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ELCDismissed· [2017] KEELC 2965 (KLR)

Anderson Mwalugo Faida v Ali Mohamed Mzungu & another [2017] KEELC 2965 (KLR)

Environment and Land Court
12 May 2017
OAO.A. ANGOTEJOJ.O. OLOLA
390 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court refused a landowner's injunction because boundary disputes must go to the Land Registrar, not the court, without surveyor evidence.

What this practically means

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Executive summary

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The Plaintiff moved the court by an application dated 23rd September 2016 seeking a temporary injunction restraining the Defendants, their relatives, servants and agents from trespassing on, encroaching on, constructing on or otherwise interfering with and disposing of the Plaintiff's parcel of land known as Kilifi/Kibarani/488 pending the hearing and determination of the suit, plus costs. The Plaintiff asserted that he bought the suit land in 1985 from Katune Bofu, had lived peacefully on it, and annexed a title deed issued on 5th January 1998. The 2nd Defendant responded that he owned Plot No. 920 in the Kibarani Settlement Scheme, that the 1st Defendant's plot was No. 921, that the Plaintiff had failed to attend boundary-identification meetings, and he denied any interference; he exhibited a Registry Index Map showing plots 920, 921 and the suit property abutting each other. Both sides were self-represented and did not file submissions. The court considered the dispute to be essentially a boundary dispute, specifically the boundary between plot 921 and the suit land. Relying on Section 18 of the Land Registration Act, which reserves boundary disputes to the Land Registrar, and noting the absence of any Surveyor's report demonstrating encroachment, the court declined to grant the injunction and dismissed the application dated 23rd September 2016 with costs. The substantive suit was not determined at this interlocutory stage.

Key legal issues

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01

Whether an interlocutory injunction should issue in a boundary dispute without survey evidence

Holding

The court declined to grant the injunction because the dispute was a boundary dispute reserved for the Land Registrar and no Surveyor's report established encroachment

Reasoning

The Plaintiff claimed to have bought the suit land in 1985 and obtained a title deed in 1998, and alleged interference by the Defendants. The 2nd Defendant denied interfering and exhibited a Registry Index Map showing plots 920, 921 and the suit property abutting each other. The court characterized the dispute as one about the boundary between plot numbers 921 and 488. Without a Surveyor's report demonstrating encroachment, and given Section 18 of the Land Registration Act assigning boundary disputes to the Land Registrar, the court found it inappropriate to grant the interlocutory orders sought and dismissed the application with costs.

p. 2

Legal principles established

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  • Disputes relating to boundaries of registered land are to be handled by the Land Registrar under Section 18 of the Land Registration Act, and a court will decline injunction relief in such disputes absent a Surveyor's report proving encroachment

Court orders

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  1. 1.The Plaintiff's Application dated 23rd September, 2016 is dismissed with costs

Authorities

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Legislation

  • Land Registration ActSection 18
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (not expressly cited in the judgment)

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, "Anderson Mwalugo Faida v Ali Mohamed Mzungu & another [2017] KEELC 2965 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2965/eng@2017-05-12

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