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ELCStruck OutNot stated in the judgment (Plaint dated 26th July 2017)· [2020] KEELC 1230 (KLR)

Tsuwi Mkare Tsuwi v Alex Nzaro Chai [2020] KEELC 1230 (KLR)

Environment and Land Court
25 September 2020
JOJ.O. Olola
1,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land claim because a Minister's final decision on land adjudication cannot be challenged in a fresh lawsuit.

What this practically means

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Executive summary

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By a Plaint dated 26th July 2017, the Plaintiff sued the Defendant seeking restoration of approximately 2½ acres of land allegedly held under a traditional boundary, amendment of the Registry Index Map for Plot Nos. Kilifi/Kadzonzo/Madzimbani/13 and /14, issuance of title to himself, mesne profits, costs and interest. He contended that both families' parents had accumulated 7 acres, but during the 2010–2011 adjudication the Defendant fraudulently registered himself as sole proprietor. The Defendant denied the claim and filed a preliminary objection dated 22nd October 2018 arguing that the suit offended Sections 18(1) and (2) of the Land Registration Act, 2012 and Sections 20, 21, 22, 26 and 29 of the Land Adjudication Act, and that the Court lacked jurisdiction. The Court noted that the Kadzonzo/Madzimbani area was declared an adjudication area in 2007; the Plaintiff's objection was dismissed by the Land Adjudication Officer on 7th January 2012; his appeal to the Minister in Appeal Case No. 11 of 2015 was dismissed on 4th May 2017; and he filed this suit two months later, raising substantially the same claims. Holding that Section 29(1) of the Land Adjudication Act makes the Minister's order final and that the Legislature did not intend failed parties before the Ministerial Panel to approach the Court afresh, and that any boundary claim is barred by Section 18(2) of the Land Registration Act until boundaries are fixed under Sections 16 and 19, the Court upheld the preliminary objection, struck out the Plaintiff's suit with costs to the Defendant.

Key legal issues

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01

Jurisdiction over claims arising from a concluded land adjudication process

Holding

The Court has no jurisdiction to re-open ownership of land already determined through the objection and Ministerial appeal machinery under the Land Adjudication Act

Reasoning

The Kadzonzo/Madzimbani area was declared an adjudication area in 2007. The Plaintiff's objection was dismissed on 7th January 2012 and his appeal to the Minister in Appeal Case No. 11 of 2015 was dismissed on 4th May 2017. Section 29(1) makes the Minister's order final. The Plaintiff filed this suit two months later, claiming the same relief. The Legislature did not intend failed parties before the Ministerial Panel to approach the Court afresh.

p. 2
02

Bar on boundary disputes under Section 18(2) of the Land Registration Act

Holding

Even if the claim were framed as a boundary dispute, the Court cannot entertain it until the boundaries are fixed under Sections 16 and 19 of the Land Registration Act

Reasoning

The Plaintiff sought restoration of a traditional boundary, which falls squarely within the Section 18 bar. Section 18(2) forbids courts from entertaining claims on boundaries that have not been fixed in accordance with Sections 16 and 19. No such fixation was shown, so the suit was bad in law on this ground as well.

p. 2

Legal principles established

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  • Once the Minister determines an appeal under Section 29(1) of the Land Adjudication Act, that determination is final and a party cannot re-litigate the same ownership dispute before the Environment and Land Court
  • A court cannot entertain a boundary dispute under Section 18(2) of the Land Registration Act unless and until the boundaries have been fixed as required under Sections 16 and 19 of that Act

Court orders

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

Authorities

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Legislation

  • Land Registration ActSections 16, 18(1), 18(2), 19
  • Land Adjudication Act (Cap 284)Sections 5, 20, 21, 22, 26, 29(1)
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act, 2012 and the Land Adjudication Act (Cap 284); objection raised on Section 18(1) and (2) of the Land Registration Act and Sections 20, 21, 22, 26 and 29 of the Land Adjudication 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, "Tsuwi Mkare Tsuwi v Alex Nzaro Chai [2020] KEELC 1230 (KLR)", Case Analysis (2020). Not stated in the judgment (Plaint dated 26th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1230/eng@2020-09-25

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