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ELCOtherNot stated in judgment (Plaint dated 1st August 2019)· [2020] KEELC 335 (KLR)

Cyrus Munuhe Mwaniki & another v County Land Registrar, Laikipia & another; Francis Gihaiga Gachago & another (Interested Parties) [2020] KEELC 335 (KLR)

Environment and Land Court
11 December 2020
1,663 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs sued by Plaint dated 1st August 2019 seeking declarations that the District Land Registrar's report and findings (Report 'A') over the boundaries of Gituamba/Muhotetu Block 2 parcels 463, 417, 415 and 416 were inconsistent with Sections 16(1) and (2) of the Land Registration Act, 2012 and were null and void; an order compelling the Registrar to place beacons on the correct boundary line per the Registry Index Map; and removal of structures and live fences standing on the boundary. Following a boundary dispute, the District Surveyor conducted a grounds survey on or about 6th June 2019, and the Land Registrar determined the dispute, directing the beacons to be moved. The aggrieved Plaintiffs procured a private surveyor's report dated 11th July 2019. The 1st and 2nd Interested Parties, proprietors of parcels 415 and 416, raised a preliminary objection contending the suit was a boundary dispute over which the Court lacked jurisdiction, since the proper remedy was an appeal against the Registrar's decision under paragraph 40(6) of the Land Registration and General Regulations, 2017, relying on Secretary County Public Service v Hulbhai Gedi Addille. The Plaintiffs opposed, citing Railey Services, and argued no formal notice of preliminary objection had been served. Applying Mukisa Biscuits, Quick Enterprises and Avtar Singh Bhamra, the court held the objection to be a pure point of law but found that, under Section 86(1) of the Land Registration Act and Section 13 of the Environment and Land Court Act, the Court could entertain a review or appeal from the Registrar's determination. The objection was dismissed with costs to the Plaintiffs. The suit itself was not determined; the court did not at this stage declare the suit incompetent.

Key legal issues

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01

Whether the suit, founded on a boundary dispute already determined by the Land Registrar, is properly before the Court by way of Plaint

Holding

The preliminary objection fails. Having regard to Section 86(1) of the Land Registration Act, 2012 and Section 13 of the Environment and Land Court Act, the Court may entertain a review of or appeal from the Land Registrar's decision, and the Plaint was not fatally incompetent for that reason alone.

Reasoning

The court found it undisputed that a boundary dispute arose and that the Land Registrar determined it on 6th June 2019, directing beacons to be moved. A preliminary objection on jurisdiction, per Mukisa Biscuits, must be a pure point of law. The court reasoned that once the Registrar made his decision, the only avenue of challenge was akin to proceedings under Section 149 of the repealed Registered Land Act, now Section 86(1) of the Land Registration Act, 2012, which allows any aggrieved person to state a case. The Registrar had observed due process, so the Court could consider a review or appeal. The objection therefore lacked merit and was dismissed with costs.

p. 3

Legal principles established

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  • A proprietor or aggrieved person may challenge a Land Registrar's boundary decision by stating a case for the opinion of the Court under Section 86(1) of the Land Registration Act, 2012
  • On boundary disputes over registered land, the Court has jurisdiction only after the Land Registrar's determination

Court orders

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  1. 1.The Preliminary Objection by the Interested Parties is dismissed with costs to the Plaintiffs

Authorities

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Legislation

  • Land Registration ActSections 16(1) and (2)
  • Land Registration ActSection 18(2)
  • Land Registration ActSection 86(1)
  • Land Registration and General RegulationsParagraph 40(6)
  • Registered Land Act (repealed)Section 149
  • Environment and Land Court ActSection 13

Cases cited (6)

  • Secretary County Public Service & Another vs Hulbhai Gedi Addille
    [2017] eKLR
  • Republic vs. Chief Registrar of the Judiciary & 2 Others ex parte Railey Services Limited
    [2015] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd – v- West End Distributors Limited
    (1969) EA. 696
  • Quick Enterprises Ltd. vs. Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Wamutu vs. Kiarie
    [1982] KLR 480
Jurisdiction invoked
Land Registration Act, 2012 and Environment and Land Court 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, "Cyrus Munuhe Mwaniki & another v County Land Registrar, Laikipia & another; Francis Gihaiga Gachago & another (Interested Parties) [2020] KEELC 335 (KLR)", Case Analysis (2020). Not stated in judgment (Plaint dated 1st August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/335/eng@2020-12-11

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