Lawrence Nyambura Kairu v Moses Kinyuru Gathogu [2017] KEELC 942 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

ELCA NO. 30 OF 2015

(Formerly  NYERI HCCC 110 OF 2008)

LAWRENCE NYAMBURA  KAIRU…......…...PLAINTIFF

-VERSUS-

MOSES KINYURU GATHOGU …………..DEFENDANT

RULING

1. The court of appeal on 3rd February, 2015 overturned the ruling of Ombwayo J delivered on 23rd September, 2014 where the Honourable Judge had ordered the Land Registrar to revisit the suit parcels in dispute and determine the boundaries according to acreage; Nyeri/Watuka/739 to measure 39 hectares and Nyeri Watuka 738 to measure 29 hectares.

2. In their judgment, the court of appeal observed that the Provincial Appeals Committee had directed the Land Registrar to visit the two parcels of land and settle the dispute between the parties which dispute was over the existing boundary. They also found that the order by the Provincial Appeals Committee did not direct the Land Registrar how to place the boundaries.

3. The Court of Appeal satisfied that Ombwayo J was wrong to interfere with the report by the Land Registrar in directing him how to draw the boundaries, ordered a different Land Registrar other than S.N. Mburu to visit the locus, determine the boundaries of the two parcels in dispute and file his report within 90 days.

4. Although the visit by the Land Registrar did not adhere to the timelines set by the court, it is on record that on 10th November, 2015 W. R. Ngaanyi (County Land Registrar, Nyeri) and his team visited the locus and filed a report on 9th March, 2016.  In his report, the Land Registrar explained the delay to have been occasioned by the Director, Land Adjudication and Settlement who failed to provide an authenticated copy of the development map and area list on time.

5. The Land Registrar recommended that the boundaries of the two parcels in dispute remain the same as currently are, since these boundaries had been regarded as correct for over 15 years and the respondent had been caught up by time under Section 7of the Limitation of Actions Act (Cap 22).  He further recommended that the Registry Index Map (RIM) be amended to tally with the Adjudication Diagram.

6. I have considered the affidavit sworn by the applicant on 26th April, 2016 and filed on an even date.  Although I agree with the applicant that the visit and report by the Land Registrar did not comply with the timelines set by the court, I am satisfied with the explanation given by the Land Registrar about what caused the delay, which explanation I find reasonable under the circumstances.  I also do not see what prejudice the respondent has suffered  as a result of the delay in visiting the locus and filing the report.

7. Having found the County Land Registrar, Nyeri to have complied with the orders of the court of Appeal,  I also find that this court has no jurisdiction to interfere with the report  by the Land Registrar and I adopt the report by the Land Registrar dated 9th March, 2016 and filed on 14th March, 2016. I direct the Land Registrar Nyeri to recall the titles for Nyeri/Watuka/738 and Nyeri/Watuka/739 for amendment of their respective acreages and also amend the Registry Index Map to tally with the Adjudication diagram.

Dated, signed and delivered in open court at Nyeri this 31st day of October, 2017.

L N WAITHAKA

JUDGE

In the presence of:

Mr. Kebuka Wachira for the appellant

Sion Kabungi Kinyuru – respondent

Court assistant - Esther