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ELCDismissedNot stated in the judgment· [2018] KEELC 2652 (KLR)

Laban Mongare Bitange v Julius Mokaya Ongera 2 others [2018] KEELC 2652 (KLR)

Environment and Land Court
29 June 2018
JMJ. M. Mutungi
2,004 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's trespass suit was dismissed because deciding it would have required the court to move a county boundary, which no court can do.

What this practically means

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Executive summary

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The plaintiff, registered owner of land parcel Settlement Scheme/Mwongori/426 in Nyamira County, sued the defendants for trespass, alleging they constructed a petrol station and semi-permanent houses on his land from 22nd September 2010 without consent. He sought a permanent injunction, eviction, general damages for trespass and costs. The defendants denied trespass, asserting the constructions were on parcels Kericho/Manaret Settlement Scheme/660, 689 and 702 registered in Bomet County and lawfully purchased from registered owners. During the defence evidence it became apparent the real dispute concerned the physical location and delineation of parcels Mwongori/426 and Kericho/Manaret/108 (subdivided into 660 and 661), given that the Kisii-Sotik/Kisii-Kericho Highway separates Nyamira and Bomet Counties. The court suo moto directed a locus in quo visit with the Land Registrars and County Surveyors of both counties, who filed reports agreeing that the Kisii-Kericho Highway is the established boundary between the two counties, previously between Nyanza and Rift Valley Provinces, and that the plaintiff's parcel does not cross it. Accepting the plaintiff's claim that his land crossed the highway by about 163 metres would necessarily alter the county boundary. Article 188(1) of the Constitution reserves alteration of county boundaries to Parliament and the Senate on a commission's recommendation, and no enabling legislation was yet in place, the County Boundaries Bill 2017 being pending. The court held it lacked jurisdiction to pronounce on the county boundary and therefore dismissed the suit, directing each party to bear their own costs.

Key legal issues

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01

Whether the suit, though couched in trespass, required determination of a county boundary

Holding

Yes; accepting the plaintiff's claim that his land crossed the Kisii-Kericho Highway by 163 metres would necessarily alter the boundary between Nyamira and Bomet Counties

Reasoning

Both land registrars reported that the Kisii-Kericho Highway formed the boundary between the defunct Nyanza and Rift Valley Provinces and remains the boundary between Nyamira and Bomet Counties. The plaintiff's assertion that parcel 426 crossed the highway by up to 163 metres would relocate the boundary, a matter reserved by Article 188 of the Constitution to a resolution of Parliament and the Senate on a commission's recommendation. The court therefore held the true dispute was county boundary delineation beyond its jurisdiction.

p. 2
02

Whether the court had jurisdiction to entertain the suit

Holding

No; the court lacked jurisdiction under Article 188 of the Constitution and dismissed the suit

Reasoning

Article 188(1) provides that county boundaries may be altered only by a resolution recommended by an independent commission and passed by the National Assembly and the Senate with prescribed majorities. The County Boundaries Bill 2017, intended to provide a mechanism for boundary disputes, was still pending in Parliament, leaving a lacuna. Since the trespass claim necessarily entailed pronouncing on the county boundary, the court had no jurisdiction to entertain it and could not grant the reliefs sought.

p. 3

Legal principles established

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  • A court in a private land dispute lacks jurisdiction where determination of the dispute would require it to delineate or alter a county boundary, as county boundaries may be altered only under Article 188(1) of the Constitution
  • There is currently a legislative lacuna because Parliament and the Senate are yet to enact legislation giving effect to Article 188 on county boundary alteration and dispute resolution

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party shall bear their own costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction as limited by Article 188(1) of the Constitution of Kenya, 2010 on alteration of county boundaries

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, "Laban Mongare Bitange v Julius Mokaya Ongera 2 others [2018] KEELC 2652 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2652/eng@2018-06-29

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