Philip Odando v The Land Registrar, Nandi County & Another; Kennedy Libabu, Ainea Ababu & Japheth Karakacha (Interested Parties)

JAPHET KARAKACHA…………………………….3RD INTERESTED PARTY JUDGEMENT 1. The Applicant through Kagna and Advocates instituted this Judicial Review Application via a Notice of Motion Application dated 3rd December 2025 seeking the orders infra: a) Spent. b) Spent c) Spent d) That the Honourable Court be pleased to grant an ORDER OF CERTIORARI to remove into this Honourable Court and quash the decision of the land Registrar, Nandi County made on 3 rd November 2025, altering the boundaries Nandi/Kapseng'ere/486 of and Lr Lr No No. Nandi/Kapseng'ere/1096, which boundary alteration blocked the applicants legally existing road. KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 2

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e) That the Honourable Court be pleased to grant an ORDER of MANDAMUS compelling the land Registrar Nandi County; i) To remove and reinstate the lawful and original historical boundaries of LR No Nandi/Kapseng'ere/486 and Nandi/Kapseng'ere/1096 as they existed prior to the impugned decision of 3rd November 2025 and ii) To Restore and reopen the applicant’s access road to their parcel. f) That the Honourable Court be pleased to grant an ORDER of PROHIBITION, Prohibiting the land Registrar whether by himself, his officers, agents or any person under his instructions from interfering, altering or blocking the applicants access road or carrying out any further boundary alterations to LR Nandi/Kapseng'ere/486 No. and Nandi/Kapseng'ere/1096 without due process under the law. g) That costs of this application be born by the Respondent and the third party. KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 3

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h) Any other relief just and expedient to grant. 2. The Applicant relied on several grounds in support of his Application and they include: a) ILLEGALITY – the land Registrar acted without justification by altering a boundary without conducting a lawful dispute process under Section 18-21 of the Land Registration Act. b) PROCEDURALLY IMPROPRIETY – the Applicant view, the elders view, the historical boundary of over 20 years was ignored and altered without any justification in law. c) Violation of the right to fair administrative action under Article 47 of the Constitution and unfair Administration Actions Act, including failure to give reasons, notice, or an opportunity to be heard. d) Irrationality and reasonableness. The decision blocked an established public/private historical access road of over 20 years and used for many years contrary to planning records and the RIM. 3. The 1st Respondent filed their Replying Affidavit dated 16th March 2026 sworn by the Land Registrar Nandi County, KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 4

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Mr. Nicholas Obiero who stated that under Sections 18 to 21 of the Land Registration Act, 2012, the responsibility to determine boundaries, ascertain boundary lines, or alter boundary features vests exclusively in the Land Registrar, and not in private surveyors. That they advised the parties that any fence erected pursuant to an unauthorized private survey was irregular and unlawful, and directed that such fence be removed pending a lawful boundary determination by this office. 4. Further, he stated that due to time constraints (only one day difference), he was unable to prepare fresh summons reflecting the new date. That nevertheless, Section 87(1) of the Land Registration Act 2012, provides that a person is deemed to have been accorded an opportunity to be heard “if the person attends before the Registrar personally or by an Advocate or other agent, and is given such an opportunity,” with or without written notice. That on the basis of the parties’ express oral, SMS, and WhatsApp agreements and their subsequent attendance, he proceeded with the ground visit on 16th October 2025. KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 5

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That all parties were present, including the Applicant, the Interested Parties, witnesses, the Area Chief, and the Government Surveyor. That proceedings were conducted on site, statements were recorded, and a survey was undertaken. That the findings and determination arising therefrom are contained in his report dated 3rd November 2025, which is annexed to the affidavit and marked as "NAO-3". 5. Furthermore, the 1st respondent averred that with respect to the allegation of procedural impropriety, the procedure prescribed under Regulation 40 of the Land Registration (General) Regulations, 2017, was fully complied with. That notices were issued to all persons whom the Registrar deemed necessary for the resolution of the dispute. That all parties were accorded a fair opportunity to be heard, their testimonies were recorded, and a survey exercise was conducted. The determination was made based on the evidence presented during the hearing, observations made on the recommendations ground, of the and the Government professional Surveyor. The outcome was communicated to the parties by marking the KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 6

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boundary on the ground in their presence and by preparing a written report, which was subsequently supplied to the Applicant's advocate. 6. The Applicant filed their submissions dated 10 th June 2026 whereby he stated that the 1st respondent ignored requirements under the Land Act and that he acted hastily, having been compromised by the Interested Parties. He insisted that Sections 18 to 21 of the Land Registration Act mandate the Registrar to be fair in the discharge of his duties and not to be irrational and biased. 7. Also, the Applicant submitted that Article 47 of the Constitution of Kenya, 2010 provides for the right to fair administrative action that is lawful, reasonable and procedurally fair. That Section 4 of the Fair Administrative Action Act requires administration to give prior notice and opportunity to be heard, reasons for the decision and a fair procedure before making a decision. That the Registrar did not give notice to all affected neighbors. That the failure violated the principle of natural justice as it meant that other neighbors were condemned unheard. Reliance was made on the case of Municipal Council of KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 7

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Mombasa –vs- Republic Consultants Limited (2022) eKLR that judicial review applications are concerned with the decision making process and not the merits of the said decision. 8. The 1st Respondent filed their submissions dated 3 rd June 2026 that the 1st Respondent was squarely within his statutory mandate to determine the boundary dispute through the ascertainment and fixing of the boundary as per Section 19 of the Land Registrations Act. Reliance was made on Regulation 40 of the Land Registration (General) Regulations 2017 that they adhered to the required procedure. 9. On the issue of issuance of notice, the 1 st respondent submitted that Exhibit NAO-1 was a copy of the notice that was issued to the Applicant and the Interested Parties, whose lands share the disputed boundary and that the said notice was sufficient evidence of summons. That an extract of communication between the 1st Respondent and the Applicant’s son, the 1st Interested Party and the Chief (NAO-2) informed them of his inability to attend the site KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 8

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visit on 14th October 2025 and agreeing on 16 th October 2025. 10. In respect of the right to be heard, the 1 st respondent relied on Section 87 of the Land Registration Act which defines “opportunity to be heard.” That the Applicant and the 1st Interested Party attended before the 1st Respondent and made their representations which were captured in the copy of the report annexed as NAO3. Further, that the survey was conducted by the government surveyor in the presence of both parties and their witnesses and a determination made on the ground in presence of all parties present. 11. The 2nd interested party submitted that the 1st respondent acted with open bias and hostility by chasing the Applicant from his office when he had visited it sometime in July 2025 together with the 1 st and 3rd Interested Parties. Additionally, that the 1 st respondent blocked the Applicant from cross-examining or asking questions to the 1st Interested Party thereby violating Article 50 of the Constitution of Kenya, 2010, and Sections 18 and 19 of the Land Registration Act, 2016 (2012). KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 9

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12. Further, he submitted that the Land Registrar removed a boundary that had been mutually established through Alternative Dispute Resolution mechanisms on 25th April 2025. He also submitted heavily on the Land Registrar’s corrupt ways by indicating that they were asked to pay for the statutory application fee directly to the Registrar and that no receipt was ever issued to them to date. 13. This Court has considered the parties’ respective pleadings, the rival submissions and authorities cited therein. In deducing the issues for determination, this Court is guided by the authority highlighted by the Applicant being the Court of Appeal decision in the case of Municipal Council of Mombasa (supra) in which the Court observed thus: “Judicial review is concerned with the decision making process, not with the merits of the decision itself :the Court would itself with such issues as to whether the decision makers had the Jurisdiction: whether the persons affected by the decision were heard before it was made KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 10

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and whether decision in making the decision ,the maker took into account relevant matters.......The Court should not act as a Court of Appeal over the decide which would involve going into merits of the decision itself such as whether there was or there was not sufficient evidence to support the decision”. 14. In that regard, this court will consider the following issues: i. Whether the Registrar’s decision was lawful and procedural? ii. Whether there was irrationality and unreasonableness? iii. Whether the Applicant is entitled to the Judicial Review Orders sought? 15. The Applicant does not dispute the mandate bestowed upon the Land Registrar under Section 19 of the Land Registration Act to determine boundary disputes. The Applicant faults the Registrar for being compromised by the 1st Interested Party, being biased and irrational. He generally cites sections 18 to 21 of the Land Registration KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 11

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Act and submitted that no notice was given to the neighbors affected by the decision of the Registrar. 16. Regulation 40 of the Land Registration (General) Regulations 2017 is quite instructive on the issue of procedure by a Land Registrar in conducting a site visit. The said regulation provides as follows: 40. (1) An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section 18(3) of the Act in Form LRA 23 set out in the Sixth Schedule. (2) The Registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for resolution of the dispute if a person has complied with paragraph (1). (3) The Registrar shall notify the office responsible for survey of land of the intended hearing of a boundary dispute and require their KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 12

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attendance if a person has complied with paragraph (1). (4) In determining a boundary dispute lodged in accordance with paragraph (1), the Registrar shall be guided by the recommendation of the office responsible for survey of land. (5) The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs (1) and (2) an opportunity to be heard, make a determination of the dispute and inform the parties accordingly. (6) Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notification, appeal the decision to the Court. (7) Upon expiry of thirty days, the Registrar shall— (a) cause to be defined by survey the precise position of the boundaries in question; KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 13

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(b) file a plan approved by the authority responsible for survey of land containing the necessary particulars; and (c) make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel. (8) A dispute for determination of a boundary and or parcel shall, unless in the case of special circumstances, be completed within a period not exceeding six months from the date of filing the application. 17. The Applicant asserted that the Registrar failed to issue notices as required by sub-rule 2 above and that for that reason some neighbors, who were affected by the decision of the Registrar, were denied a chance to be heard. On the other hand, the 1st Respondent annexed ‘NAO-1 ‘ being a copy of summons dated 13 th August 2025 served to Jamin Abwoga Anuru and Laban Buzo Matini, through the office of the Chief, Terik Location. The said summons invited the respective parties for a site visit on KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 14

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14th October 2025 for purposes of ascertainment and fixing of boundary. 18. On the material day, the 1st Respondent explained that he was summoned to produce documents before the Environment and Land Court at Kapsabet in ELC Case No. E005 of 2022. This averment has not been disputed. What has been disputed by the Applicant and the 2 nd Interested Party is that subsequent to that, no fresh summons were issued for the next date of site visit which was set for 16 th October 2025. On this, the 1st Respondent attached ‘ MAO2’ being an extract of communication between himself and the chief, the 1st Interested Party and the Applicant. In the said communication, the 1st Respondent informed the 1st Interested Party as follows: “I will be there on 16th Thursday, if both parties are willing, we can do it on that day. Confirm and send your name.” to this, the 1st Interested Party responded and said: “All parties are willing, we will be waiting…Kennedy Libabu.” The 1st Respondent sent the Applicant the same message and the Applicant responded as follows: “Thursday 16th KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 15

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works well for us and you’re most welcome. Isaiah Luyara Odando” 19. On 16th October 2025, all parties attended the site visit as scheduled and they both brought their witnesses. According to the report filed by the Registrar, the people in attendance on the said date were as follows: Philip Odando, John Zwere, Isaiya Luyare, Ainea Babu, Phanueal Zwere, Collins Chanzu, Adam Orado, Wyclife Mwale, Joseph Kibereng, Matroba Migide (village elder), Paul Kagota, Boaz Kerei, Mark Bididi, Samwel Nyambu, Dunstan Muiina, Sammy Asige, Kalvin Ratikiro, Alea Anuru, Jackson Abunama, Kennedy Libabu, Japheth Karakacha, Elisha Mudora, Kelvin Ngadi, Recho Mugesi, Joyce Kebendi and Sarah Abwova. 20. Regarding the issue of notice and specifically failure of the 1st Respondent to issue a subsequent summons for appearance, this court examines the essence of summons in such proceedings. In the case of Paulina Wanza Maingi v Diamond Trust Bank Limited & Another [2015] eKLR, it was held that it would be against justice to dismiss a suit on grounds that summons to enter KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 16

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appearance were not served yet the defendant has actively participated in the proceedings without protesting. Essentially, the Court stated that where a party is already aware of proceedings, takes part in them and a determination is made, such party cannot turn around to fault the process due to lack of summons. 21. So, this Court finds that the Applicant was duly notified of the site visit, first through the summons dated 13th August 2025 giving a clear 2 month-notice of the site visit and then subsequently through the telecommunication on phone adjusting the date to 16 th October 2025. The Applicant, together with all his witnesses and other parties confirmed the date to be convenient. They all attended the site visit and actively participated in the proceedings. The essence of summons as contemplated under sub-regulation 2 of the Land Registration (General) Regulations 2017 is to give notice to parties to enable them attend the site visit. This purpose was duly achieved through the initial summons issued and the subsequent communication. KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 17

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22. Based on the attached report by the Land Registrar, both parties gave their presentations on the issue in dispute. The said presentations have been captured in the report and none of the parties has disputed making the said presentations. It has been explained that upon the said presentations by parties, and guided by the recommendation of the government surveyor, the Land Registrar made the final determination in the presence of all the parties. This Court finds the determination to have been procedurally sound and lawful. 23. The Applicant has alleged that the Registrar was compromised and biased. These allegations convert this Court into a quasi-criminal court because the allegations are of a criminal nature. In such allegations, the standard of proof moves a notch higher above the balance of convenience but just below that of beyond reasonable doubt. This Court has considered the documents filed in court by the Applicant and the 3rd Applicant who has also heavily submitted on biasness and hostility, there is no iota of evidence filed in court to show bias or compromise. Knowing how high the standard of proof in such matters is, KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 18

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mere allegations of bias and compromise without tangible evidence cannot hold any water. The said allegations are dismissed. 24. The Applicant contends that the 1 st Respondent’s decision is irrational and unreasonable because it interfered with a boundary that has existed for over 20 years and one that has been known by the elders and several other neighbors. He said that the decision blocked an established public/private historical access road of over 20 years. From the pleadings of the parties, it is clear that the Applicant initiated the process that was undertaken on the land. He originally wanted to erect a fence to demarcate where the boundary was. To do so, and noting that the Applicant said that the boundary line had vanished and was not visible anymore, he approached the 1st Interested Party who, upon discussions, agreed to have the Applicant bring a surveyor. The Applicant procured the services of a private surveyor who visited the site, surveyed the boundary, and based on the testimonies of the witnesses who attended the site visit, the private surveyor removed the original beacon that had been KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 19

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erected around 1978 and drew a fresh boundary. The 1 st Interest Party objected to the new boundary claiming it had encroached in his property. 25. Following the objection by the 1 st Interested Party, both parties approached the Land Registrar on or about July 2025 and submitted their dispute. On the preliminary hearing of the parties, the Land Registrar directed that the fence erected pursuant to the private surveyor’s directions be removed because such disputes were only to be resolved by the Land Registrar and not private surveyors. Thereafter, the Land Registrar arranged for a site visit to which both parties agreed to participate. Indeed, on the said day of the site visit, both parties attended together with their witnesses. 26. Section 18 (2) of the Land Registration Act, read together with section 19 of the same Act and Regulation 40 of the Land Registration (General) Regulations 2017 confer the Land Registrar with the jurisdiction to handle boundary disputes. Indeed, in the case of Selempo v Nchoki 2 others (Environment and Land Case 70of2020) 2026KEELC1013(KLR) (19February2026), KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 20

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Mwangi J temporarily closed a land case and directed parties to allow the Land Registrar to conclude their determination of the boundary dispute, emphasizing that the jurisdiction to determine such disputes is solely on the Land Registrar. 27. Essentially, the boundary on the parcels of land owned by the Applicant and the 1 st Interested Party had disappeared. The parties wanted to have the same determined so that they can erect a fence to guard their homes. They approached the 1st Respondent who nullified the previous subsequently survey by went the to a private site, surveyor together with and the government surveyor and determined the boundary. The Applicant is therefore estopped from turning around to claim that the determination by the Land Registrar and the Government Surveyor, in the presence of all parties and witnesses, was irrational and unreasonable. The Applicant speaks from both sides of his mouth when he indicates that the boundary had disappeared after a long while of being away, and again turns around to say that the decision of the Land Registrar altered a boundary that KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 21

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had existed for over 20 years. This Court finds that the determination by the Land Registrar was rational and made in accordance with the law. 28. Thus, this Court is of the view that the order for certiorari has no merit. The decision sought to be quashed was made regularly and in accordance with the laid down procedure. The Applicant has not demonstrated to the required standard, why the said decision should be quashed. 29. The applicant sought an order of mandamus to remove and reinstate the original boundaries existing before the decision of 3rd November 2025. This prayer in itself is an invitation for this Court to participate in an illegality. 30. Reinstating the previous boundary means reinstating a boundary that was decided by a private surveyor and which, pursuant to the report filed by the Land Registrar, encroached on the land of the 1st Interested Party. The law as stated herein above is clear that the Land Registrar is clothed with the jurisdiction to determine boundary disputes. Upholding any contrary position is an illegality to KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 22

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which this Court refuses to be a party of. This prayer is not merited. 31. On the order of prohibition to bar the Land Registrar from blocking the Applicant’s access road, based on the report filed by the Land Registrar, it was indicated that instead of the 0.74 hectares recorded on the map, the total ground measurement was 0.979 hectares. Due to the variance, the difference was distributed proportionately between the parties thereby updating their portions upwards. Further, it was observed that the access road that the Applicant wants this Court to uphold, in fact, encroaches on the 1st Interested Party’s land. 32. Directing the Land Registrar to give effect to that access road is directing them to enforce an illegality. Further, having looked at the map filed by the Land Registrar and considered the report filed, this Court notes that the Applicant’s land abuts a public road which gives the Applicant direct access to his property. The prayer for prohibition also fails. 33. Accordingly. I find the application unmeritorious and hereby make the following final orders: KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 23

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i. The Application dated 3rd December 2025 is dismissed. ii. 34. The Applicant to bear the costs of the Application. It is so ordered. Dated and Delivered at Kapsabet this 23rd September 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. M/s Nanungi learned counsel for the applicant. 2. The 2nd interested party in person. 3. Walter Kipkorir, court assistant. KAPSABET ELCL JR NO. E004 OF 2025 JUDGMENT 24

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