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ELCDismissedNot stated in the judgment (suit filed by amended plaint dated 12th October 2016)· [2017] KEELC 3313 (KLR)

Samuel Njoroge Gitukui & 6 others v Kenya Rural Roads Authority & 5 others [2017] KEELC 3313 (KLR)

Environment and Land Court
24 January 2017
SOS. Okong'o
2,462 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed landowners' bid to stop road construction, ruling that boundary disputes over unfixed boundaries 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 plaintiffs, registered proprietors of ten parcels of land in Muguga/Gitaru within Kiambu County, sued the defendants in October 2016 seeking a permanent injunction restraining construction of Road E1507 through portions of their land until compensation is paid, together with declarations that they had not encroached on the disputed road and that the measurements in Map Sheets 3 and 6 were the correct ones. Together with the amended plaint they sought a temporary injunction restraining the defendants from entering upon or demolishing structures within the suit properties pending trial. The application was opposed by the 1st, 2nd, 4th and 6th defendants, the latter contending res judicata by reason of a prior determination by the 2nd defendant that the plaintiffs had encroached on the road, which was planned in 1935 and covered by Deed Plan No. 33992. The court applied the Giella v Cassman Brown test for interlocutory injunctions. It found itself unable to determine whether the road measured 10 or 18 meters, observing that under section 18(1) of the Land Registration Act 2012 the Map Sheets relied on by the plaintiffs were not conclusive proof of boundaries because no fixed boundaries were noted in the register, and that section 18(2) barred the court from entertaining disputes over unfixed boundaries, which should have gone to the Land Registrar under section 19. The plaintiffs therefore failed to establish a prima facie case, and their claim, being essentially one for compensation, was compensable in damages. The application was dismissed with costs in the cause and the interim injunction of 27th September 2016 was discharged.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for an interlocutory injunction

Holding

They did not; the court could not determine whether the road measures 10 or 18 meters and the court lacked jurisdiction over the unfixed boundary dispute

Reasoning

The plaintiffs relied on Map Sheets 3 and 6 to establish their boundaries, but under section 18(1) of the Land Registration Act 2012, absent a note in the register that boundaries are fixed, such maps indicate only approximate boundaries. Section 18(2) bars the court from entertaining boundary disputes over unfixed boundaries. The dispute should have gone to the Land Registrar under section 19. Without a prima facie case, the injunction could not issue.

p. 4
02

Whether the plaintiffs would suffer irreparable harm not compensable in damages

Holding

No; their claim was essentially for compensation which damages could satisfy

Reasoning

Paragraphs 10, 11 and 12 of the amended plaint and prayer (a) showed the claim was for compensation for developments alleged to fall within the disputed road. Damages would adequately compensate any loss, and the plaintiffs did not allege the defendants were incapable of paying. The irreparable harm limb of the Giella test therefore failed.

p. 4
03

Jurisdiction over the boundary dispute

Holding

The court lacks jurisdiction; the dispute belongs before the Land Registrar in the first instance

Reasoning

Section 18(2) of the Land Registration Act 2012 bars the court from entertaining proceedings over unfixed boundaries. Since the plaintiffs' titles did not indicate fixed boundaries, the dispute as to whether they encroached on Road E1507 could not be determined by the court and should have been taken to the Land Registrar under section 19.

p. 4

Legal principles established

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  • Where boundaries of a parcel of land have not been fixed and noted in the register, cadastral maps or plans are deemed to indicate only approximate boundaries, and the court is barred from entertaining boundary disputes over unfixed boundaries, such disputes falling to the Land Registrar in the first instance.

Court orders

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  1. 1.The plaintiffs' application dated 12th October 2016 dismissed with costs to be in the cause
  2. 2.The interim injunction granted on 27th September 2016 discharged

Authorities

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Legislation

  • Land Registration ActSection 18(1)
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19

Cases cited (4)

  • Giella –vs- Cassman Brown & Co. Ltd.
    [1973] E. A. 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Mrao Limited vs. First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Wamutu vs. Kiarie
    [1982] KLR 480
Jurisdiction invoked
Not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Samuel Njoroge Gitukui & 6 others v Kenya Rural Roads Authority & 5 others [2017] KEELC 3313 (KLR)", Case Analysis (2017). Not stated in the judgment (suit filed by amended plaint dated 12th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3313/eng@2017-01-24

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