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Court of AppealDismissedCivil Appeal No. 54 of 2018· [2020] KECA 762 (KLR)

Patrick Okeefe v Jonathan Savage [2020] KECA 762 (KLR)

Court of Appeal of Kenya
24 April 2020
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
2,066 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed land courts can hear boundary disputes before the Registrar fixes boundaries, and courts can swap in the correct owner instead of killing a case.

What this practically means

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Executive summary

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This is an appeal to the Court of Appeal at Malindi against a ruling of the Environment and Land Court (Olola, J.) delivered on 21 March 2018 in ELC No. 134 of 2017, in a long-running boundary dispute between Patrick Okeeff (appellant) and Jonathan Savage (respondent). The respondent, though the suit properties Kilifi/Jimba 1138 and 1139 were registered in the name of Digitel Communications Systems Ltd, sued for a permanent and interlocutory injunction alleging encroachment of about 62 metres. The appellant raised a preliminary objection on jurisdiction (section 18(2) of the Land Registration Act), locus standi, and affidavit defects. The trial judge overruled the objection, holding the boundaries had not been conclusively determined, the plaintiff lacked capacity, but the defect was curable by amendment of the plaint within 30 days, and that the affidavit defect was formal only. The Court of Appeal, in a single judgment of the court delivered by Musinga, Gatembu Kairu and Murgor, JJ.A., dismissed the appeal. It affirmed that where the Land Registrar has not fixed or conclusively determined boundaries, section 18(2) does not oust the court's jurisdiction; and it upheld the judge's discretionary invocation of order 1 rule 10(2) of the Civil Procedure Rules to substitute the real owner, applying Article 159(2)(d) on procedural technicalities. The decision below was affirmed in full, with costs to the respondent.

Key legal issues

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01

Whether section 18(2) of the Land Registration Act ousted the trial court's jurisdiction

Holding

It did not, because the boundaries had not been conclusively determined; the Land Registrar had only directed maintenance of the status quo pending court determination.

Reasoning

The record showed the dispute had been the subject of complaints to the Permanent Secretary, a site visit by the Public Complaints and Resolutions Committee, and a Land Registrar's direction maintaining status quo until the Ministry obtained a court order to correct the boundaries. Since the Registrar's process was inconclusive, the statutory bar in section 18(2) was not engaged, and the trial judge was entitled to find the court seized of jurisdiction.

p. 3
02

Whether the wrong plaintiff could be cured by amendment rather than striking out the suit

Holding

Yes. The trial judge properly exercised discretion under order 1 rule 10(2) to order amendment of the plaint to reflect the real owner, Digitel Communications Systems Ltd.

Reasoning

The parcels were admittedly owned by Digitel Communications Systems Ltd, not the respondent. The error was a basic mistake of law by the respondent's advocates, Ndichu Associates, correctable without prejudice to the appellant. Punishing the litigant for counsel's error would offend Article 159(2)(d), which requires justice be administered without undue regard to procedural technicalities.

p. 3

Legal principles established

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  • A court will not entertain a boundary dispute over registered land unless the boundaries have been determined (or fixed) in accordance with section 18 of the Land Registration Act; where the Land Registrar has not conclusively determined or fixed the boundaries, the ELC is not ousted of jurisdiction.
  • Where a suit is instituted in the name of the wrong party through a mistake attributable to advocates, the court may invoke order 1 rule 10(2) of the Civil Procedure Rules to order amendment/substitution rather than strike out the suit, in line with Article 159(2)(d).

Court orders

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  1. 1.The appeal was dismissed with costs to the respondent
  2. 2.The ruling of the Environment and Land Court (Olola, J.) overruling the preliminary objection and ordering amendment of the plaint was upheld

Authorities

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Legislation

  • Land Registration Actsection 18(1), 18(2), 18(3)
  • Land Registration Actsection 19(3)
  • Land Registration Actsection 20
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 162(1)(b)
  • Constitution of Kenya, 2010Article 165
  • Environment and Land Court Actsection 13(2)
  • Civil Procedure Rulesorder 1 rule 10(2)
  • Civil Procedure Rulesorder 19
  • Oaths and Statutory Declaration RulesRule 9
  • Survey ActCap. 299

Cases cited (4)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    [1969] E.A. 696
  • The Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Dawson (Bradford) Ltd & Others vs Dove & Another
    [1971] Q.B. 330
  • D.T. Dobie (K) Limited v Joseph Mbaria Muchina & Another
    [1982] KLR
On appeal from
Environment and Land Court of Kenya at Malindi
E.L.C. No. 134 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patrick Okeefe v Jonathan Savage [2020] KECA 762 (KLR)", Case Analysis (2020). Civil Appeal No. 54 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/762/eng@2020-04-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.