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ELCDismissedNotice of motion dated 21st October 2016 (suit particulars not stated in the judgment)· [2017] KEELC 2853 (KLR)

Andrew Onyango v Anjelina Awuor Onyango & 2 others [2017] KEELC 2853 (KLR)

Environment and Land Court
17 May 2017
SKS. M. Kibunja
652 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a neighbour's fence because boundary disputes must first go to the Land Registrar, not the court.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court by notice of motion dated 21st October 2016 seeking a temporary injunction to restrain the Defendants from trespassing on, entering, alienating, fencing, building on, tilling or otherwise interfering with his parcel South Ugenya/Ambira/3856 pending the hearing of the suit. The application was supported by the Plaintiff's affidavit and opposed by the 2nd Defendant's replying affidavit, with oral submissions by Mr. Nyanga for the Plaintiff and Mr. Mamwari for the Defendants. The court framed three issues: whether a prima facie case with probability of success was established, what orders to issue, and costs. It found that parcels Ugenya/Ambira/3855 and 3856 were registered on 28th April 2016 in the names of the 2nd Defendant and Plaintiff respectively upon subdivision of Ugenya/Ambira/15, and share a common boundary. The 2nd Defendant sold 0.05 hectares to the 3rd Defendant, who fenced it, and the Plaintiff alleged encroachment of three-quarters of an acre. The court held that the real dispute is over the boundary position, which under Section 18(2) of the Land Registration Act should have been referred to the Land Registrar before litigation. Consequently, the Plaintiff failed to establish a prima facie case, showed no irreparable loss, and the balance of convenience did not favour him. The notice of motion was dismissed with costs on 17th May 2017.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success justifying a temporary injunction

Holding

No prima facie case was established; the dispute is a boundary dispute that should first be determined by the Land Registrar under Section 18(2) of the Land Registration Act

Reasoning

Both parcels were registered on 28th April 2016 following subdivision of Ugenya/Ambira/15 and share a common boundary. The Plaintiff's complaint of encroachment by the 3rd Defendant's fencing depends on the boundary position, which only the Land Registrar can determine under the Land Registration Act. Without that determination the Plaintiff could not demonstrate an enforceable right, and no irreparable loss or balance of convenience in his favour was shown.

p. 2

Legal principles established

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  • Where the dispute between neighbouring proprietors is essentially one of boundary position, the party must first lodge a boundary dispute with the Land Registrar under Section 18(2) of the Land Registration Act before approaching the court
  • An applicant for a temporary injunction must show a prima facie case, irreparable loss not compensable in damages, and that the balance of convenience tilts in his favour

Court orders

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  1. 1.The Plaintiff's notice of motion dated 21st October 2016 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Land Registration ActSection 18(2)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; interlocutory application for temporary injunction

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, "Andrew Onyango v Anjelina Awuor Onyango & 2 others [2017] KEELC 2853 (KLR)", Case Analysis (2017). Notice of motion dated 21st October 2016 (suit particulars not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2853/eng@2017-05-17

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