Lois K Keshinga v David Ole Nkedienye [2020] KEELC 2638 (KLR)

Environment and Land Court

23 April 2020

COChristine Ochieng

1,804 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~7 min to read original · ~4 min brief

The bottom line

A Kenyan court refused to stop alleged land trespass, ruling that boundary disputes must first be determined by the Land Registrar, not the courts.

What this practically means

Executive summary

The Plaintiff, Lois K Keshinga, moved the Environment and Land Court at Kajiado by Notice of Motion dated 21 February 2019 seeking an interim injunction restraining the Defendant, her younger brother David K. Ole Nkedianye, from trespassing on parcels Kajiado/Kitengela/53294, 53295 and 53296, an order for removal of his fence, structures and livestock, and an inspection by the Deputy Registrar. She deposed that the parcels were subdivided from land she jointly owned with her deceased husband, that the Defendant in 2017 orchestrated a purported re-survey by elders of the Kitengela Group Ranch without notice or representation, resulting in loss of approximately 67 acres. The Defendant denied trespass, asserting that a boundary error from the original Group Ranch subdivision was corrected through a properly noticed process involving the Group Ranch officials, Chief, Land Surveyor, Registrar and elders, and that the Plaintiff had encroached on his parcel. Only the Plaintiff filed submissions. The court framed a single issue: whether the interim injunction was warranted. It held that the real dispute was a boundary dispute governed by sections 18 and 19 of the Land Registration Act, which require determination by the Land Registrar before court action; no Registrar's report was availed. Applying Giella v Cassman Brown and Nguruman, the court found no prima facie case and declined to consider the remaining conditions. The application was effectively dismissed; the matter was referred to the District Land Registrar, Kajiado, status quo was ordered maintained pending determination of the suit, with costs in the cause.

Key legal issues

Whether the Plaintiff was entitled to an interim injunction against the Defendant

Holding

The application was refused. The court held the dispute was a boundary dispute requiring determination by the Land Registrar, and that the Plaintiff had not established a prima facie case under the Giella principles.

Reasoning

Both parties acknowledged the parcels' ownership, but their averments revealed a boundary dispute arising from errors in the original subdivision of Kitengela Group Ranch land. Sections 18 and 19 of the Land Registration Act vest boundary determination in the Registrar, and no report from the Land Registrar, Kajiado was availed. As the Plaintiff failed the first Giella condition, the remaining conditions were not considered; status quo was ordered instead.

p. 3

Legal principles established

Where a dispute as to the boundaries of registered land arises, the court shall not entertain proceedings relating to that dispute unless the boundaries have been determined under sections 18 and 19 of the Land Registration Act
If a prima facie case is not established, irreparable injury and balance of convenience need not be considered

Court orders

1.The matter is referred to the District Land Registrar, Kajiado for determination of the boundary in dispute
2.Status quo to be maintained, with each party remaining in the portion they occupy pending determination of the suit
3.Costs in the cause

Authorities

Legislation

Civil Procedure ActSections 1A, 1B, 3A, 63(e)
Civil Procedure RulesOrder 40 rules 1(c)(b), 2(1),(2), 3(1),(3), 4(1),(2),(3),(4), 10(a)(b)(c)
Environment and Land Court ActSections 3(1),(2),(3), 13(1),(7)(a)(c)(f)(g), 18(v), 19(1),(2)
Land Registration ActSections 18, 19
Survey ActCap. 299

Cases cited (2)

Giella Vs. Cassman Brown & Co. Ltd
(1973) EA 358
Nguruman Ltd v Jan Bonde Nelson & 2 others
Civil Appeal No.21 of 2014 (UR)

Jurisdiction invoked: Sections 3, 13, 18 and 19 of the Environment and Land Court Act; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lois K Keshinga v David Ole Nkedienye [2020] KEELC 2638 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2638/eng@2020-04-23

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