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ELCStruck Out· [2019] KEELC 4740 (KLR)

Munywoki Musuva Ngao v Mutua Mbinda & another [2019] KEELC 4740 (KLR)

Environment and Land Court
7 February 2019
CMC.G. MBOGO
1,519 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 suit because the owner never first resolved the boundary dispute through the Land Registration Act process.

What this practically means

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Executive summary

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The court ruled on a notice of preliminary objection dated 17th August 2018 filed by the 1st and 2nd Defendants in a suit by the Plaintiff claiming encroachment on land parcel Okia/Kilala/661 by occupants of Okia/Kilala/714. The Defendants argued that the real dispute was a boundary dispute requiring compliance with sections 18 and 19 of the Land Registration Act before approaching the court; that the verifying affidavit contained a falsehood since document number 3, a County Surveyor's boundary report addressed to the Principal Magistrate Makueni, presupposed previous proceedings; and that the Defendants were non-suited because Okia/Kilala/714 was registered in the name of a deceased person, Paul Mbinda Musyoki, so any orders would affect a deceased person's land. The Plaintiff opposed, relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd via AKN v JNM, submitting the objections raised questions of fact requiring evidence. The court held that the pleadings and document number 3 showed this was a boundary dispute; section 18(2) of the Land Registration Act is couched in mandatory terms and bars the court from entertaining boundary disputes unless boundaries are first determined under the Act. It further found the verifying affidavit contradicted by the surveyor's report, and agreed the Defendants were non-suited as orders would affect a deceased person's land and be rendered in vain. The preliminary objection was upheld and the Plaintiff's suit struck out with costs to the Defendants.

Key legal issues

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01

Whether the suit is barred as an unresolved boundary dispute

Holding

Yes; the suit is a boundary dispute and Section 18(2) of the Land Registration Act mandatorily requires prior boundary determination before the court entertains it

Reasoning

The pleadings and document number 3 in the Plaintiff's list of documents show the real dispute is the ground boundary between Okia/Kilala/661 and Okia/Kilala/714. Section 18(2) is couched in mandatory terms, so the court cannot entertain the action unless the boundaries have been determined in accordance with that section.

p. 2
02

Whether the Defendants are properly sued

Holding

No; parcel Okia/Kilala/714 is registered in the name of a deceased person and orders against it would be in vain unless the Defendants are sued as legal representatives of the estate

Reasoning

The neighbouring parcel is registered in the name of Paul Mbinda Musyoki, deceased. To sue the Defendants, the Plaintiff had to invoke the law to move against them in their capacity as legal representatives of the estate. As filed, any orders would affect a deceased person's land and be rendered in vain.

p. 2
03

Whether the verifying affidavit was vitiated

Holding

The affidavit's paragraph 4 contradicted document number 3, which presupposed previous proceedings before the Principal Magistrate Makueni in 2017

Reasoning

Document number 3, a report from the County Surveyor addressed to the Principal Magistrate Makueni, presupposed a previous case concerning the parties before this suit was instituted, contradicting the deposition that there were no pending or previous proceedings touching on the subject issues.

p. 2

Legal principles established

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  • A court shall not entertain any action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with section 18 of the Land Registration Act
  • Section 18(2) of the Land Registration Act is mandatory and bars the court from entertaining an unresolved boundary dispute

Court orders

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  1. 1.The Plaintiff's suit is struck out
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Land Registration ActSections 18 and 19 (particularly 18(2))
  • Oaths and Statutory Declarations ActGeneral provisions on perjury

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd
    [1969] EA 696
  • AKN V JNM
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court; suit relating to boundaries of registered land under the Land Registration Act No. 3 of 2012

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, "Munywoki Musuva Ngao v Mutua Mbinda & another [2019] KEELC 4740 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4740/eng@2019-02-07

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