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ELCStruck Out· [2019] KEELC 2955 (KLR)

Cornelius Sylvano Muchilwa & 3 others v Kenya National Highways Authority [2019] KEELC 2955 (KLR)

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

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Kenyan landowners must take road boundary disputes to the Land Registrar first, or courts will strike out their suits.

What this practically means

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Executive summary

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The Plaintiffs, suing personally and in a representative capacity for residents of Luanda Township, sued the Kenya National Highways Authority over its intended expansion of the Kisian-Yala (Kisumu-Busia) Road, including eviction and demolition notices. The Defendant filed a preliminary objection dated 29 October 2018 arguing that the claim was essentially a boundary dispute between the Plaintiffs' parcels and the road reserve, which commenced in 2014 and had not been determined by the Land Registrar as required by Sections 18(2) and 19 of the Land Registration Act, 2012, and that the suit disclosed no reasonable cause of action and was an abuse of process. The court framed three issues: whether the objection raised proper points of law, whether the court had jurisdiction, and costs. It found that although the plaint did not expressly plead a boundary dispute, prayer (a) for an injunction against interference with the Plaintiffs' parcels revealed a dispute over the ground position of the road. Under Section 18(2) of the Land Registration Act, the Land Registrar is the first forum for boundary disputes, and the court's jurisdiction matures only after the Registrar's determination. Nothing in the pleadings showed such a determination, so jurisdiction was invoked prematurely. The court applied Willis Ochola v Mary Ndege and William Gacani Mbaria v Charles Kirimi Mbui, upheld the preliminary objection as a pure point of law, struck out the plaint and the notice of motion dated 17 August 2018 with costs.

Key legal issues

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01

Whether the preliminary objection raises a proper point of law

Holding

Yes - the objection that the court lacked jurisdiction over a boundary dispute pending before the Land Registrar is a pure point of law.

Reasoning

The court found the pleadings showed the real dispute was over the ground position of the road vis-à-vis the Plaintiffs' parcels, i.e. a boundary dispute. A preliminary objection on jurisdiction founded on Section 18(2) of the Land Registration Act, requiring the Land Registrar to first determine the boundary, is a pure point of law suitable for determination without evidence.

p. 2
02

Whether the court has jurisdiction to hear and determine the suit

Holding

No - jurisdiction was invoked prematurely because the Land Registrar had not determined the boundary dispute.

Reasoning

Although the plaint did not expressly plead a boundary dispute, prayer (a) seeking to restrain the Defendant from interfering with the parcels showed the dispute concerned the road reserve boundary. Section 18(2) bars the court from entertaining such disputes until the Land Registrar's determination. Nothing in the pleadings showed that determination had been made, so the suit was premature and the court was without jurisdiction.

p. 2

Legal principles established

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  • The Land Registrar is the first forum for resolution of boundary disputes under Section 18(2) of the Land Registration Act, and court jurisdiction matures only after the Registrar's determination.

Court orders

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  1. 1.The Defendant's preliminary objection dated 29 October 2018 is upheld.
  2. 2.The Plaintiffs' suit commenced through the plaint dated 17 August 2018 is struck out with costs.
  3. 3.The Plaintiffs' notice of motion dated 17 August 2018 is struck out with costs.

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19(1), (2) and (3)

Cases cited (2)

  • Willis Ochola vs Mary Ndege
    [2016] eKLR
  • William Gacani Mbaria vs Charles Kirimi Mbui
    [2018] eKLR
Jurisdiction invoked
Section 18(2) of the Land Registration Act, No. 3 of 2012 (bar on court jurisdiction over boundary disputes before determination by the Land Registrar)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Cornelius Sylvano Muchilwa & 3 others v Kenya National Highways Authority [2019] KEELC 2955 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2955/eng@2019-06-19

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