry Index Map. 14. The report records the respective boundary positions asserted in relation to the parcels. In respect of parcel No. 5373, the owners showed the conguration identied as GHBE, whereas in respect of parcel No. 5374 the conguration identied was ACDF. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5861/eng@2026-09-24 2

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15. Following analysis of the survey material, and in particular the Registry Index Map, the Surveyor concluded that the boundary of parcel No. 5374 ought to follow ACDF. The Land Registrar considered and adopted this technical conclusion. 16. The Appellant faults the Land Registrar for relying upon what he describes as an outdated Surveyor's report. Having considered the report itself, the Court is not persuaded that disagreement with the contents of the report, without more, demonstrates error in the Registrar's determination. The relevant question is whether the technical exercise adequately identied the disputed boundary using the available records and physical evidence. 17. In this instance, there was a physical exercise on the ground. Boundary points were picked in the presence of the parties. These points were electronically plotted. The resulting acreage was generated. The physical observations were thereafter compared against mutation records and the Registry Index Map. 18. The Appellant was therefore required to demonstrate what particular technical error arose from the use of the report. The Appellant did not present a contrary survey report which establishes that ACDF was an erroneous conguration. Neither has the Appellant demonstrated that particular coordinates were wrongly picked or plotted, that the Surveyor employed an incorrect mutation, or that a particular record which would have produced a materially dierent result was disregarded. 19. The Court cannot invalidate a technical conclusion merely upon a generalized assertion. There must be a demonstrated connection between the alleged deciency and the conclusion complained of. 20. There is, a further diculty with the appellate record. Although the Surveyor's report expressly states that the conclusion that parcel No. 5374 should follow ACDF was reached following analysis of the Registry Index Map, the said Registry Index Map has not been included in the Record of Appeal. 21. The signicance of that omission is heightened by the mutation form which the Appellant has placed before the Court. The mutation demonstrates the subdivision of parcel No. 116985 into the resultant parcels, including parcel Nos. 117496, 117497, 117498 and the Appellant's parcel No. 117499. However, parcel No. 5374 or 5373 does not appear anywhere on that mutation. Consequently, the mutation, standing alone, does not enable this Court to ascertain the spatial relationship between parcel No. 5374 and each of the resultant subdivisions of parcel No. 116985. 22. This is an appeal against the determination of the Land Registrar. The Appellant is the party asserting that the Registrar erred in adopting the Surveyor's conclusion derived, inter alia, from the RIM. It was therefore incumbent upon the Appellant to place before the appellate Court sucient material to demonstrate the alleged error. 23. Order 42 Rule 13(4) of the Civil Procedure Rules underscores the importance of the appellate record containing the maps and documents that were put in evidence and are necessary for determination of the appeal. 24. Without the Registry Index Map, this Court cannot independently ascertain whether the Surveyor misread it, overlooked a material cadastral feature appearing upon it, or arrived at a conclusion inconsistent with it. In the absence of this evidence the court cannot assume that because the Registry Index Map is absent from the appellate record, its contents must have contradicted the Surveyor's conclusion. 25. The consequence of this omission is that the Appellant has failed to place before the Court the material necessary to demonstrate that the technical conclusion he challenges was wrong. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5861/eng@2026-09-24 3

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26. The Appellant further contends that the proprietors of parcel Nos. 117496, 117497 and 117498 ought to have been invited to participate in the boundary proceedings. Section 19 of the Land Registration Act requires notice to owners and occupiers of land adjoining the boundary in question and requires the relevant (emphasis mine) registered persons to be aorded an opportunity to be heard. 27. The Appellant fails to establish that the owners of the parcels fell into the category that required notication. It is undisputed that parcel Nos. 117496, 117497, 117498 and 117499 share a common origin, having resulted from the subdivision of parcel No. 116985. But common derivation from a parent parcel is not synonymous with adjacency to the particular boundary under dispute. 28. Section 19 is concerned with the owners and occupiers of land adjoining the boundary in question. It does not follow that every proprietor of every subdivision derived from a common parent title must necessarily participate in every subsequent boundary dispute aecting one of the resultant parcels. 29. The mutation contained in the Record of Appeal does not depict parcel No. 5374. It therefore does not establish that parcel Nos. 117496, 117497 and 117498 adjoin parcel No. 5374 or that the ACDF boundary aects those parcels. There is therefore no evidence before this Court upon which I can conclude that determination of the ACDF boundary necessarily aected parcel Nos. 117496,117497 and 117498. 30. The Surveyor's report, on the other hand, records that the ground exercise was conducted in the presence of all parties. The Appellant does not dispute that he was present insisting only that he was not notied of the Ruling. 31. The Appellant also complains that the Registrar failed to take into account that he purchased ten (10) acres. There is a fundamental distinction between the acreage which a purchaser was contractually entitled to receive under an agreement for sale and the cadastral boundary of the parcel ultimately created and registered. 32. If the Appellant was contractually entitled to ten acres but the parcel ultimately conveyed to him was decient in acreage, that may raise a dierent legal question between the relevant parties to the transaction. It does not, without more, establish that the deciency must be recovered from parcel No. 5374. 33. There was a physical survey exercise. The parties were present. Boundary points were picked on the ground. The points were electronically plotted and acreage generated. The Surveyor compared the physical pickings against mutation records and the RIM and ultimately concluded that the boundary of parcel No. 5374 ought to follow ACDF. The Land Registrar adopted this technical nding. Ultimately, the burden rested upon the Appellant to demonstrate that the decision appealed from was erroneous, or that the impugned nding was unsupported by evidence, or founded upon an erroneous principle. 34. Having evaluated the record as a whole, I am satised that the Appellant has not demonstrated a sucient basis for interfering with the Land Registrar's determination 35. In the end, I nd no basis for interfering with the determination of the Land Registrar adopting the Surveyor's nding. Accordingly, the appeal is without merit and is hereby dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24TH DAY OF SEPTEMBER 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5861/eng@2026-09-24 4

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JUDY OMANGE JUDGE. In The Presence Of: Mrs Mutheu for Mr. Munyenze for Applicant. Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5861/eng@2026-09-24 5

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