Odundo v Land Registrar

5. When the application came up before me, I directed that it be canvassed by way of written submissions and I allocated each party time within which to le and serve. The Respondent complied. The Applicant did not le any written submissions, notwithstanding that time was granted to him for that purpose and notwithstanding that the application is his own. The Court has therefore had the benet of submissions from one side only. That failure does not, however, entitle the Court to enter what would in eect be a default judgment on the motion. The Applicant’s case remains on the record in his Notice of Motion, in the grounds on its face and in the two supporting adavits and their annextures, and I have considered all of that material on its merits, as I am obliged to do. The Applicant’s case 6. The Applicant deposes that he purchased land parcel Kisumu/Kogony/7357 in the year 2019 and was duly registered as its absolute proprietor, a title deed having issued to him on 27th June 2019. The suit parcel is a resultant portion of the original parcel Kisumu/Kogony/4000, and it shares a common boundary with parcel Kisumu/Kogony/5342, which is registered to one Bennadus Okello Wakanga. 7. It is his case that upon moving to take quiet possession he found that the proprietor of parcel 5342 had encroached onto his parcel and had erected a structure thereon. He accordingly lodged a boundary dispute with the Respondent and boundary dispute summons dated 14th October 2021 issued. A ground exercise was conducted on 10th November 2021 but no report was released to him. He was constrained to move the Principal Magistrate’s Court at Winam in ELC Miscellaneous Application No. E006 of 2023 to compel the Respondent to release a report. 8. A fresh boundary exercise was thereafter conducted and the Respondent, Mr. Nicholas A. Obiero, rendered a boundary determination report dated 14th May 2024. By that report the Respondent determined that the existing boundary, marked on the ground by a barbed wire fence, live hedges, old line hedges and cactus, was the true and correct boundary between parcels 7357 and 5342; he directed the parties to respect that boundary, directed that the registry map be amended in respect of the two properties to conform with the ground, and notied the parties of a right of appeal within thirty days. 9. The Applicant deposes that he was immediately dissatised and that his then advocates advised him to engage a surveyor to establish the position on the ground. A survey was carried out on 5th February 2025 in respect of parcels 7357, 7356 and 5342 and a report was rendered by Mr. David M. Kangi, Principal Land Surveyor, for the Surveyor in Charge, Kisumu Regional Survey Oce. That report records that the exercise was undertaken on the authority of the Respondent’s own report of 14th May 2024, and that its purpose was to re-survey parcel 7357 and amend the registry index map. 10. The survey report concludes that the existing boundaries of parcels 7357 and 7356 have been encroached upon by the proprietor of parcel 5342 to the extent of 0.018 ha, of which 0.013 ha aects the Applicant’s parcel; that the amendment orders contained in the Respondent’s report could not be implemented while the encroachment subsisted; that the aected proprietors ought to seek legal intervention to address the encroachment; and that the parcels require xation. 11. The Applicant deposes that his former advocates then advised him to institute a primary suit, and that a plaint was led at the Principal Magistrate’s Court at Winam in ELC No. E055 of 2025 against the proprietor of parcel 5342 seeking a permanent injunction, a declaration, mesne prots, damages and eviction. That suit proceeded to a partial hearing on 28th May 2026 and was adjourned to 25th June 2026. 12. It is deposed that it was only on consulting his present advocates that the Applicant learned that the correct course had been a statutory appeal to this Court within thirty days of the Respondent’s https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5974/eng@2026-09-30 2

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determination, and that the primary suit was procedurally misconceived. He instructed the withdrawal of the Winam suit on 25th June 2026, terminated the services of his former counsel, and formally instructed M/s Otieno & Achieng Advocates on 13th July 2026, the delay in doing so having been occasioned by his need to raise the deposit and ling fees. The present motion was led three days later. 13. The Applicant contends, in substance, that the delay was occasioned wholly by the mistaken advice of his former advocate; that a blameless litigant ought not to be disinherited of his land on account of the procedural error of his counsel; that the intended appeal is arguable and raises questions of jurisdiction; and that unless time is extended he stands to suer irreparable loss and the intended appeal will be rendered nugatory. 14. The draft Memorandum of Appeal annexed as "JO-9" advances four grounds: that the Respondent misinterpreted and misapplied his powers under section 18 of the Land Registration Act, 2012; that he acted ultra vires and committed a fatal procedural illegality by xing the boundary on the description of a physical "cactus line" without producing or relying on an authenticated technical report from a licensed surveyor, contrary to regulation 40 of the Land Registration (General) Regulations, 2017; that he exceeded his jurisdiction by receiving evidence of and pronouncing upon the neighbour’s "long stay", thereby purporting to determine a question of adverse possession reserved for this Court; and that he ignored the Applicant’s registered proprietorship. The Respondent’s case 15. The Respondent’s answer, taken from the Grounds of Opposition and the written submissions together, may be summarised as follows. 16. First, that the motion is incompetent, misconceived, frivolous, vexatious and an abuse of the process of the Court, in that it seeks to challenge a decision rendered approximately two years earlier without lawful or sucient justication, and is calculated to defeat and circumvent the mandatory thirty-day period prescribed by regulation 40(6) of the Land Registration (General) Regulations, 2017. The statutory period, it is said, lapsed in June 2024 and the Applicant did not move the Court until July 2026. Reliance is placed on Musya (Suing as Legal Representative of the Estate of John Musya Musili) v Deputy County Commissioner Mumoni Sub-County & 4 others; Musili (Interested Party) [2024] KEELC 3429 (KLR), for the proposition that extension of time is not a right but a discretionary power grounded in equity, and that an applicant must lay a basis showing that he was not at fault in allowing time to lapse. 17. Secondly, that the Applicant’s attempt to shift blame entirely onto his former counsel cannot avail him; that while a mistake of counsel may excuse a brief delay, it cannot cover gross negligence or inaction exceeding some seven hundred days; and that the Applicant failed to demonstrate due diligence in monitoring his own legal aairs over a period of two years. 18. Thirdly, that the Respondent acted strictly within the mandates conferred by sections 18 and 19 of the Land Registration Act, 2012 and complied with regulation 40, including consideration of the relevant survey records and technical recommendations; that the process was fully participatory and the Applicant participated throughout; and that the Applicant has not demonstrated that the proceedings were conducted in excess of jurisdiction, in breach of natural justice or in violation of the Act or the Regulations. Reliance is placed on Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others [2020] eKLR, for the proposition that where the location of a boundary is in dispute it is the Land Registrar who has authority to determine and x it, and that a private survey report cannot replace or override a determination made through the statutory process. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5974/eng@2026-09-30 3

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19. Fourthly, that the intended appeal discloses no substantial question of law or fact; that granting leave at this stage would undermine the nality of administrative decisions in land administration and render regulation 40(6) ineective; and that neighbouring landowners and third parties have already acted upon the boundaries as determined on 14th May 2024, so that reopening the matter would occasion them substantial prejudice. 20. The Respondent accordingly prays that the motion be dismissed with costs. Issues for determination 21. Having considered the Notice of Motion, the supporting adavits and annextures, the Grounds of Opposition and the Respondent’s written submissions, I take the view that the following issues arise for determination: (i) Whether this Court has power to extend the time prescribed by regulation 40(6) of the Land Registration (General) Regulations, 2017; (ii) Whether the Applicant has laid a sucient basis for the exercise of that discretion in his favour; and (iii) What orders ought to issue, and who should bear the costs of the application. Analysis and determination (i) Whether the Court has power to extend time 22. It is convenient to begin with the statutory setting, because both parties have to some extent misdescribed it. 23. Section 18(1) of the Land Registration Act, 2012 provides that, except where it is noted in the register in accordance with section 20 that the boundaries of a parcel have been xed, the cadastral map and any led plan are deemed to indicate the approximate boundaries and the approximate situation only of the parcel. Section 18(2) precludes a court from entertaining any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in section 19. Section 19 confers upon the Registrar the power, on the application of an interested party, to determine and indicate the position of an uncertain or disputed boundary after giving the parties an opportunity of being heard. 24. The procedure is elaborated by regulation 40 of the Land Registration (General) Regulations, 2017. Regulation 40(4) provides that in determining a boundary dispute the Registrar "shall be guided by the recommendation of the oce responsible for survey of land". Regulation 40(5) requires the Registrar, after aording all persons appearing an opportunity to be heard, to make a determination and inform the parties. Regulation 40(6) then provides: “ Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notication, appeal the decision to the Court." 25. Regulation 40(7) provides that upon the expiry of the thirty days the Registrar shall cause the precise position of the boundaries to be dened by survey, le an approved plan containing the necessary particulars, and make a note in the register that the boundaries have been xed, whereupon the plan is deemed to dene the boundaries accurately. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5974/eng@2026-09-30 4

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26. Two observations follow. The rst is that the right of appeal invoked in this matter is conferred by regulation 40(6), and not by section 86 of the Land Registration Act. Section 86 is headed "Review of the decision of the Registrar" and provides for the statement of a case for the opinion of the Court where a question arises as to the exercise of a power or the performance of a duty by the Registrar. It prescribes no thirty-day period. The Respondent’s determination of 14th May 2024 is therefore inaccurate insofar as it advises the parties of a right of appeal "under section 86 of the Land Registration Act within 30 days", and the Applicant’s motion is likewise inaccurate in citing that provision. The second observation is that the motion’s reference to "section 75G of the Civil Procedure Rules" and to "section 19 of the Land Act 2012" are plainly erroneous; what was intended, I apprehend, was section 79G of the Civil Procedure Act and section 19 of the Land Registration Act. Neither error is fatal. It is settled that a court will not defeat a substantive right on the strength of a misdescription of the enabling provision where the jurisdiction to grant the relief sought in fact exists, and Article 159(2)(d) of the Constitution requires that justice be administered without undue regard to procedural technicalities. 27. Does the jurisdiction exist? Regulation 40(6) is silent as to extension. The Respondent has not contended that this Court is powerless to extend time; ground 4 of the Grounds of Opposition accepts that the Court exercises appellate jurisdiction over decisions of the Registrar in boundary disputes, and asks only that the jurisdiction be invoked strictly in accordance with the prescribed procedure and timelines. The Respondent’s own reliance on the principles governing the exercise of discretion to extend time presupposes that the discretion exists. 28. In my view it plainly does. The thirty-day period in regulation 40(6) is a procedural time limit created by subsidiary legislation. It is not a limitation of action of the kind imposed by the Limitation of Actions Act, which extinguishes a right. Where Parliament intends a period to be absolute and incapable of enlargement it says so in terms. Nothing in the Land Registration Act or in the Regulations excludes the Court’s ordinary power to enlarge time, and this Court, exercising the jurisdiction conferred by section 13 of the Environment and Land Court Act, 2011 and applying sections 1A, 1B and 3A of the Civil Procedure Act together with Article 159(2)(d) of the Constitution, retains a discretion to extend the time within which an appeal under regulation 40(6) may be lodged. I so hold. 29. That discretion is, of course, judicial. It is not exercised at large or as a matter of sympathy, and it is not a licence to disregard time limits that the legislature has thought t to impose. (ii) Whether a sucient basis has been laid 30. The principles are settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court identied the considerations that guide the exercise of the discretion. They may be summarised as follows: extension of time is not a right of a party but an equitable remedy available only to a deserving applicant at the discretion of the court; the applicant bears the burden of laying a basis to the satisfaction of the court; whether the discretion should be exercised is a matter to be considered on a case-by-case basis; the delay should be explained to the satisfaction of the court; where the delay is inordinate, a reasonable explanation must be advanced; whether the respondent will suer prejudice if the extension is granted; whether the application has been brought without undue delay once the need for it was appreciated; and, in appropriate cases, whether public interest considerations arise. To the same eect is Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, where the Court of Appeal identied the length of the delay, the reason for it, the chances of the intended appeal succeeding, and the degree of prejudice to the respondent, as the relevant considerations. 31. I apply those principles to the material before me. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5974/eng@2026-09-30 5

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32. As to the length of the delay, it is substantial and I do not minimise it. The determination was rendered on 14th May 2024. The thirty days allowed by regulation 40(6) expired in or about mid-June 2024. This motion was led on or about 16th July 2026, some two years and one month after the expiry of the statutory period. Standing alone, a delay of that order is inordinate, and the Respondent is right to say so. 33. But length of delay is not the end of the enquiry; it is the beginning of it. The question the authorities pose is not merely how long the delay was, but whether it has been explained. A delay of two years that is fully accounted for may be excused, while a delay of two months that is wholly unexplained may not. 34. The chronology deposed to, and substantially borne out by the annextures, is this. Within months of the impugned determination the Applicant had procured an ocial re-survey of the aected parcels; the report of that exercise, dated 5th February 2025, was prepared by the Kisumu Regional Survey Oce on the express authority of the Respondent’s own report. In November 2025 he instituted proceedings in the Principal Magistrate’s Court at Winam. That suit was prosecuted to a partial hearing on 28th May 2026. On discovering, on the advice of new counsel, that the suit was misconceived, he instructed its withdrawal on 25th June 2026, instructed his present advocates on 13th July 2026, and led this motion three days later. 35. That is not the chronology of an indolent litigant. It is the chronology of a litigant who was, throughout the period complained of, actively and continuously agitating the very grievance he now seeks to bring before this Court, but who was doing so by the wrong vehicle and in the wrong forum. The Respondent’s submission that the Applicant "failed to demonstrate due diligence in monitoring their own legal matters" does not t the facts. Whatever else may be said of him, the Applicant did not sit on his rights; he pursued them mistakenly. 36. That distinction matters. In Salat case itself, the Supreme Court had regard to the fact that the applicant there had been misguided as to the law and had gone to the wrong forum, but had come to the correct forum immediately upon realising his error. The same may be said here, and with some force: three days elapsed between the instruction of competent counsel and the ling of this motion, and twentyone days between the withdrawal of the misconceived suit and that ling. 37. The Applicant attributes his error to the advice of his former advocate. The principle that the mistakes of counsel ought not, without more, to be visited upon an innocent litigant is of long standing in this jurisdiction. In Belinda Murai & 9 others v Amos Wainaina [1979] eKLR, Madan JA observed that a mistake is a mistake, and is no less pardonable because it is one made by an advocate. In Philip Chemwolo & another v Augustine Kubede [1982-88] 1 KAR 1036, the Court of Appeal held that blunders will continue to be made and that a litigant ought not, if it can be avoided, to be shut out from the seat of judgment on account of them. The principle was restated in Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] eKLR. 38. The Respondent is nonetheless right to caution that the principle is not a general amnesty. It does not clothe a litigant with immunity from every consequence of his advocate’s conduct, and it will not assist a litigant who was himself supine or who invokes it as a formula rather than as an explanation. Two qualications must therefore be entered against the Applicant. 39. The rst is evidentiary. No adavit has been led by the former advocate, and no explanation is oered for that omission. The account of the advice given is the Applicant’s own, and while he is competent to depose to advice he personally received, the Court would ordinarily expect the advocate said to have erred to be given the opportunity to conrm or contradict the account. The second is that not every part of the two-year period is equally well accounted for. The interval between May 2024 and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5974/eng@2026-09-30 6

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February 2025, and again between February 2025 and the ling of the Winam suit in November 2025, is explained only at the level of generality. The explanation is adequate; it is not full. 40. I turn to the arguability of the intended appeal. On an application of this nature the Court does not, and must not, determine the intended appeal. The enquiry is conned to whether the draft grounds raise questions that are not frivolous. An arguable ground is not one that must succeed; it is one that merits argument. 41. Applying that threshold, I am satised that it is met. Ground 2 of the draft memorandum complains that the boundary was xed by reference to physical features without an authenticated technical report from the oce responsible for survey. Regulation 40(4) requires in terms that the Registrar be guided by the recommendation of that oce. Whether the impugned determination satised that requirement is, on the face of the report, a question t for argument: the reasoning recorded in the determination rests substantially on the observed physical features and on the oral accounts of the respondent before the Registrar and two long-resident neighbours. Ground 3 complains that the Registrar, in resting his determination upon decades of undisturbed occupation, strayed into territory reserved to this Court. That too is arguable. 42. The Respondent’s reliance on Estate Sonrisa Ltd case is well placed as a statement of principle: it is the Land Registrar, and not a private surveyor, who is charged with determining and xing a disputed boundary, and a private survey report cannot displace a determination lawfully made under the statutory process. But the proposition does not answer the present facts as squarely as the Respondent supposes. The report relied upon by the Applicant is not a private survey report. It is a report of the Kisumu Regional Survey Oce, prepared by a Principal Land Surveyor, undertaken on the authority of the Respondent’s own determination and for the express purpose of giving eect to it. It records an encroachment of 0.018 ha, of which 0.013 ha aects the Applicant’s parcel, and it concludes that the amendment orders in the Respondent’s report could not be implemented while that encroachment subsisted. Whether that document is properly to be regarded as the recommendation of the oce responsible for survey within the meaning of regulation 40(4), and what consequences follow, are questions for the appeal. For present purposes it suces to say that they are not frivolous questions. 43. As to prejudice, the Respondent asserts that neighbouring landowners and third parties have already acted upon the boundaries as determined. No evidence whatever is oered in support of that assertion, and the material on the record tends the other way. The second limb of the Respondent’s own orders that the map be amended to conform with the ground has not been shown to have been implemented; on the contrary, the survey oce reported in February 2025 that it could not be implemented. Nor is there any evidence that a note has been made in the register under regulation 40(7)(c) that the boundaries have been xed. The appeal to nality is therefore, on this record, an appeal to a nality that has not in fact been achieved. 44. Weighed against that, the prejudice to the Applicant if leave is refused is severe and irremediable. He would be shut out permanently, and without any judicial consideration of his complaint, from challenging a determination which the survey oce has reported to be incapable of implementation. The Respondent, a public ocer, suers no prejudice that an award of costs cannot meet. 45. One further matter requires mention, although neither party has raised it. The person with the real and immediate interest in the boundary between parcels 7357 and 5342 is Bennadus Okello Wakanga, the registered proprietor of parcel 5342. He was a party to the proceedings before the Respondent. He is not before this Court, and no appeal touching that boundary can properly be heard in his absence. Any leave granted must be conditioned upon his joinder and service. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5974/eng@2026-09-30 7

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46. Drawing the threads together: the delay is long and its explanation is not complete, but it is a delay during which the Applicant was continuously and openly agitating the same grievance in a forum which he had been wrongly advised was the correct one; he moved to this Court with promptness once properly advised; the intended appeal raises grounds that are t for argument; the nality relied upon by the Respondent has not on this record been achieved; and the balance of prejudice inclines decidedly in the Applicant’s favour. Bearing in mind that the discretion is to be exercised so as to advance the overriding objective of the just determination of proceedings, I am persuaded that this is a proper case in which to extend time, but on terms. (iii) Costs 47. In respect to costs and having considered the circumstances herein, the appropriate order is that each party bears own costs. Disposition 48. In the result, and for the reasons set out above, the Notice of Motion dated 16th July 2026 is allowed in the following terms; i. Leave is granted to the Applicant to le an appeal out of time against the boundary determination of the Land Registrar, Kisumu, dated 14th May 2024. ii. The Memorandum of Appeal in the terms of the draft annexed to the application as "JO-9" shall be led within fourteen (14) days of the date hereof, upon payment of the requisite court fees. iii. Bennadus Okello Wakanga, the registered proprietor of land parcel Kisumu/Kogony/5342, shall be joined as a party to the intended appeal, and the Memorandum of Appeal shall be served upon him and upon the Respondent within seven (7) days of ling. iv. In default of compliance with orders (ii) and (iii) above, the leave hereby granted shall lapse and this application shall stand dismissed, without further order of the Court. v. Each party to bear own costs. vi. This le is marked as closed. It is so ordered. DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF SEPTEMBER 2026. E. K. WABWOTO JUDGE In the presence of:Ms. Otieno for the Applicant Ms. Omodi for the Respondent Court Assistant: Joanne Omondi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5974/eng@2026-09-30 8

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