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ELCOtherNot stated in the judgment (E&L Suit, Busia)· [2019] KEELC 5058 (KLR)

Ernest Aura Ejakait v Christantus Osamai & 3 others [2019] KEELC 5058 (KLR)

Environment and Land Court
28 May 2019
763 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 ruled that land suits seeking injunctions, damages or mesne profits belong before the court, not just the Land Registrar.

What this practically means

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Executive summary

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The Defendants raised a preliminary objection on a notice dated 20/11/2017 contending that the court lacked jurisdiction because the dispute was a boundary matter within the province of the County Land Registrar and County Surveyor under Section 18(2) of the Registration of Land Act, who should visit the land, demarcate the boundary and file a report. The Plaintiff, the registered owner of LR TESO/AMUKURA/327, had sued the Defendants, residing on adjacent parcels, for entering his land and cutting trees, ploughing and planting crops, and sought a permanent injunction, reinstatement of boundaries and mesne profits. The Defendants' defence had admitted the court's jurisdiction at paragraph 9 while denying the cause of action. The court held the objection untenable: the defence's admission and later denial of jurisdiction amounted to 'double-speak'; the facts were contested so the objection could not be a pure point of law (applying Mukisa Biscuit and Muiruri, and the authorities cited by the Plaintiff); and the reliefs sought, particularly injunction, damages and mesne profits, involved judicial discretion and could only be granted by a court, not a Land Registrar or Surveyor. The preliminary objection was dismissed with costs. The main suit remains pending for trial.

Key legal issues

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01

Jurisdiction over suits involving boundary issues and claims for injunction, damages and mesne profits

Holding

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.

Reasoning

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.

p. 2
02

Whether the objection was a competent preliminary objection

Holding

It was not, since the defence denied the Plaintiff's claim and thus disputed the facts, and had itself admitted jurisdiction in its defence.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The preliminary objection is dismissed with costs

Authorities

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Legislation

  • Registration of Land ActSection 18(2)

Cases cited (4)

  • NJOYA & 6 others Vs AG & Another
    (2004) IKLR 232
  • SIRMA Vs KIPRONO
    (2005) IKLR 197
  • MUKISA BISCUIT CO. LTD Vs WEST END DISTRIBUTORS LTD
    [1969] EA 196
  • MUIRURI Vs KIMEMIA
    [2002] KLR 677
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.