Francis Githae Nderi v Simon Wanjohi Wachira & another [2014] KEHC 7515 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL CASE NO. 11 OF 2008(O.S)

FRANCIS GITHAE NDERI.....................................APPLICANT

VERSUS

SIMON WANJOHI WACHIRA.....................1ST RESPONDENT

AGNES WANJIKU WACHIRA....................2ND RESPONDENT

RULING

The subject matter of this ruling is the Originating Summons dated 1st February 2008 taken out by FRANCIS GITHAE NDERI, hereinafter referred to as the Applicant, in which he sought for the following orders:

THAT the honourable court be pleased to authorise and order the land registrar- Nyeri to amend or cause to be amended the registry index map over parcels No.Tetu/Muthuaini/654 and Tetu/Muthuaini/310 to give effect to his ruling of 25th March 2006 by way of noting the boundary and placement of appropriate Brace for parcel No.Tetu/Muthuaini/654.

THAT the costs of this application and those before the land registrar Nyeri be borne and paid by the Respondents.

The applicant swore an affidavit he filed in support of the Originating Summons.  The applicant named Simon Wanjohi Wachira and Agnes Wanjiku Wachira as the Respondents.  The Respondents secured the affidavit of Ignatius Gitonga Gitari together with two of Simon Wanjohi Wachira to oppose the summons.  When the summons came up for hearing learned counsels appearing in the matter recorded a consent order to have the same disposed of by affidavit evidence and by written submissions.

I have considered the grounds set on the face of the summons plus the facts deponed in the affidavits filed in support and against the summons.  I have further taken into account the rival written submissions.  As it can be gleaned from the pleadings and averments in the affidavits, it is not in dispute that the Applicant, is the registered proprietor of L.R.No.Tetu/Muthuaini/310.  There is also no dispute that the Respondents filed Nyeri H.C.C.C No.53 of 2004 against the applicant over the boundary dispute between the two pieces of land.  That suit was later dismissed.  The Respondent then lodged a boundary complaint with the District Land Registrar, Nyeri.  The Land Registrar heard the evidence of both sides and came to the conclusion that the portion in dispute belongs to the Applicant herein, hence the map should be amended to reflect the actual position on the ground.  The District Land Registrar directed the Applicant to seek for orders from a court of law to have the map amended to reflect the ground he has been using since the time of demarcation without any dispute.  The applicant has now accused the Respondents of avoiding the truth and taking undue advantage of the mix-up or errors in the Registry Index Maps to rob him of almost one acre (1)of his land.  The applicant is now before this court seeking for an order authorizing the District Land Registrar, Nyeri to amend or cause to be amended the Registry Index Map (R.I.M) over parcels no. Tetu/Muthuani/654 and Tetu/Muthuani/310 thus giving effect the District Registrar's decision of 25/03/06, since no appeal has been filed.  The Respondents opposed the summons claiming that the Land Registrar when conducting the proceedings was exercising quasi judicial authority and his decision therefore is not executable in the manner proposed.  It is argued that the Land Registrar acted ultra-vires his jurisdiction of determining boundary disputes when he awarded the applicant their land.  The Respondents alluded that the claim was a land dispute and not a boundary dispute.  The Respondents averred that they were not made aware of the delivery of the Land Registrar's decision and that is why they have not challenged it.  The Respondents further argued that the land registrar's decision if implemented would see them part with about one acre (1) and the land registrar does not have such power.  It is the submission of Mr. Karweru, learned advocate for the applicant that under Sections 19 and 22of theRegistered Land Act that this court can direct the land registrar to amend the R.I.M over the two parcels of land and to import a brace on to L.R.no.Tetu/Muthuani/654 to concur with the ground positioning of the parcels involved.  Mr. Wachira, learned advocate for the Respondents is of the view that this court's jurisdiction has been wrongly invoked.  It is argued that when determining any dispute under Sections 19 and 22 of the Registered Land Act the Land Registrar's decision is final and any dissatisfied party can take out judicial review proceedings to quash the Land Registrar's decision.

After anxiously considering the rival submissions, I have formed the following view of the matter.  The party who has taken out the Originating Summons was a successfull party before the land registrar.  It is admitted by the Respondent that they have not appealed against the decision of the land registrar because they were not notified of the decision.  It is clear from the provisions of Section 19(1) of the Registered Land Act that the Land Registrar may require or direct the Director of Surveys to correct the line or position of any boundary shown on the registry map thus in essence corrects the Registry Index Map (R.I.M).  With respect, I agree with the submissions of Mr. Wachira that the jurisdiction of this court is improperly invoked hence this suit is misconceived.

Even assuming that there was a competent suit before this court, it would appear the applicant will not succeed on the merits.  It is not contested that the effect of the Land Registrar's decision was to award the applicant about ½ an acre of land.  The land registrar, no doubt, has jurisdiction to entertain and determine a dispute over boundaries but he has no jurisdiction to increase or decrease the size of any land.

In the end, I find the Originating Summons to be incompetent and unmeritorious.  The same is ordered struck out and dismissed with costs to the Respondents.

Dated, Signed and delivered in open court this 21st day of February, 2014.

…...................

J.K.SERGON

JUDGE

In the presence of:

Mrs. Kahiga holding brief for Mr. Kebuka Wachira for the Respondent

N/A for Karweru for Applicant with Notice-