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ELCStruck OutNot stated in the judgment· [2018] KEELC 4270 (KLR)

Herman Leo Ogulla v Robert Idewa Emoit [2018] KEELC 4270 (KLR)

Environment and Land Court
21 February 2018
SMS. Mukunya
947 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts cannot hear land boundary disputes until the land registrar has first determined the boundary under the Land Registration Act.

What this practically means

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Executive summary

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The plaintiff sued the defendant seeking a temporary injunction restraining construction along the boundary of Title Numbers E. BUKUSU/S. KANDUYI/2958 and E. BUKUSU/S. KANDUYI/6418, an order for demolition of encroaching structures, a declaration that a boundary dispute existed, an order for the County Surveyor Bungoma to survey the parcels and issue a Beacon Certificate, and an order compelling the County/Town Planning Department to furnish building plan approvals. The defendant filed a preliminary objection contending the court lacked jurisdiction over the boundary dispute. The plaintiff resisted, invoking Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Justice S. Mukunya held that although the Environment and Land Court was created under Article 162(2)(b) with jurisdiction under Section 13(2)(a) of the Environment and Land Court Act 2011, the later Land Registration Act 2012, by Sections 18(2) and 19, requires boundary disputes over registered land to be first determined by the land registrar and surveyor, and by Section 5 prevails over inconsistent written law. Since the plaintiff's own pleadings described the suit as a boundary dispute and no such determination had occurred, the suit was filed in a court without jurisdiction. The preliminary objection was sustained, the suit was struck out, and costs were awarded to the defendant.

Key legal issues

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01

Whether the court had jurisdiction over the suit

Holding

The court had no jurisdiction because the dispute was a boundary dispute over registered land and no determination had been made under Section 18(2) of the Land Registration Act 2012

Reasoning

The court traced the creation of the Environment and Land Court under Article 162(2)(b) and its jurisdiction under Section 13(2)(a) of the Environment and Land Court Act. However, the later-enacted Land Registration Act 2012, by Section 18(2), bars the court from entertaining boundary disputes unless the boundary has been determined under the statutory procedure, and Section 5 makes it the first point of reference. The plaintiff's own pleadings admitted the dispute was a boundary dispute, so the suit was filed without jurisdiction.

p. 2
02

Conflict between the Environment and Land Court Act 2011 and the Land Registration Act 2012

Holding

The later Land Registration Act 2012 prevails and ousts the court's jurisdiction over boundaries until determination under Section 18

Reasoning

The Environment and Land Court Act commenced on 30th August 2011 and gave the court power to hear boundary disputes under Section 13(2)(a). The Land Registration Act 2012, commencing 2nd May 2012, is the later Act. Its Section 18(2) prohibits the court from entertaining boundary disputes before determination under the Act, and Section 5 excludes inconsistent written law. Parliament therefore conditioned the court's jurisdiction on prior statutory determination of boundaries.

p. 2

Legal principles established

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  • The Environment and Land Court cannot entertain an action relating to a boundary dispute over registered land unless the boundary has first been determined in accordance with Section 18 of the Land Registration Act 2012
  • Where a specific statutory procedure exists for determining boundaries, the court cannot grant relief in a suit filed before that procedure is exhausted

Court orders

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  1. 1.The Preliminary Objection is sustained
  2. 2.The suit is struck out with costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and the Environment and Land Court Act No. 19 of 2011; objection founded on Section 18(2) of the Land Registration Act 2012

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, "Herman Leo Ogulla v Robert Idewa Emoit [2018] KEELC 4270 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4270/eng@2018-02-21

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