Fredrick Nganga Thuo v Peter Mungai Njuho [2017] KEELC 1371 (KLR)
The bottom line
#A Kenyan court confirmed it can hear a land boundary dispute between neighbours when the boundary has already been formally fixed, dismissing the argument that only the Land Registrar could decide.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's notice qualified as a preliminary objection in law
It did, because it raises the pure point of law of jurisdiction which, if upheld, would dispose of the suit
The Court applied the Mukisa Biscuits definition, which requires a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Jurisdiction qualifies because where a court lacks jurisdiction it must down its tools, as per Owners of the Motor Vessel 'Lillian S'. The objection was therefore properly before the Court as a preliminary objection.
Whether the Court lacked jurisdiction over the boundary dispute under Sections 18(2) and 18(3) of the Land Registration Act
The Court has jurisdiction because the boundaries of the two parcels had already been fixed, as shown by the County Surveyor's report of 12th April 2017
Section 18(2) bars courts from entertaining boundary disputes only where boundaries have not been determined under that section. A surveyor's report by L. K. Ngetich, County Surveyor Kiambu, showed the boundary between parcels 819 and 820 had been fixed on the ground. The Registrar's mandate applies where boundaries are uncertain or unfixed, so the exclusionary rule was inapplicable and the objection failed.
Whether the Plaintiff's claims of permanent injunction and damages for trespass fall within the Court's jurisdiction
They do, under Section 13(2) of the Environment and Land Court Act read with Article 162(2)(b) of the Constitution
Section 13(2) confers power to hear and determine disputes relating to title, tenure, boundaries and any other dispute relating to environment and land. Trespass relates to land use and boundaries, hence within the Court's mandate. The suit also raises triable issues and is not an abuse of court process, so the objection was dismissed entirely with costs in the cause.
Legal principles established
#- Where the boundaries of registered parcels have been fixed, Section 18(2) of the Land Registration Act does not bar the Court from entertaining the dispute; the Land Registrar's jurisdiction applies only where boundaries are unfixed
- The Environment and Land Court has jurisdiction under Section 13(2) of the Environment and Land Court Act over disputes relating to boundaries and trespass
- A jurisdictional objection meets the Mukisa Biscuits test of a pure point of law and may dispose of the suit
Court orders
#- 1.The Defendant's Notice of Preliminary Objection dated 28th June 2017 is dismissed entirely with costs being in the cause
- 2.The Notice of Motion dated 15th June 2017 to be set down for hearing and decided on merit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Nganga Thuo v Peter Mungai Njuho [2017] KEELC 1371 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1371/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.