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ELCDismissedNot stated in judgment (ELC Meru)· [2018] KEELC 2558 (KLR)

William Gacani Mbaria v Charles Kirimi Mbui [2018] KEELC 2558 (KLR)

Environment and Land Court
11 July 2018
LMLucy N. Mbugua
1,187 words in judgment
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The bottom line

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A Meru court dismissed a landowner's trespass suit, ruling the land registrar—not the court—must first resolve boundary disputes over registered land.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru on a preliminary objection dated 19.4.2017 in which the defendant contended that the court lacked jurisdiction because the dispute was a boundary dispute reserved for the land registrar under the Land Registration Act. The defendant had earlier lodged a boundary dispute with the district land registrar, Meru Central; both parties were heard, and the correct boundary between the plaintiff's parcel Ntirimiti/Settlement Scheme/417 and the defendant's parcel Ntirimiti/Settlement Scheme/484 was fixed on the ground in the company of the county surveyor, culminating in a report dated 26.7.2016. The plaintiff nonetheless filed suit alleging fraudulent annexation of his land and seeking trespass and damages, contending he was not notified of the registrar's process and that the survey was methodologically flawed. The court, applying the Mukisa Biscuit test for preliminary objections, held that the pleadings showed the dispute was fundamentally a boundary dispute. Relying on section 18(2) of the Land Registration Act, the court held that it could not entertain the suit since the registrar had already determined the boundary, and that the plaintiff's remedy, if dissatisfied, was to challenge the registrar's decision through available legal mechanisms rather than ignore it. The court upheld the preliminary objection, found the suit incompetent, and dismissed it with costs to the defendant, directing the parties to abide by the land registrar's decision.

Key legal issues

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01

Whether the court has jurisdiction over the dispute

Holding

The court lacks jurisdiction because the dispute is a boundary dispute that has already been determined by the land registrar pursuant to section 18(2) of the Land Registration Act.

Reasoning

The pleadings showed the plaintiff's complaint was anchored on interference with the boundary between the two parcels. The defendant had lodged a boundary dispute with the district land registrar, both parties were heard, and the correct boundary was fixed on the ground with the county surveyor; the registrar's report dated 26.7.2016 was availed. The plaintiff, dissatisfied, did not challenge the report through available mechanisms but filed suit. Section 18(2) bars the court from entertaining boundary disputes not determined under that section, so the suit was incompetent.

p. 2
02

Whether the dispute is a boundary dispute rather than one of theft of land or trespass

Holding

The dispute is a boundary dispute.

Reasoning

The plaint alleged that the defendant fraudulently annexed part of the plaintiff's land when purchasing the adjoining parcel, indicating a complaint about boundary interference. The defence counter-accused the plaintiff of destroying the defendant's fence, reinforcing that the real issue was the position of the boundary between parcels 417 and 484.

p. 2

Legal principles established

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  • A court may not entertain any action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with section 18 of the Land Registration Act
  • Where a land registrar has resolved a boundary dispute, the parties should abide by that decision; the registrar's statutory powers cannot be wished away
  • A preliminary objection must be based on a pure point of law which may dispose of the suit

Court orders

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  1. 1.The preliminary objection dated 19.4.2017 is upheld
  2. 2.The suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Land Registration Actsection 18(2)

Cases cited (7)

  • Seven Seas Technologies Limited vs. Eric Chege
    (2014) eKLR
  • Owners of Motor Vessel Lillian S' vs. Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Wills Ocholla vs. Mary Ndege
    (2016) eKLR; ELC 137 of 2015 Kisumu
  • Alice Mweru Ngai vs. Kenya Power and Lighting Co.
    (2015) eKLR
  • Joseph Njuguna Mwaura & 2 others vs. Republic
    (2013) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors
    (1968) EA 698
  • Independent Electoral & Boundaries Commission vs. Jane Cheperenger & 2 others
    (2015) eKLR
Jurisdiction invoked
Section 18(2) of the Land Registration Act (jurisdictional bar on boundary disputes not first determined by the land registrar)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "William Gacani Mbaria v Charles Kirimi Mbui [2018] KEELC 2558 (KLR)", Case Analysis (2018). Not stated in judgment (ELC Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2558/eng@2018-07-11

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