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ELCPartially AllowedELC Suit (consolidated; interlocutory applications in consolidated suit, Kajiado ELC)· [2014] KEELC 540 (KLR)

Maton Ene Masea & another v Dickson Yiaile Sitei & 3 others [2014] KEELC 540 (KLR)

Environment and Land Court
2 May 2014
MGMARY M. GITUMBI
1,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In boundary disputes over registered Kenyan land, the Land Registrar must fix the boundaries before any court can hear the case.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court (Mary M. Gitumbi, J) dealt with two competing applications in a consolidated land dispute over parcels in Kajiado/Ewuaso-Kedong. The Plaintiffs, joint registered proprietors of parcel 1983, sought a temporary injunction restraining the Defendants from trespassing, alleging the Defendants had attempted to carve out part of their land since 2008. The Defendants denied trespass, asserting ownership of parcel 1421 under their deceased father, and alleged the Plaintiffs' title was obtained by fraud or mistake without a ground survey. The 2nd Defendant sought orders directing the District Land Surveyor and District Land Registrar, Ngong, to visit and determine the boundaries of nine parcels, with the order extending to seven consolidated suits. Applying Giella v Cassman Brown and the definition of a prima facie case in MRAO v First American Bank, the court found the core dispute was one of boundary and physical location of registered land, which under Section 18(2) of the Land Registration Act must first be determined by the Registrar. The Plaintiffs therefore failed to establish a prima facie case with probability of success, and their application was dismissed with no order as to costs. The Defendant's Application was allowed, with the survey and boundary identification exercise to be completed and a report filed in court within 90 days, applying to the consolidated suits ELC No. 846/13 through 852/13.

Key legal issues

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01

Whether the Plaintiffs made out a prima facie case for a temporary injunction

Holding

No - the dispute is one of boundary/situation of registered land, which must first go to the Registrar under Section 18 of the Land Registration Act, so the Plaintiffs lacked a prima facie case with probability of success

Reasoning

The court identified the real dispute as the physical location of parcel 1421 vis-à-vis the Plaintiffs' parcels. Section 18(2) bars court proceedings on boundaries of registered land unless determined under that section first. On the Giella v Cassman Brown test, failing the first limb, the court did not consider irreparable harm or balance of convenience, citing Kenya Commercial Finance Co. Ltd v Afraha Education Society on the sequential approach.

p. 3
02

Whether the boundaries of the nine parcels should be determined by the District Land Surveyor and District Land Registrar

Holding

Yes - the Defendant's Application for a boundary determination by the Surveyor and Registrar was allowed, with the report to be filed in court within 90 days

Reasoning

The court held the Registrar is the proper determinant of boundary and situation disputes over registered land where boundaries have not been fixed. The matter was therefore placed in the hands of the District Land Surveyor and District Land Registrar for identification of the physical location of the parcels and filing of a report, applying to the seven consolidated suits.

p. 3

Legal principles established

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  • A court shall not entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with Section 18 of the Land Registration Act
  • In boundary and situation disputes concerning registered land, the Registrar is the determinant of such a dispute
  • The Giella v Cassman Brown conditions are applied sequentially; failure of the first (prima facie case) disposes of the application

Court orders

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  1. 1.Plaintiff's Notice of Motion dated 10th July 2013 dismissed with no order as to costs
  2. 2.Defendant's Notice of Motion dated 13th September 2013 allowed - the District Land Surveyor Ngong and District Land Registrar Ngong to visit the nine listed parcels and determine their boundaries and file a report in court
  3. 3.The survey/boundary determination exercise to apply to cases ELC No. 846/13 through ELC No. 852/13
  4. 4.The boundary identification exercise to be completed within 90 days from the date of the judgment

Authorities

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Legislation

  • Land Registration ActSections 18(2) and 18(3), and reference to section 19(3)
  • Survey ActCap. 299

Cases cited (3)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to registered land; Land Registration Act, Section 18(2)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maton Ene Masea & another v Dickson Yiaile Sitei & 3 others [2014] KEELC 540 (KLR)", Case Analysis (2014). ELC Suit (consolidated; interlocutory applications in consolidated suit, Kajiado ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/540/eng@2014-05-02

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