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ELCStruck OutNot stated in judgment· [2018] KEELC 2724 (KLR)

Salim Juma Silaha & another v Mwabaya Juba Chitsamba & 3 others [2018] KEELC 2724 (KLR)

Environment and Land Court
8 March 2018
LKL. KOMINGOI
804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit because the owners went to court before asking the Land Registrar to fix the boundary dispute first.

What this practically means

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Executive summary

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By a Plaint dated 30th January 2017, the Plaintiffs sued the Defendants seeking an order for survey and boundary remarking of two parcels, eviction of the Defendants from the encroached portion, costs, and any other relief. The 1st and 2nd Defendants filed a statement of defence and a preliminary objection contending that, there being no Land Registrar's report on the boundary issue on record, the court lacked jurisdiction under Sections 18, 19 and 20 of the Land Registration Act, No. 3 of 2012, and the suit was premature. The parties agreed on 15th June 2017 that the objection be disposed of by written submissions. The Defendants relied on three ELC authorities, principally Willis Ocholla v Mary Ndege, arguing that Section 18(2) ousts the court's jurisdiction until the Land Registrar determines the boundary. The Plaintiffs countered that the dispute was not a boundary dispute but arose from encroachment following sub-division of the 1st Defendant's parent title, and that the objection raised evidential matters unsuited to a preliminary objection. The court held that prayer (i) of the Plaint, seeking resurvey and boundary remarking, brought the matter squarely within Section 18(2), which bars the court from entertaining boundary disputes of registered land unless the boundaries have first been determined under that section. Adopting Willis Ocholla, the court found the Plaintiffs moved the court prematurely without first seeking redress from the Land Registrar. The preliminary objection was upheld, the suit was struck out with costs to the 1st and 2nd Defendants.

Key legal issues

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01

Whether the suit was premature for want of a Land Registrar's report on the boundary dispute

Holding

The preliminary objection was upheld; Section 18(2) of the Land Registration Act ousts the court's jurisdiction over boundary disputes of registered land until the Land Registrar has determined the boundaries, so the suit was premature and was struck out.

Reasoning

The court noted that prayer (i) of the Plaint sought resurvey and boundary remarking of the two parcels, bringing the dispute within Section 18(2) of the Land Registration Act, which bars the court from entertaining boundary disputes unless the boundaries have first been determined under that section. Relying on Willis Ocholla v Mary Ndege, the court held that proprietors must first seek redress from the Land Registrar before escalating a boundary dispute to court. The Plaintiffs having done so, the suit was premature and was struck out with costs.

p. 2

Legal principles established

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  • Under Section 18(2) of the Land Registration Act, the court cannot entertain actions relating to boundary disputes of registered land unless the boundaries have first been determined by the Land Registrar; a suit brought without such determination is premature and the court is without jurisdiction.

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Suit commenced by the Plaint dated 30th January, 2017 struck out
  3. 3.Costs of the suit to the 1st & 2nd Defendants

Authorities

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Legislation

  • Land Registration ActSections 18, 18(2), 19, 20

Cases cited (3)

  • Willis Ocholla –versus- Mary Ndege
    Kisumu ELC Land Case No. 137 of 2015
  • Amos Mpeshe And 3 Others –versus- Salau Ole Soken Modo
    Nairobi ELC No. 760 of 2014
  • Maricus Otieno Okwoyo –versus- George Owenge Aluoch
    Kisumu ELC Land Case No. 123 of 2014
Jurisdiction invoked
Environment and Land Court Act (suit concerning land; no specific provision stated)

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, "Salim Juma Silaha & another v Mwabaya Juba Chitsamba & 3 others [2018] KEELC 2724 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2724/eng@2018-03-08

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