Ratilal Ghela Shsh & 2 others v Menkar Limited [2018] KEELC 1462 (KLR)
The bottom line
#Kenya's Environment and Land Court sent a boundary dispute to the Land Registrar instead of striking out the case, showing courts now prefer practical fixes over dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a boundary dispute where the boundaries of the registered parcels have not been fixed
Section 18(2) of the Land Registration Act is mandatory; boundary disputes fall within the Land Registrar's mandate, and the Plaintiffs ought to have taken the dispute to the Land Registrar
The court reproduced Section 18 of the Land Registration Act, 2012, which bars the court from entertaining proceedings relating to disputes over boundaries of registered land unless the boundaries have been determined under that section. The register showed no entry that the boundaries had been fixed, so the cadastral map indicated only approximate boundaries. The court agreed with the holding in Willis Ocholla v Mary Ndege that the Plaintiffs should have gone to the Land Registrar.
Whether the plaint should nevertheless be struck out for contravention of Section 18(2)
No. Applying D.T. Dobie v Muchina and Articles 50 and 159 of the Constitution, the court declined to strike out the suit and instead directed the Land Registrar to determine the boundaries and file a report within 60 days
Although the jurisdictional bar in Section 18(2) applies, the court noted the unchallenged facts that the previous owner of Title No. Mombasa Block 1/409 was convicted of encroachment and a related case was pending. Guided by the D.T. Dobie strike-out principles (the suit showed a semblance of a cause of action) and Articles 50 and 159 of the Constitution, the court chose a practical course: the Land Registrar to fix the boundaries and report back, rather than dismissing the suit outright.
Legal principles established
#- Under Section 18(2) of the Land Registration Act, disputes as to boundaries of registered land whose boundaries have not been fixed fall within the Land Registrar's mandate and the court should not entertain them until the boundaries are determined under that provision
- A suit should not be summarily dismissed unless it is plainly hopeless and incurable by amendment
Court orders
#- 1.The Land Registrar Mombasa directed to conduct the process of determining the boundaries of the two parcels of land under Sections 18, 19 and 20 of the Land Registration Act, 2012 and file a report in court within sixty (60) days
- 2.The Defendant's Notice of Motion dated 6th July 2017 dismissed
- 3.No orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 2 Rule 15(1)(d) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 13(1) and 19(2) of the Environment and Land Court Act 2011; Section 18(2) of the Land Registration Act 2012; Articles 50 and 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ratilal Ghela Shsh & 2 others v Menkar Limited [2018] KEELC 1462 (KLR)", Case Analysis (2018). Mombasa ELC Case (Notice of Motion dated 6th July, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1462/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.