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ELCOther· [2019] KEELC 3911 (KLR)

Hon. Henry Kosgey v Brian Cuthbert & another [2019] KEELC 3911 (KLR)

Environment and Land Court
3 April 2019
AOA. Ombwayo
710 words in judgment
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The bottom line

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In boundary disputes over registered land in Kenya, the Land Registrar must fix the boundaries first before the Environment and Land Court can hear your ownership or eviction claim.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R. 7914/89 (original 7914/6), sought a declaration of ownership and an order of eviction against the 1st defendant, registered proprietor of Eldoret Municipality Block 28/82 and Block 28/83, and the 2nd defendant, owner of Block 28/485. The 1st defendant had also filed a preliminary objection alleging the suit was premature, misconceived, vexatious and an abuse of process; the defendants denied trespass and characterised the matter as a boundary dispute for the Land Registrar. The court found that nobody was seeking to take the suit land from the plaintiff, and that the real issue was the ascertainment of the boundaries of the four parcels. Although the Environment and Land Court has jurisdiction over boundary disputes under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, that jurisdiction is qualified by section 18(2) of the Land Registration Act, which bars the court from entertaining boundary disputes unless the boundaries have first been determined under that section. The court held the suit premature and stayed it pending determination of the boundaries by the County Land Registrar, Uasin Gishu. It ordered the County Land Registrar and County Land Surveyor to visit the suit lands and place, replace or confirm the beacons on all four parcels within 15 days, with survey costs shared by the parties on a pro rata basis. Judgment delivered at Eldoret on 3rd April 2019 by A. Ombwayo, Judge.

Key legal issues

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01

Prematurity of a land suit premised on an undetermined boundary dispute

Holding

The suit is premature and was stayed pending boundary determination by the Land Registrar

Reasoning

The court held that although the ELC has jurisdiction over boundary disputes under section 13 of the ELC Act, that jurisdiction is qualified by section 18(2) of the Land Registration Act, which bars the court from entertaining boundary disputes unless the boundaries have first been determined under that section. Since the boundaries of the plaintiff's and defendants' parcels had not been fixed or ascertained, the dispute was for the Land Registrar and Surveyor, not the court. The plaintiff's claim for declaration of ownership and eviction was therefore premature.

p. 1
02

Jurisdiction of the Environment and Land Court over land and boundary disputes

Holding

The court's jurisdiction under Article 162(2)(b) and the ELC Act extends to boundaries, but must be exercised in view of the Land Registration Act

Reasoning

The court traced the court's jurisdiction to Article 162(1) and (2)(b) of the Constitution and section 13 of the Environment and Land Court Act, which confers power to determine disputes relating to title, tenure, boundaries and land use. However, the court held that this statutory jurisdiction over boundary disputes must be considered in view of the Land Registration Act, which assigns initial boundary determination to the Registrar. Jurisdiction is therefore conditioned on prior administrative boundary determination.

p. 2

Legal principles established

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  • A court shall not entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with section 18 of the Land Registration Act
  • A suit over land founded on an unresolved boundary dispute is premature before the Land Registrar determines the boundaries

Court orders

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  1. 1.The suit is stayed pending determination of the boundaries by the County Land Registrar Uasin Gishu
  2. 2.The County Land Registrar and County Land Surveyor Uasin Gishu to visit the suit lands and place, replace or confirm the beacons on L.R. 7914/89 (original 7914/6), Eldoret Municipality Block 28/829, Block 28/83 and Block 28/485 within the next 15 days
  3. 3.The parties to share survey costs on pro rata basis

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1)
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13 (Jurisdiction of the Court)
  • Land Registration ActSection 18(1), (2), (3)
  • Survey ActCap 299; section 19(3) proviso
Jurisdiction invoked
Article 162(1) and 162(2)(b) of the Constitution; Environment and Land Court Act, section 13

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Hon. Henry Kosgey v Brian Cuthbert & another [2019] KEELC 3911 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3911/eng@2019-04-03

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