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ELCDismissedELC 882 of 2015 (Formerly HCC No. 140 of 2010)· [2020] KEELC 2930 (KLR)

George Timothy Opande v Ezekiel M. Okemwa & 2 others [2020] KEELC 2930 (KLR)

Environment and Land Court
27 April 2020
AOA.O. Ombwayo
2,153 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 dismissed a trespass suit, ruling boundary disputes must first go to the Land Registrar under Section 18 of the Land Registration Act.

What this practically means

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Executive summary

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The plaintiff, the registered proprietor of Kisumu/Konya/36 on which Rita Hotel stands, sued alleging that the 1st Defendant, with unscrupulous lands officials, fraudulently caused plot Kisumu/Konya/34 to be inserted on the Registry Index Map between his parcel and Kisumu/Konya/24, and that the 2nd Defendant, who purchased from the 1st Defendant in 2010, fenced off and erected a structure on part of his land. He sought eviction, a permanent injunction, a declaration that the RIM amendment was null and void, general and exemplary damages, and mesne profits. The 1st Defendant denied the fraud, asserting he owned parcel 34 since 1991 and sold it before suit; the purchasers (who gave evidence) denied any illegality and asserted their own occupation. The court framed two issues: whether a cause of action existed against the 1st Defendant, and whether the dispute was in substance a boundary dispute. It found the 1st Defendant had transferred his interest and ceased possession before the plaint was filed, so the action against him was a non-starter. On the second issue, the court noted the Land Registrar's reports and the court-ordered ground survey, and applying Section 18 of the Land Registration Act, 2012, held that ascertainment of boundaries is the Registrar's statutory function; the trespass claim could not be entertained until the boundaries of parcels 24, 33, 34, 35 and 36 were determined. The suit was dismissed with costs, delivered electronically under the COVID-19 directives.

Key legal issues

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01

Whether a cause of action was established against the 1st Defendant

Holding

No cause of action against the 1st Defendant, who had sold and transferred the property and ceased possession before the suit was filed

Reasoning

The 1st Defendant sold the property on 4/6/2010 before the plaint was filed on 2/9/2010. Having transferred his interest to a third party and vacated possession, no claim could lie against him personally. The court characterised the action against him as a non-starter and found no cause of action established against him.

p. 3
02

Whether the dispute is a boundary dispute reserved for the Land Registrar under Section 18 of the Land Registration Act, 2012

Holding

Yes - the dispute is a boundary dispute that must first be determined by the County Land Registrar, and the court cannot entertain the trespass claim until that is done

Reasoning

The court noted the Land Registrar's findings that the parcels were adjudicated and registered in 1991, that the RIM indicated parcel 36 bordering parcel 24 to the South and parcel 34 bordering 36 to the South West, and that the District Land Adjudication Officer indicated the parcels were exchanged/swapped. Relying on Section 18 of the Land Registration Act, the court held that ascertaining boundaries is the Registrar's duty, not the court's, and the trespass claim was premature.

p. 3

Legal principles established

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  • Where parcel boundaries are not fixed in the register, the court cannot entertain boundary disputes; ascertainment of boundaries is the function of the Land Registrar under Section 18 of the Land Registration Act, 2012
  • A claim of trespass on registered land cannot be litigated before the boundaries of the parcels in question have been determined by the Land Registrar
  • No cause of action lies against a defendant who transferred his interest and ceased possession before the suit was filed

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Land Registration ActSection 18(1), (2) and (3)
  • Survey ActCap. 299
  • Physical Planning ActCap. 286
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Articles 162(2)(b) and 165(5) jurisdiction, as established under the Environment and Land Court Act); the court declined jurisdiction over the boundary dispute under Section 18 of the Land Registration Act, 2012

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, "George Timothy Opande v Ezekiel M. Okemwa & 2 others [2020] KEELC 2930 (KLR)", Case Analysis (2020). ELC 882 of 2015 (Formerly HCC No. 140 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2930/eng@2020-04-27

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