Ernest Aura Ejakait v Christantus Osamai & 3 others [2019] KEELC 5058 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that land suits seeking injunctions, damages or mesne profits belong before the court, not just the Land Registrar.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over suits involving boundary issues and claims for injunction, damages and mesne profits
The court has jurisdiction; the objection under Section 18(2) of the Registration of Land Act fails because the suit is not purely a boundary dispute and the reliefs sought (injunction, damages, mesne profits) are matters reserved to the court.
The Plaintiff pleaded trespass, damage and loss, and sought a permanent injunction, mesne profits and reinstatement of boundaries. An injunction involves judicial discretion, and no Land Registrar or County Surveyor can grant damages or mesne profits. The objection was therefore misconceived and lacking in merit.
Whether the objection was a competent preliminary objection
It was not, since the defence denied the Plaintiff's claim and thus disputed the facts, and had itself admitted jurisdiction in its defence.
The defence filed on 18/7/2017 admitted jurisdiction at paragraph 9, yet later raised the objection without amending the defence. The court described this as double-speak. Since facts were contested, the objection could not rest on a pure point of law, per Njoya and Sirma, and Mukisa Biscuit.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot be raised where facts are contested or where the determination involves the exercise of discretion.
- Only a court of law can grant damages or mesne profits; a Land Registrar or County Surveyor cannot.
Court orders
#- 1.The preliminary objection is dismissed with costs
- Jurisdiction invoked
- Constitutional and statutory provisions conferring jurisdiction on the Environment and Land Court over land disputes; objection premised on Section 18(2) of the Registration of Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Aura Ejakait v Christantus Osamai & 3 others [2019] KEELC 5058 (KLR)", Case Analysis (2019). Not stated in the judgment (E&L Suit, Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5058/eng@2019-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.