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ELCDismissedOriginating Summons dated 28th August 2009 (Eldoret High Court)· [2019] KEELC 1022 (KLR)

William Yator Kaino v Masai Cheboi & 3 others [2019] KEELC 1022 (KLR)

High Court of Kenya
8 October 2019
MOM. A. ODENY
3,398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who skipped the required appeal to the Chief Land Registrar lost his boundary dispute because Kenyan courts insist statutory remedies are used first.

What this practically means

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Executive summary

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By an originating summons dated 28th August 2009 the plaintiff sought setting aside of the 4th defendant Land Registrar's boundary determination of 30th July 2009 between parcel MOIBEN/MOIBEN BLOCK 3 (KAPSILIAT)/94 and the 1st–3rd defendants' parcel /86, together with an order that the original boundary, beacons and measurements remain unaltered, plus costs. The plaintiff complained that during the site exercise the 2nd and 3rd defendants caused disturbances, prompting the Registrar to take a second set of measurements from a neighbouring parcel not covered by the notice, which overlapped the plaintiff's land. The 2nd and 3rd defendants maintained the exercise was duly conducted and that the plaintiff should have appealed to the Chief Land Registrar or gone to the Land Disputes Tribunal; the 4th defendant likewise asserted the plaintiff never exercised the 30-day right of appeal and that any challenge to administrative action lay in judicial review. The court framed the issue as whether it should interfere with the Registrar's decision. Applying sections 21(2), 22, 149 and 150 of the repealed Registered Land Act, it found notice was given and acknowledged, the exercise proceeded in the presence of all parties, and the parties had agreed to use the map. Holding that statutory procedures must be exhausted and that the plaintiff bypassed both the appeal to the Chief Land Registrar and the Land Disputes Tribunal, the court found the suit lacked merit, dismissed it and awarded costs to the 2nd and 3rd defendants.

Key legal issues

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Jurisdiction to entertain a challenge to a Land Registrar's boundary determination

Holding

The High Court could not entertain the suit because the plaintiff failed to appeal to the Chief Land Registrar under section 150 of the Registered Land Act or to take the dispute to the Land Disputes Tribunal as required

Reasoning

The court found that sections 149 and 150 of the Registered Land Act (repealed) prescribed a settled route for redress: a stated case to the High Court by the Registrar or an appeal to the Chief Land Registrar within 30 days, and at the material time the Land Disputes Tribunal had jurisdiction over boundary disputes. The plaintiff bypassed all these avenues and filed suit directly, so the court lacked jurisdiction to disturb the Registrar's determination.

p. 5
02

Validity of the Land Registrar's boundary-fixing exercise of 30th July 2009

Holding

The exercise was lawful: notice was given, all parties were present, and the Registrar acted within the powers conferred by sections 21(2) and 22 of the Registered Land Act (repealed) and now section 19 of the Land Registration Act

Reasoning

The court recited section 22 of the repealed Registered Land Act governing fixing of boundaries and noted it was undisputed that notice dated 29th June 2009 was given and acknowledged, and that the exercise took place in the presence of all parties. The report showed the parties agreed to use the map to position the boundary and the surveyor apportioned the overlapping portion, with both sides losing land. Nothing warranted interference.

p. 4

Legal principles established

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  • Where a statute lays down a procedure for redress, it must be adhered to and exhausted before resorting to the court

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the 2nd and 3rd defendants

Authorities

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Legislation

  • Registered Land Act (Cap 300) (repealed)section 21(2)
  • Registered Land Act (Cap 300) (repealed)section 22(1),(2),(3)
  • Registered Land Act (Cap 300) (repealed)section 149
  • Registered Land Act (Cap 300) (repealed)section 150(1),(2)
  • Registered Land Act (Cap 300) (repealed)section 159
  • Land Registration Act, 2012section 19
  • Land Disputes Tribunals Actsection 3(1)

Cases cited (3)

  • Mwalagaya versus Bandali
    (1984) KLR page 750-760
  • Republic Vs. the Land Disputes Tribunal, Kajiado North Exparte Rachael Gathoni Mbai & Anor
    (2012) eKLR
  • STEPHEN MRING'A & 2 OTHES VS. COUNTY COUNCIL OF TAITA & 2 OTHERS
    (2016) eKLR
Jurisdiction invoked
Section 159 of the Registered Land Act (Cap 300) (now repealed), as invoked by the plaintiff

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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 Yator Kaino v Masai Cheboi & 3 others [2019] KEELC 1022 (KLR)", Case Analysis (2019). Originating Summons dated 28th August 2009 (Eldoret High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1022/eng@2019-10-08

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