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Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (arising from Succession Cause No. 185 of 2016)· [2018] KEELC 1207 (KLR)

Joseph Oyondi Amumala v Sila Iyundo & 3 others [2018] KEELC 1207 (KLR)

Environment and Land Court
9 October 2018
476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts will not resolve land boundary disputes until a surveyor or Registrar has first fixed the boundaries under the Land Registration Act.

What this practically means

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Executive summary

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The applicant, administrator of the estate of Malaka Amumala Nandwa (deceased), applied by notice of motion dated 22nd August 2017 for an order that the court direct demarcation of the boundaries between land parcels Kisa/Wambulishe/729, 735 and 736, and that the parties share the cost of the survey on a pro-rata basis. The purpose of the application was to enable distribution of the deceased's estate in pending Succession Cause No. 185 of 2016, since the parcel comprising the estate had no clear boundaries and there was an apparent encroachment. The applicant asserted that the respondents were the registered and/or beneficial owners of the adjacent parcels. The respondents filed grounds of opposition, which the court described as general in nature. The court considered the application against section 18 of the Land Registration Act, 2012, which precludes courts from entertaining actions or proceedings relating to boundary disputes unless the boundaries have first been fixed in accordance with the Act. Adopting the holding in Amos Mpeshe & 3 others v Salau Ole Sokon Modo [2015] eKLR, the court held that the application was premature because demarcation must first be undertaken by the District Land Surveyor/Registrar under the statutory process. It found the application to be an abuse of the court process, unmerited, and dismissed it with costs on 9th October 2018.

Key legal issues

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01

Whether an application for demarcation of boundaries of registered land may be entertained by the court before the boundaries are fixed under section 18 of the Land Registration Act, 2012

Holding

The application is premature; the court is barred from entertaining boundary disputes until boundaries are fixed in accordance with the Act, and demarcation is a matter for the District Land Surveyor/Registrar.

Reasoning

The applicant sought a court-ordered survey to demarcate Kisa/Wambulishe/729 from adjacent parcels to enable distribution of the estate in a pending succession cause. However, section 18(2) of the Land Registration Act, 2012 expressly prohibits the court from entertaining any action or proceedings relating to a dispute as to boundaries of registered land unless the boundaries have been fixed in accordance with that section. Relying on Amos Mpeshe & 3 others v Salau Ole Sokon Modo, the court held that demarcation must first be undertaken through the statutory survey process before judicial intervention. The grounds of opposition were general, but the application could not stand against the statutory bar.

p. 1
02

Whether the application was an abuse of the court process

Holding

Yes - the court found the application premature and an abuse of the court process, and dismissed it with costs.

Reasoning

Because the statutory precondition of ascertainment of boundaries under section 18 had not been met, bringing the application before the court at that stage was premature and abusive. The court did not engage with the succession context beyond noting that the purpose was to enable distribution of the estate in Succession Cause No. 185 of 2016; the statutory bar was dispositive of the application.

p. 1

Legal principles established

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  • Under section 18 of the Land Registration Act, 2012, a court is precluded from entertaining any action or proceedings relating to a boundary dispute unless the boundaries have been ascertained or determined in accordance with the Act.

Court orders

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  1. 1.The application dated 22nd August 2017 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Land Registration Actsection 18(1) and 18(2)

Cases cited (1)

  • Amos Mpeshe & 3 others v Salau Ole Sokon Modo
    [2015] eKLR
Jurisdiction invoked
Land Registration Act, 2012 (section 18) - court's jurisdiction over boundary matters, which is barred until boundaries are fixed by the surveyor/Registrar

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, "Joseph Oyondi Amumala v Sila Iyundo & 3 others [2018] KEELC 1207 (KLR)", Case Analysis (2018). Not stated in the judgment (arising from Succession Cause No. 185 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1207/eng@2018-10-09

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