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ELCPartially AllowedELC Suit (plaint dated 18th December 2018) - Siaya; notice of motion dated 18th December 2018 and Preliminary Objection dated 13th February 2019· [2019] KEELC 2859 (KLR)

William Opondo Omalla v Gabriel Ochong Oriwo & another [2019] KEELC 2859 (KLR)

Environment and Land Court
26 June 2019
SKS.M. Kibunja
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Once the Land Registrar fixes a boundary, Kenyan courts can hear land disputes; but courts protect the status quo rather than allow demolitions before trial.

What this practically means

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Executive summary

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The Plaintiff sued seeking an injunction restraining the Defendants from encroaching onto Land Parcel North Ugenya/Sega/12, a parcel registered in the names of the late Augustino Omwanda, the late Henry Mutula, the late Dismas Othwilla and himself. The Defendants own neighbouring parcels North Ugenya/Sega/1216 and 1217, carved out of North Ugenya/Sega/13. The 1st Defendant filed a preliminary objection contending the court lacked jurisdiction because boundary disputes must first go to the Land Registrar under Sections 18(2) and 19 of the Land Registration Act, citing Owners of Motor Vessel 'Lilian S' and Willis Ocholla v Mary Ndege. The court framed two issues: its jurisdiction and costs of the objection. It applied Willis Ocholla, agreeing the Land Registrar is the first forum for boundary disputes, but found that the Land Registrar and District Surveyor had already re-established the boundaries on 1st to 3rd August 2012, about three months after the Act commenced, following a determination at which Augustino Omwanda was the applicant. The Land Registrar's determination having been rendered, the court held it had jurisdiction and rejected the preliminary objection with costs. Although the motion had not been heard together with the objection, the court decided it on the affidavit evidence to avoid delay, invoking Article 159(2)(b) and (d) and Section 1A of the Civil Procedure Act. It found the 1st Defendant's own deposition confirmed encroachment and that the 2nd Defendant, though served, conceded. However, it declined to grant the injunction as prayed because it could be used to demolish the 1st Defendant's houses pending the main suit. It instead restrained the 2nd Defendant from encroaching beyond the established boundary and the 1st Defendant from new developments, structures or farming on the occupied portion. The 1st Defendant was ordered to pay the Plaintiff's costs of the motion.

Key legal issues

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01

Whether the court has jurisdiction over the boundary dispute given Sections 18(2) and 19 of the Land Registration Act.

Holding

The preliminary objection on jurisdiction fails because the Land Registrar already determined the boundary on 1st to 3rd August 2012 after the Act commenced on 2nd May 2012.

Reasoning

Section 18(2) requires proprietors to first seek redress from the Land Registrar in boundary disputes, as held in Willis Ocholla v Mary Ndege. However, the re-establishment exercise of 1st to 3rd August 2012, undertaken about three months after the Act commenced, constituted the Land Registrar's determination on the boundary. The forum therefore properly lies with the court, and the objection was unfounded and without merit.

p. 2
02

Whether the 1st Defendant encroached on the suit land, justifying an interlocutory injunction.

Holding

A limited injunction was granted: the 2nd Defendant restrained from encroaching beyond the established boundary and the 1st Defendant restrained from new developments on the occupied portion, but no demolition pending the main suit.

Reasoning

The 1st Defendant's own replying affidavit, complaining that he found 'a big chunk of my land was taken away', confirmed the Plaintiff's complaint of encroachment. The 2nd Defendant, though served, filed no response and was taken to concede. The court however declined to allow demolition, preserving the status quo by restraining only new construction or farming pending full trial.

p. 3
03

Whether the court could determine the notice of motion together with the preliminary objection despite not being heard together.

Holding

The court dealt with the motion on the affidavit evidence on record to expedite the suit, in line with Article 159(2)(b) and (d) and the overriding objective under Section 1A of the Civil Procedure Act.

Reasoning

The court reasoned that dealing with the motion despite the sequencing adopted at the hearing would ensure justice was not delayed and administered without undue regard to procedural technicalities, and would further the overriding objective of just, expeditious, proportionate and affordable resolution of the civil dispute.

p. 3

Legal principles established

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  • Where the Land Registrar has already made a determination on a boundary of registered land under Sections 18 and 19 of the Land Registration Act, the court has jurisdiction to hear the boundary dispute; the Land Registrar is the first forum only before such determination.

Court orders

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  1. 1.The 1st Defendant's Preliminary Objection dated and filed on the 13th February 2019 is without merit and is rejected with costs.
  2. 2.The Plaintiff's notice of motion dated the 18th December 2018 allowed in the following terms:
  3. 3.The 2nd Defendant be and is hereby restrained by herself, agents and servants from encroaching onto Land Parcel North Ugenya/Sega/12 beyond the boundary erected by the Land Registrar and Surveyor during the 1st to 3rd August 2012 exercise without the consent or authority of the Plaintiff, pending the hearing and determination of this suit.
  4. 4.The 1st Defendant be and is hereby restrained by himself, agents or servants from erecting or continuing to erect any new developments or structures or farming on that portion of North Ugenya/Sega/12 that was found to be under his possession following the Land Registrar's and Surveyor's boundary determination of 1st to 3rd August 2012 without the Plaintiff's consent or authority, pending the hearing and determination of this case.
  5. 5.The 1st Defendant to meet the Plaintiff's costs of the motion.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 159(2)(b) and (d)
  • Land Registration Act No. 3 of 2012Sections 18(2) and 19
  • Civil Procedure Act Chapter 21, Laws of KenyaSection 1A

Cases cited (2)

  • Owners of Motor Vessel Lilian "S" vs Caltex Oil (Kenya) Ltd
    (1989) KLRI
  • Willis Ochola (Ocholla) vs Mary Ndege
    [2016] eKLR
Jurisdiction invoked
Articles 159(2)(b) and (d) and 165 of the Constitution 2010; Sections 18 and 19 of the Land Registration Act No. 3 of 2012; Section 1A of the Civil Procedure Act (Chapter 21, Laws of Kenya)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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 Opondo Omalla v Gabriel Ochong Oriwo & another [2019] KEELC 2859 (KLR)", Case Analysis (2019). ELC Suit (plaint dated 18th December 2018) - Siaya; notice of motion dated 18th December 2018 and Preliminary Objection dated 13th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2859/eng@2019-06-26

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