1.The Plaintiffs herein are the registered proprietors of LR No. West Mugirango/nyamaiya/1279 and their claim is founded on trespass allegedly committed against them by the Defendant since 7/5/2013. The latter is said to have trespassed on the suit land and started plucking tea and also have been involved in cutting trees therefrom. The Defendant denies all these allegations and states that he has always confined himself and his activities on his registered land LR No. West Mugirango/nyamaiya/3364 which borders that of the Plaintiffs and that that is where he has plucked tea and cut down trees. Later on 8th August 2016 the Defendant filed an Amended Defence and Counter-claim praying that the map be rectified to conform with the state and occupation on the ground. He alleges that the map is misleading and the boundary ought to be rectified on the map to suit the occupation on the group(sic).
2.On 17th September 2017 Justice Mutungi recorded the following consent order: -
3.which order was reiterated on 19th November 2018 with penal consequences on the Land Registrar, Nyamira. On 20th September 2021 this court issued an order that the Land Registrar, Nyamira files his report within 45 days as ordered earlier. Finally, it was filed on 23rd March 2022. The same is dated 10th March 2022. Attached to the report is County Surveyor’s Report dated 2nd March 2022 and filed in court on 23rd March 2022. The report reads as follows: -
4.Coming to the Surveyor’s Report dated 2nd March 2022 which the Land Registrar relied upon, the County Surveyor, Mr. Richard Bosire Ongeri concluded the same as follows: -
5.As this court has severally observed, following various precedents, the Land Registrar has the technical expertise that this court lacks in determining boundary disputes unless it is shown that there are other factors that influenced his report, the Land Registrar’s Report ought to be adopted by the court. In this particular case the County Surveyor has said in his Report mentioned above that the parcel number West Mugirango/nyamaiya/1284 has been sub-divided into West Mugirango/nyamaiya/3364 – 3366 which the Plaintiffs describe as “fraudulent and the same does not exist in the map as well as physically on site.” I would have expected the Plaintiffs to do an official search to show the exact official position. I would have equally expected them to provide the court with Green Cards and Official Searches of: -
- West Mugirango/nyamaiya/1279
- West Mugirango/nyamaiya/3364
- West Mugirango/nyamaiya/1284
- West Mugirango/nyamaiya/1285
6.These would have helped the court to ascertain the sub-divisions and their origin.
7.It is worth noting that the Plaintiffs in their Plaint never mentioned the Defendant’s Parcel Number and only termed him a trespasser. They didn’t indicate what the Defendant owns or from what direction he has trespassed their parcel of land. This is a matter that has been in court since 2013 and various orders of visiting the locus in quo have not been taken seriously. The exercise is now complete and I have no hesitation in adopting the Land Registrar’s Report dated 10th March 2022 incorporating the County Surveyor’s Report dated 2nd March 2022 and order that the parties do observe the boundaries that were conclusively fixed which the Land Registrar showed them on the ground.