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ELCStruck OutNot stated in the judgment· [2019] KEELC 3357 (KLR)

Edward Lilumbi & 3 others v Diphina Ahembelwa & 6 others [2019] KEELC 3357 (KLR)

Environment and Land Court
23 May 2019
1,387 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 struck out a land boundary suit because the Land Registrar, not the court, must first fix undetermined boundaries.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Bungoma, delivered by Olao J on 23rd May 2019, dealt with a preliminary objection dated 14th June 2018 raised by the 1st, 3rd, 6th and 7th defendants challenging the plaintiffs' locus standi under Section 37 of the Trustee Act. Before addressing that objection, the court raised, suo motu, the question of its own jurisdiction. The plaintiffs, by plaint filed on 10th March 2016, sought an order directing the Land Registrar and District Surveyor Kakamega to fix boundaries between parcels ISUKHA/SHIRERE/2168, 2169 and 2217, and a permanent injunction against interference with parcel 2168, alleging trespass in 2014 and undelineated boundaries. The court held that jurisdiction is donated by the constitution or written law and may be determined suo motu at any stage, applying Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd and Owners & Masters of the Motor Vessel 'Joey'. On the pleadings, the dispute was plainly a boundary dispute over registered land; Section 18(2) of the Land Registration Act 2012 ousts the court's jurisdiction until boundaries have been determined under that section. Following Wamutu v Kiarie, the court held that earlier consent orders of 23rd May 2016 referring the matter to the County Land Registrar and Surveyor had been made in excess of jurisdiction, and even after the site visit the boundaries remained undetermined. Holding that it had no jurisdiction, the court struck out the suit with no order as to costs, without determining the pending preliminary objection on locus standi.

Key legal issues

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01

Whether the court had jurisdiction to determine the boundary dispute

Holding

The court had no jurisdiction because the plaintiffs' own pleadings showed the dispute was a boundary dispute over registered land whose boundaries had not been determined under Section 18 of the Land Registration Act 2012; the suit was struck out.

Reasoning

Jurisdiction is donated by the constitution or written law and any orders made without jurisdiction are a nullity. Section 18(2) of the Land Registration Act 2012, like the former Section 21(4) of the Registered Land Act considered in Wamutu v Kiarie, ousts the court's jurisdiction over boundary disputes until the boundaries have been determined by the Land Registrar. The surveyor's report of 13th July 2016 showed the boundaries could not be established, so the statutory precondition was unmet. The court raised the issue suo motu.

p. 3
02

Whether the court could determine jurisdiction even though it was not pleaded, and before the pending preliminary objection on locus standi

Holding

Yes. Jurisdiction is a threshold impediment the court must resolve before proceeding, whether or not pleaded, and it may act suo motu.

Reasoning

Relying on Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd and Owners & Masters of the Motor Vessel 'Joey' v Owners & Masters of the Motor Tug 'Barbara and Steve b', the court held that a question of jurisdiction must be decided right away on the material before it, however scanty, and that nothing prevents a court from raising and determining jurisdiction suo motu at any stage. It therefore decided jurisdiction before the locus standi objection.

p. 2
03

Effect of the earlier consent orders of 23rd May 2016 referring the matter to the County Land Registrar and Surveyor

Holding

Those orders were made in excess of jurisdiction, but the court could not sit in appeal over orders of a court of equal and concurrent jurisdiction, and those orders were not before it.

Reasoning

Following Wamutu v Kiarie, the referral orders of Kibunja J of 23rd May 2016 were ultra vires because the statute had clothed the Land Registrar and Surveyor, not the court, with jurisdiction over boundary determination. Nevertheless, even after the site visit, the officials were unable to fix the boundaries, confirming the jurisdictional bar. The court expressly declined to treat the matter as an appeal against those orders.

p. 3

Legal principles established

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  • Jurisdiction is donated by the constitution or written law, and orders made without jurisdiction are a nullity
  • A court may raise and determine the issue of its own jurisdiction suo motu at any stage of the proceedings
  • Under Section 18(2) of the Land Registration Act 2012, a court has no jurisdiction to entertain boundary disputes over registered land unless the boundaries have first been determined in accordance with that section

Court orders

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  1. 1.The suit is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Trustee ActSection 37
  • Land Registration Act 2012Section 18(2)
  • Registered Land Act (repealed)Section 21(4)

Cases cited (3)

  • OWNERS OF MOTOR VESSEL “LILLIAN S” v. CALTEX OIL KENYA LTD
    1989 KLR 1
  • OWNERS & MASTERS OF THE MOTOR VESSEL “JOEY” v. OWNERS & MASTERS OF THE MOTOR TUG “BARBARA AND STEVE b”
    2008 1 E.A 367
  • WAMUTU v. KIARIE
    1982 KLR 480
Jurisdiction invoked
Section 18(2) of the Land Registration Act 2012 (ouster of court jurisdiction over boundary disputes); court acting suo motu on jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Edward Lilumbi & 3 others v Diphina Ahembelwa & 6 others [2019] KEELC 3357 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3357/eng@2019-05-23

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