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ELCStruck OutPlaint dated 13th June 2014 (Kajiado)· [2015] KEELC 773 (KLR)

Amos Mpeshe & 3 others v Salau Ole Sokon Modo [2015] KEELC 773 (KLR)

Environment and Land Court
12 March 2015
JMJ. M. Mutungi
2,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land boundary dispute suit because boundary fixing must first go through the Land Registrar, not the courts.

What this practically means

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Executive summary

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The plaintiffs sued by plaint dated 13th June 2014 alleging that the Defendant had encroached on land parcel Kajiado/Kitengela/1862, later subdivided into parcels 3204 and 3205, and sought a permanent injunction and damages for trespass. Simultaneously they sought a temporary injunction and the appointment of surveyors to fix the parties' boundaries. The Defendant filed a preliminary objection contending that the court lacked jurisdiction because the boundary dispute had been adjudicated by the District Land Registrar, Kajiado on 26th July 2012, a decision upheld by Odunga, J in Judicial Review Miscellaneous Application No. 441 of 2012; that the suit was sub judice a pending application in the Kajiado Senior Resident Magistrate's Court seeking adoption of the Registrar's decision; and that the suit was defective and an abuse of process. The plaintiffs relied on Biren Amritlal Shah to argue that judicial review concerned process, not merits, so res judicata did not apply, and on Mukisa Biscuits to challenge the competency of the objection. The court held that the suit was not res judicata, since different issues were involved, but that sections 16, 18, 19 and 86 of the Land Registration Act 2012 vest boundary determination in the Land Registrar and bar the court from entertaining boundary disputes unless the statutory procedure is exhausted. The Registrar's decision of 26th July 2012 stood, having been upheld in judicial review. The court upheld the preliminary objection and struck out the plaintiffs' suit with costs to the Defendant.

Key legal issues

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01

Jurisdiction over boundary disputes under the Land Registration Act

Holding

The court lacks jurisdiction to entertain a suit relating to a boundary dispute; boundary determination and fixing is within the preserve of the Land Registrar under sections 16, 18, 19 and 20 of the Land Registration Act 2012, and the statutory procedure must be exhausted first

Reasoning

The Land Registration Act, like the repealed Registered Land Act, vests power to alter and fix boundaries in the Land Registrar. Section 18(2) expressly bars the court from entertaining boundary disputes unless the boundaries have been fixed in accordance with the Act. An aggrieved party's remedy is review by way of a case stated under section 86. Since the Registrar's decision of 26th July 2012 was upheld in judicial review, the court would be usurping the powers of another organ of the state were it to entertain the suit.

p. 5
02

Res judicata

Holding

The suit is not res judicata by reason of the judicial review ruling because different issues are involved, but it is nonetheless barred for want of jurisdiction

Reasoning

The court accepted the plaintiffs' submission, supported by Biren Amritlal Shah, that judicial review challenged only the process, not the merits, of the Registrar's decision. Accordingly the principle of res judicata could not be invoked on the basis of the judicial review proceedings. However, the suit still failed because it sought the establishment and fixing of disputed boundaries, a matter squarely governed by the Land Registration Act and already the subject of the Registrar's determination.

p. 5

Legal principles established

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  • The Land Registration Act 2012 provides the procedure for dealing with land boundary disputes and parties must exhaust that procedure before resorting to court
  • Under section 18 of the Land Registration Act, the court is precluded from entertaining any action or proceedings relating to a boundary dispute unless the boundaries have been fixed in accordance with the Act
  • Judicial review is concerned with the decision-making process, not the merits of the decision

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The plaintiff's suit filed on 13th June 2014 vide the plaint of even date is struck out with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure Actsections 5, 6, 7
  • Land Registration ActNo. 3 of 2012, sections 16, 18, 19, 20, 86
  • Registered Land Act (repealed)Cap 300

Cases cited (2)

  • Biren Amritlal Shah & Another –vs- Republic & 3 others
    (2013) eKLR
  • Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors
    (1969) EA 696
Jurisdiction invoked
Sections 16, 18, 19 and 86 of the Land Registration Act No. 3 of 2012; sections 5, 6 and 7 of the Civil Procedure Act (raised by the preliminary objection)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Amos Mpeshe & 3 others v Salau Ole Sokon Modo [2015] KEELC 773 (KLR)", Case Analysis (2015). Plaint dated 13th June 2014 (Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/773/eng@2015-03-12

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