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ELCOtherNot stated in the judgment· [2021] KEELC 623 (KLR)

Peter Aguko Abok v Agness Auma Okello & 2 others [2021] KEELC 623 (KLR)

Environment and Land Court
24 November 2021
AOAntony Ombwayo
1,220 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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This is a ruling of the Environment and Land Court at Kisumu (Ombwayo J) on an interlocutory application dated 21 July 2021 in which the applicant, the registered proprietor of KISUMU/WATHOREGO/3624, sought a temporary injunction restraining the respondents from trespassing on, occupying, or interfering with the suit property pending hearing of the suit. The applicant averred that on 14 July 2021 the respondents began accumulating timber and assorted materials on a portion of his land, allegedly with the permission of the 1st Respondent who had leased the portion to the 2nd Respondent without his consent. The 1st Respondent, Agnes Auma Okello, conceded the applicant's ownership of parcel 3624 but asserted that the disputed portion formed part of KISUMU/WATHOREGO/1, which she had subdivided into three parcels; she maintained that the dispute was a boundary dispute reserved under Section 18 of the Land Registration Act to the Land Registrar in liaison with the Land Surveyor. The court found that the applicant is the registered proprietor of 3624, which borders parcels 5657 and 5658 subdivided from KISUMU/WATHOREGO/1; the 1st Respondent sold a portion to Beth Achieng Omolo, registered owner of 5658 though she occupies 5657, and the portion claimed by the plaintiff appears to be 5658. Concluding that the available evidence could not establish trespass, the court declined to grant the injunction, instead directing the County Land Registrar and Regional Surveyor Kisumu to establish the extent and occupation of the three parcels within 30 days and file a report, and ordering that the status quo be maintained in the meantime. No costs order was made.

Key legal issues

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01

Whether a temporary injunction should issue to a registered proprietor alleging trespass

Holding

The court declined to grant the injunction because the evidence could not establish that the respondents had trespassed onto the applicant's parcel; the disputed portion was one of two adjacent parcels (KISUMU/WATHOREGO/3624 or KISUMU/WATHOREGO/5658) whose boundaries required official determination.

Reasoning

The applicant is the registered owner of KISUMU/WATHOREGO/3624, a subdivision of KISUMU/WATHOREGO/2, which bordered KISUMU/WATHOREGO/1 (owned by the 1st Respondent and subdivided into three parcels including 5657 and 5658). The 1st Respondent sold a portion to Beth Achieng Omolo, registered owner of 5658 though she occupies 5657. The portion the plaintiff claims is 5658. Given this factual uncertainty about which parcel is being occupied, the evidence could not establish trespass at the interlocutory stage, and a boundary determination was the appropriate course.

p. 2
02

Whether the court lacks jurisdiction over the dispute by virtue of Section 18 of the Land Registration Act

Holding

The 1st Respondent argued that a boundary dispute between the parcels is reserved to the Land Registrar in liaison with the Land Surveyor; the court in effect adopted that course by directing the County Land Registrar and Regional Surveyor to determine the extent and occupation of the three parcels.

Reasoning

The 1st Respondent contended that the plaintiff feigned knowledge of his boundaries and that the dispute concerned parcels subdivided from KISUMU/WATHOREGO/1, not the plaintiff's parcel. Rather than pronouncing definitively on jurisdiction at the interlocutory stage, the court adopted the statutory boundary-determination mechanism by directing the Land Registrar and Regional Surveyor to establish the extent of the three parcels and who occupies them, within 30 days, and ordered maintenance of the status quo meanwhile.

p. 2

Legal principles established

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  • Where a dispute over adjoining parcels turns on the location of boundaries, the evidence before an interlocutory court may be insufficient to establish trespass, and the boundary question is one for the Land Registrar in liaison with the Land Surveyor under Section 18 of the Land Registration Act

Court orders

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  1. 1.That the County Land Registrar Kisumu County accompanied by the Regional Surveyor Kisumu County visit the two parcels of land and establish the extent of KISUMU/WATHOREGO/5658, KISUMU/WATHOREGO/5657 and KISUMU/WATHOREGO/3624 and who occupies the three parcels, within 30 days from the date of the ruling
  2. 2.That a report be filed within the same period of 30 days
  3. 3.That in the meantime, the status quo to be maintained

Authorities

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Legislation

  • Land Registration ActSection 18
Jurisdiction invoked
Environment and Land Court jurisdiction; respondents contested it by invoking Section 18 of the Land Registration Act (boundary dispute reserved to the Land Registrar)

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, "Peter Aguko Abok v Agness Auma Okello & 2 others [2021] KEELC 623 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/623/eng@2021-11-24

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