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ELCPartially AllowedELC, Kajiado - Originating Summons and Notice of Motion both dated 20th May 2014; 1st-3rd Respondents' Notice of Motion dated 16th June 2014 (Kajiado LDT Misc. No. 69 of 2011 referred)· [2015] KEELC 738 (KLR)

Parmuat Oloishorua Kore v Philip Santamo Wauntai & 7 others [2015] KEELC 738 (KLR)

Environment and Land Court
9 March 2015
LGL.N. Gacheru
4,605 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled it cannot decide land boundary disputes, sending the matter to the Lands Registrar instead.

What this practically means

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Executive summary

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The Applicant, registered owner of parcels KJD/OLCHORO-ONYORE/8767, 16463, 20463, 20464 and 20466, obtained ex-parte injunctive orders on 22nd May 2014 and sought interim mandatory and prohibitory injunctions to restrain the 1st-3rd Respondents from closing public roads, entering his parcels, and to stop the District Surveyor and Land Registrar from surveying or altering registers. He contended the Land Dispute Tribunal proceedings were a nullity since the Respondents' father died before they commenced, and the award was adopted as judgment without the earlier nullity order being set aside. The 1st-3rd Respondents, administrators of the deceased's estate, filed their own application seeking joinder of three police officers as interested parties, injunctions against trespass, production of the re-survey report, and removal of a wire fence blocking a public access road; they asserted a tribunal award and a Magistrates' Court judgment adopting it remained unchallenged. The Attorney General opposed joinder. The court declined joinder of the police officers, holding their presence unnecessary for effectual adjudication. It found neither party had established a prima facie case, and mandatory injunction was unwarranted as this was not a clear case. Crucially, it held the real dispute was a boundary one over which section 18(2) & (3) of the Land Registration Act divests the court of jurisdiction. It ordered maintenance of status quo, referred the boundary dispute to the Registrar of Lands for a report within 120 days, and ordered costs to be in the cause. Judgment delivered by L.N. Gacheru, J on 9th March 2015.

Key legal issues

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01

Whether the police officers should be joined as Interested Parties

Holding

Joinder declined - their presence is not necessary for effectual and complete adjudication.

Reasoning

Order 1 Rule 10(2) allows joinder of persons whose presence is necessary to effectually and completely adjudicate. The officers were engaged to assist in enforcing the ex-parte orders and have no interest in the suit properties; the court itself did not direct police assistance. Their involvement therefore does not aid determination of the dispute.

p. 7
02

Whether either party established a prima facie case for injunctive relief

Holding

Neither party did; the encroachment and demarcation of the access road are unclear.

Reasoning

The court found it unable to determine whether either party encroached on the other's property and noted the access road's demarcation was unclear, with each side accusing the other of blocking it. A prima facie case with a chance of success was therefore not established, and mandatory injunction was not warranted in this clear-case threshold.

p. 7
03

Whether the court can determine what is in substance a boundary dispute

Holding

No - section 18(2) & (3) of the Land Registration Act divests the court of jurisdiction over boundary disputes unless boundaries have been determined under that section.

Reasoning

The real dispute was identified as the boundary between the parties' properties. By section 18(2), the court shall not entertain proceedings relating to boundary disputes unless determined per the section; by section 18(3), the Registrar may receive boundary evidence and uncertain boundaries are determined per the Survey Act. The court accordingly referred the matter to the Registrar.

p. 7
04

What interim measures preserve the position pending trial

Holding

Status quo to be maintained; matter referred to the Registrar of Lands for a report within 120 days.

Reasoning

Despite declining injunctions, the court invoked the principle that status quo be maintained where facts are hotly disputed, restraining both parties from interfering with each other's properties and the access road, and directed the Registrar of Lands to investigate and report on the origin and status of the disputed parcels.

p. 8

Legal principles established

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  • Under section 18(2) & (3) of the Land Registration Act, the court is divested of jurisdiction to entertain actions relating to disputes as to boundaries of registered land unless the boundaries have been determined in accordance with that section.
  • Where facts are highly disputed, the general principle is that status quo be maintained until the dispute is decided at trial.
  • A nullity is void ab initio and requires no order to set it aside (Macfoy v United Africa Co. Ltd, cited by the Applicant's counsel).

Court orders

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  1. 1.Joinder of the intended Interested Parties declined
  2. 2.Pending the hearing and determination of the Originating Summons, maintenance of status quo such that no party shall interfere with each other's properties as well as the access road as currently delineated
  3. 3.Matter to be mentioned before the Registrar of Lands Kajiado County or the Registrar whose jurisdiction the properties in dispute lie
  4. 4.Registrar of Lands to furnish a report to the court within 120 days on the boundary dispute including the access road, the status and origin of Plots No. 4283, 4284, 4285, 4286, 4287, 4288, 4289 and 4290, and the origin of Plots No. 8767, 16463, 20463, 20464 and 20466
  5. 5.Costs of the applications to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a), 2(1) & (2)
  • Civil Procedure RulesOrder 51 Rule 1 & 2
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Civil Procedure ActSections 1A, 1B & 63(e)
  • Civil Procedure ActSection 3A
  • Land Registration Act, 2012Sections 21(1), 24, 25, 26(1)
  • Land Registration Act, 2012Section 18(2) & (3)
  • Land Dispute Tribunal Act (repealed)Section 3
  • Survey ActCap. 299, section 19(3) proviso reference
  • Constitution of Kenya, 2010Article 40

Cases cited (4)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Macfoy v United Africa Co. Ltd
    (1961) 2 All ER 1169
  • Kenya Breweries Ltd and another v Washington Okeyo
    (2002) 1 E.A. 109
  • Ougo & Another v Otieno
    (1987) KLR 1
Jurisdiction invoked
Environment and Land Court jurisdiction; Civil Procedure Act (Sections 1A, 1B & 63(e)), Civil Procedure Rules (Order 40 Rule 1(a), 2(1) & (2), Order 51 Rule 1 & 2), Land Registration Act, 2012 (Sections 21(1), 24, 25, 26(1)) and Article 40 of the Constitution

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, "Parmuat Oloishorua Kore v Philip Santamo Wauntai & 7 others [2015] KEELC 738 (KLR)", Case Analysis (2015). ELC, Kajiado - Originating Summons and Notice of Motion both dated 20th May 2014; 1st-3rd Respondents' Notice of Motion dated 16th June 2014 (Kajiado LDT Misc. No. 69 of 2011 referred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/738/eng@2015-03-09

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