Thousands of pending boundary disputes

Thousands of boundary disputes clog land registries countrywide. They remain unresolved for years due to limitations in resources, uncompromising parties or a clogged office calendar. Boundary disputes humble even the most educated and well endowed. I too have had related challenges with my parents arguing that I was not putting my foot down firmly enough where boundary misunderstandings with neighbours arose. But how could I, knowing so well what the cardinal requirements are? How could I knowing so well what would save them time and money, and ensure that they coexisted happily with the neighbours?

The matter of resolving boundary disputes has been at the centre of public interventions by the Land Development and Governance Institute. And while handling the module, I have got to appreciate that most landowners could have avoided them had they understood some basics. I therefore use today’s moment to share some of the fundamentals that will give us an insight on how to best navigate them should they arise.

Why disputes occur

Boundary disputes could occur where there is loss of memory of the boundary position in situations where owners aren’t in occupation, or where boundary features or beacons get lost through destruction or natural reasons. Boundary disputes may also occur where maps are tampered with or where there are deliberate or inadvertent errors during survey. They can also occur where newly settled landowners, particularly those who purchase property, decide to erect boundary marks or fences without consultation with their neighbours.

Types of boundaries

Our current law recognizes two types of boundaries, a “fixed” and a “general” boundary. The pertinent sections of the Land Registration Act specifically provide that unless the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and approximate situation only of the parcel. This simple provision means a lot. Furthermore, many of the cadastral maps that support title deeds derived from most adjudication initiatives around the country, which generated “general” boundaries, carry a disclaimer reading that “this map is not an authority on boundaries”. More on this below!

Fixed boundaries

The fixed and general boundaries are quite different, and are established differently. What’s the distinct difference? Fixed boundaries are defined by mathematical coordinates of the property corner points. They are established by qualified surveyors, licensed and recognized under the Survey Act, through precise survey measurements. One may have seen such surveyors using modern equipment to establish property boundaries by setting applicable directions and distances to each. The plans so produced have the details of bearings and distances for every boundary, and a set of coordinates for every property corner, indicated. Therefore, where such boundaries get lost for whatever reason, a qualified surveyor is able to re-establish their positions unambiguously. Such boundaries are usually used to define high value urban properties. They were also exclusively used to define the boundaries to the settler farms appropriated during colonial Kenya. Surveys for these kinds of boundaries are rigorous and comparatively expensive.

General boundaries

On the other hand, general boundaries are bound by physical features of undefined width such as walls, fences, hedges, furrows, rivers or roads. Cadastral maps in support of such boundaries are basically an index showing the relative positions of the parcels. They are usually derived from photography or field survey sheets produced during the adjudication of rights. The associated surveys are simple and rapid. Unlike with fixed boundaries, no mathematical coordinates exist to guide the re-establishment of boundaries if lost. The underlying assumption behind such boundaries is that the physical boundary features must be well maintained so that they do not get lost. For these types of boundaries, good maintenance is like the “password” to avoiding disputes. Establishing general boundaries is comparatively much faster and cheaper. This is why they are used during the mass titling of most parts of Kenya.

Where lost or disputed, the Land Registration Act requires that the land registrar helps to determine the positions of boundaries. For the general boundaries, the registrar will largely use the evidence of witnesses to determine where the boundary was. It’s mainly anecdotal. For fixed boundaries, the registrar, and even courts, will depend on the evidence of a competent surveyor, guided by standards defined in the Survey Act, to re-establish the boundaries from coordinates by setting the applicable bearings and distances. Where dissatisfied, parties may go to court.

Maintaining boundaries is most advisable

For general boundary disputes, which are prevalent in Kenya, it is advisable for parties to discuss and agree, preferably with support of sincere witnesses and the local administrator. For reasons explained above, calling in the registrar, even if he comes with a surveyor, provides no magic bullet. The scale and accuracy of the supporting index maps doesn’t make them effective tools for dispute resolution. That is why they carry a disclaimer! For the same reasons, it never gets any better in court. Maintaining boundaries, and resolving any disputes through restrained discussion, helps to save time and costs. It also ensures peaceful coexistence. It is the way to go.

Dated 13^th October, 2018