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ELCDismissedNotice of motion dated 6th November 2018 (suit number not stated in the judgment)· [2019] KEELC 1194 (KLR)

John Nduba v Director of Survey & another [2019] KEELC 1194 (KLR)

Environment and Land Court
17 October 2019
LKL. KOMINGOI
619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's courts will not decide land boundary disputes until the land registrar has first fixed the boundary under the Land Registration Act.

What this practically means

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Executive summary

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The plaintiff, John Nduba, moved the court by notice of motion dated 6th November 2018 under Order 40 rules 1, 2 and 3 and Order 51 rule 1 of the Civil Procedure Rules 2010, sections 16(1), 18, 19 and 21 of the Land Registration Act 2012 and sections 1A, 1B and 3A of the Civil Procedure Act. He sought a temporary injunction restraining the 2nd defendant from interfering with the parties' common boundary and destroying the boundary fence, and restraining the 1st and 2nd respondents from harassing him pending the hearing of the main suit, with costs in the cause. The application was opposed through a replying affidavit sworn by Edward Elijah Mwenda, the 2nd defendant, and was canvassed by written submissions following directions issued on 27th March 2019. The court framed two issues: whether the application met the threshold for a temporary injunction, and who should bear costs. Applying the Giella v Cassman Brown principles and the Mrao Ltd definition of a prima facie case, the court noted that the dispute concerned a common boundary which, under section 18 of the Land Registration Act, is deemed approximate unless fixed, and that no boundary action may be entertained until boundaries are determined under that section. The Chief Land Registrar had directed the parties to the Director of Surveys; the court held the 1st respondent was the officer mandated to resolve the dispute and that re-establishment of beacons had already been conducted, with a report prepared, but the plaintiff declined to participate. The court found no prima facie case, dismissed the application, and ordered that costs abide the outcome of the main suit.

Key legal issues

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01

Whether the plaintiff's application met the threshold for a temporary injunction

Holding

It did not; the plaintiff failed to establish a prima facie case with a probability of success at trial.

Reasoning

The parties share a common boundary which, per section 18(1) of the Land Registration Act, is deemed approximate unless fixed in the register. The Chief Land Registrar directed the parties to the Director of Surveys, and the court held the 1st respondent, the land registrar, was the officer mandated to resolve the dispute. The re-establishment of beacons had already been conducted and a report prepared, but the plaintiff declined the invitation to participate, undermining his claim of interference.

p. 2
02

Who should bear costs of the application

Holding

Costs were ordered to abide the outcome of the main suit rather than being awarded to any party immediately.

Reasoning

Having dismissed the application, the court declined to make an immediate award of costs, instead directing that costs of the interlocutory application await the outcome of the substantive suit. This preserves the position of both parties pending full determination of the boundary dispute.

p. 2

Legal principles established

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  • Under section 18(2) of the Land Registration Act, the court shall not entertain any action or proceedings relating to a dispute as to boundaries of registered land unless the boundaries have first been determined in accordance with that section.
  • The principles for granting a temporary injunction are those set out in Giella v Cassman Brown, and a prima facie case as defined in Mrao Ltd v First American Bank of Kenya must be established.

Court orders

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  1. 1.The notice of motion dated 6th November 2018 is dismissed.
  2. 2.The costs of the application shall abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 rules 1, 2, 3; Order 51 rule 1
  • Land Registration Act 2012Sections 16(1), 18, 19, 21
  • Civil Procedure ActSections 1A, 1B, 3A
  • Land Registration ActSection 18(1) and 18(2); section 20 (referred to in quoted text)

Cases cited (2)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 rules 1, 2, 3 and Order 51 rule 1 of the Civil Procedure Rules 2010; sections 16(1), 18, 19 and 21 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, "John Nduba v Director of Survey & another [2019] KEELC 1194 (KLR)", Case Analysis (2019). Notice of motion dated 6th November 2018 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1194/eng@2019-10-17

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