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Mwanahawa Anyona Chitayi & Joel Nambande Chitayi v. Musa Ndaliro Muchelule

(2016) JELR 98744 (CA)

Court of Appeal  •  Civil Appeal 35 of 2015  •  7 Oct 2016  •  Kenya

Coram
Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Judgement

JUDGMENT OF THE COURT

1. This second appeal raises the question whether the lower courts had jurisdiction over a boundary dispute relating to land registered under the repealed Registered Land Act.

Background

2. On 13th October 2005, the respondent filed civil suit number 136 of 2005, before the Senior ResidentMagistrate’s Court at Butere. He pleaded that he was the registered proprietor of the property known as Title Number S/Wanga/Lureko/2712 measuring 3.05 Ha; that the appellants uprooted boundary markings between his said property and a property known as S/Wanga/Lureko/172; and that the appellants had encroached and trespassed upon his said property. He accordingly prayed for an order of eviction and an order directing the surveyor to resurvey the suit land.

3. In their defence, the appellants, who are mother and son, contested the respondent’s claim. They asserted that the respondent “purchased a piece of land next to [theirs]... and did not disclose...that he was also to occupy [the…

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