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ELCDismissedAppeal dated 10th July 2017 (Environment and Land Court, Migori)· [2019] KEELC 881 (KLR)

Rispa Okuta Ajwang v Siprosa Auma Juma [2019] KEELC 881 (KLR)

Environment and Land Court
31 October 2019
2,450 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 confirmed boundary disputes over registered land must first go to the Land Registrar, not the courts.

What this practically means

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Executive summary

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The appellant appealed against the ruling of the Oyugis Senior Principal Magistrate's Court (J.P. Nandi, SRM) of 9th June 2017 in Miscellaneous Application Civil Case Number 8 of 2017, which allowed the respondent's Notice of Motion dated 25th April 2017. The respondent, daughter of the late Ongadi Jabedo, sought orders directing the District Land Registrar and District Land Surveyor, Rachuonyo, to subdivide, ascertain and determine the boundary of parcel East Karachuonyo/Kobuya/1296 according to the 3/4 to 1/4 ratio shown in an official search, with security from the OCS Kendu Bay during the exercise. The appellant opposed on grounds of lack of jurisdiction and competence, contending the dispute concerned encroachment and adverse possession rather than a boundary. On appeal, G.M.A. Ongondo J, applying the first-appeal standard in Peters v Sunday Post and the jurisdictional jurisprudence in Owners of Motor Vessel 'Joey', Republic v Karisa Chengo and Samwel Kamau Macharia, held that the dispute plainly concerned a boundary which under sections 18 and 19 of the Land Registration Act falls first to the Land Registrar; the trial court had referred the dispute there rather than determining it, so ground one failed. Ground two failed because the miscellaneous application was not fatally defective, the court invoking sections 3 and 19(1) of the Environment and Land Court Act, sections 3 and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution. Ground three failed on the authority of the Malindi Law Society decision. The appeal was dismissed with costs to the appellant.

Key legal issues

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01

Jurisdiction over boundary disputes

Holding

The trial court had jurisdiction but correctly referred the boundary dispute to the Land Registrar, the first port of call, as mandated by sections 18 and 19 of the Land Registration Act

Reasoning

The court found that the dispute concerned determination of the boundary of LR East Karachuonyo/Kobuya/1296. Section 18(2) bars court proceedings relating to boundary disputes unless boundaries have been determined under that section. The trial magistrate referred the dispute to the Land Registrar and did not determine it, so the first and third grounds of appeal failed.

p. 4
02

Commencement of proceedings by miscellaneous application

Holding

The proceedings were not fatally defective or a nullity despite originating by way of a miscellaneous application under Order 51 Rule 1

Reasoning

Relying on section 2 of the Civil Procedure Act defining 'suit', and sections 3 and 19(1) of the Environment and Land Court Act, sections 3 and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution, the court held the Chemjor and Ocholla cases distinguishable and found the miscellaneous application competent.

p. 4
03

Trial court's holding on jurisdiction

Holding

The trial court's holding that it had jurisdiction over the land dispute was correct

Reasoning

The court endorsed the trial magistrate's holding, guided by the Court of Appeal decision in Malindi Law Society of Kenya, Nairobi Branch, Civil Application Number 20 of 2017, and dismissed the third ground of appeal.

p. 4

Legal principles established

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  • A court lacks jurisdiction to entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with section 18 of the Land Registration Act
  • Where a court lacks jurisdiction its decision becomes null; jurisdiction goes to the root of litigation
  • A first appellate court has jurisdiction to review the evidence but should exercise that jurisdiction with caution

Court orders

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  1. 1.The instant appeal is dismissed
  2. 2.Costs of the appeal to be borne by the appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rules 1 and 2
  • Land Registration Actsections 3, 18, 18(1), 18(2), 19, 20, 21
  • Civil Procedure Act (Cap 21)sections 2, 3, 3A, 5, 11, 19
  • Environment and Land Court Act, 2015sections 3, 19(1), 19(2)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (11)

  • Samwel Kamau Macharia and another v Kenya Commercial Bank Limited and 2 others
    (2012) eKLR
  • Owners and Masters of the Motor Vessel 'Joey' v Owners and Masters of the Motor Tugs 'Barbara' and 'Steve B'
    (2008) 1EA 367
  • Willis Ocholla v Mary Ndege
    (2016) eKLR
  • Joseph Kibowen Chemjor v William C. Kisera
    (2013) eKLR
  • Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) and 2 others
    (2014) eKLR
  • David Macharia Kinyuru v District Land Registrar, Naivasha and another
    (2017) eKLR
  • Peters v Sunday Post Ltd
    (1958) EA 424
  • Lemankan Aramat v Harun Maitamei Lempaka and 2 others
    (2014) eKLR
  • Republic v Karisa Chengo and 2 others
    (2017) eKLR
  • Andrew Marigwa v Josephat Ondiek Kebati
    (2017) eKLR
  • Malindi Law Society of Kenya, Nairobi Branch and 5 others, Civil Application Number 20 of 2017
    eKLR
On appeal from
Oyugis Senior Principal Magistrate's Court
Misc. Application Civil Case Number 8 of 2017
Jurisdiction invoked
Environment and Land Court Act, 2015 (first appeal from subordinate court)

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, "Rispa Okuta Ajwang v Siprosa Auma Juma [2019] KEELC 881 (KLR)", Case Analysis (2019). Appeal dated 10th July 2017 (Environment and Land Court, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/881/eng@2019-10-31

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