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ELCDismissedNot stated in judgment (suit between parties over NZAUI/NZIU/294 and NZAUI/NZIU/503)· [2020] KEELC 2616 (KLR)

Benson Muthoka Kimeu & another v Harrison Munyoki Kituu & 5 others [2020] KEELC 2616 (KLR)

Environment and Land Court
29 April 2020
CMC. G. Mbogo
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to send a land dispute to the Land Registrar because it involves enforcing an old land adjudication decision and compensation, not just a boundary.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on the 1st Defendant's Notice of Motion dated 11th June 2019, brought under Sections 18, 19 and 20 of the Land Registration Act, Section 3A of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules. The Applicant sought referral of the dispute over the boundary between parcels NZAUI/NZIU/294 and NZAUI/NZIU/503 to the Land Registrar Makueni, with a time frame for determination, arguing that the Land Registration Act requires boundary matters to be determined by the Land Registrar before courts entertain them. Counsel relied on Section 18(2) and three High Court authorities (Osula, Mpeshe and Ocholla) supporting the court's lack of jurisdiction over undetermined boundary disputes. The Plaintiffs opposed, contending the suit is not about the boundary itself but about implementation of the Adjudication Committee decision in Case No. Nziu/49/69 of 4th August 1970, and about compensation for destroyed crops and fruit trees - matters only the court can grant, since the Land Registrar cannot cancel or correct acreage in a title deed without a court order. The court agreed that although a boundary dispute existed, the amended plaint showed the Plaintiffs sought full implementation of the committee decision and compensation, matters beyond the Land Registrar's jurisdiction. Referral would serve no useful purpose. The application was dismissed with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether the suit is a boundary dispute attracting Section 18(2) of the Land Registration Act

Holding

Although the court had earlier observed a boundary dispute, the pleadings show the Plaintiffs seek implementation of the Adjudication Committee decision in Case No. Nziu/49/69 and compensation, so the application for referral fails

Reasoning

The court acknowledged its earlier observation that a boundary dispute existed, but examined the amended plaint dated 7th June 2018. That pleading showed the Plaintiffs' object was full implementation of the committee decision awarding them the land claimed by the Defendants, plus compensation for destroyed crops and fruit trees. These matters exceed the Land Registrar's statutory remit, so referral would serve no useful purpose and the application was dismissed with costs.

p. 3

Legal principles established

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  • Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes unless the boundaries have first been determined by the Land Registrar
  • Where the dispute concerns implementation of an adjudication committee decision and compensation for destroyed crops, and not merely a boundary, referral to the Land Registrar serves no purpose

Court orders

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  1. 1.The 1st Defendant's Notice of Motion dated 11th June 2019 seeking reference of the boundary dispute to the Land Registrar Makueni is dismissed
  2. 2.Costs of the application awarded to the Plaintiffs/Respondents

Authorities

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Legislation

  • Land Registration ActSections 18, 19, 20 (and 18(2))
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 50 Rule 1
  • Land Adjudication ActSection 29

Cases cited (3)

  • Herman Leo Osula vs. Robert Idewa Emoit
    [2018] eKLR
  • Amos Mpeshe & 3 others vs. Salau Ole Sokon Modo
    [2016] eKLR
  • Wills Ocholla vs. Mary Ndege
    [2016] eKLR
Jurisdiction invoked
Sections 18, 19 and 20 of the Land Registration Act; Section 3A of the Civil Procedure Act; Order 50 Rule 1 of the Civil Procedure Rules, 2010

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, "Benson Muthoka Kimeu & another v Harrison Munyoki Kituu & 5 others [2020] KEELC 2616 (KLR)", Case Analysis (2020). Not stated in judgment (suit between parties over NZAUI/NZIU/294 and NZAUI/NZIU/503). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2616/eng@2020-04-29

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