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ELCStruck OutNot stated in the judgment (Originating Summons dated 24th July 2018)· [2019] KEELC 3893 (KLR)

Maurice Omoro Oudu & 2 others v Kisumu District Land Registrar & 2 others [2019] KEELC 3893 (KLR)

Environment and Land Court
10 April 2019
SKS.M. Kibunja
1,010 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In Kenya, you must take land boundary disputes to the Land Registrar first — going straight to court gets your case struck out.

What this practically means

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Executive summary

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Elizabeth Atieno Ogeno, the 2nd Respondent, filed a preliminary objection seeking to strike out the Applicants' Originating Summons and notice of motion dated 24th July 2018, on the grounds that the Court lacked jurisdiction because the subject matter was a land boundary dispute which ought first to be exhausted before the Land Registrar under Section 18(2) of the Land Registration Act, that the suit was an abuse of process, and that the Interested Parties lacked locus standi. The Applicants, who claimed ownership of Kisumu/Kasule/1918, sought to declare void a boundary dispute settlement scheduled for 14th August 2018, to compel the Land Registrar to act on a Surveyor's advice on cadastral map errors, and to maintain the status quo. The Court held that Section 18(2) bars the Court from entertaining proceedings relating to boundaries of registered land unless the boundaries have first been determined in accordance with that section; the first forum for such a dispute is the Land Registrar, and the suit was prematurely filed to scuttle an exercise already commenced by the Land Registrar. The Court found it unnecessary to determine the Interested Parties' locus. Upholding the preliminary objection, the Court struck out the Originating Summons and notice of motion with costs to the 2nd Respondent, leaving the Land Registrar free to complete the boundary dispute resolution exercise.

Key legal issues

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01

Jurisdiction over boundary disputes of registered land

Holding

The Court lacks jurisdiction to entertain a suit relating to a boundary dispute of registered land before the Land Registrar has determined the boundaries under Section 18 of the Land Registration Act

Reasoning

Section 18(2) of the Land Registration Act bars the Court from entertaining proceedings relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with that section. The aim of the suit was to stop a boundary dispute exercise already commenced by the Land Registrar; the suit was therefore prematurely filed and the Land Registrar is at liberty to continue the exercise to completion, with any dissatisfied party free to move the court thereafter.

p. 2
02

Locus standi of the Interested Parties

Holding

The Court declined to determine the Interested Parties' locus since the suit failed on jurisdiction

Reasoning

The 2nd Respondent argued the Interested Parties had not demonstrated their interest and lacked locus standi. The Interested Parties asserted ownership of Kisumu/Kasule/1918. The Court found that because the suit was struck out for want of jurisdiction, there was no need to determine the question of locus.

p. 2

Legal principles established

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  • The first forum to deal with a boundary dispute of registered land is the Land Registrar, and the Court has no jurisdiction over such a dispute until the Land Registrar has made a determination

Court orders

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  1. 1.The 2nd Respondent's preliminary objection is upheld
  2. 2.The suit commenced through the Originating Summons dated 24th July 2018 is struck out
  3. 3.The notice of motion dated 24th July 2018 is struck out
  4. 4.Costs to the 2nd Respondent

Authorities

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Legislation

  • Land Registration ActSection 18(2) and 18(3)
Jurisdiction invoked
Land Registration Act No. 3 of 2012, Section 18(2)

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, "Maurice Omoro Oudu & 2 others v Kisumu District Land Registrar & 2 others [2019] KEELC 3893 (KLR)", Case Analysis (2019). Not stated in the judgment (Originating Summons dated 24th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3893/eng@2019-04-10

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