Kisumu Yacht Club Registered Trustees v County Government of Kisumu & another [2021] KEELC 832 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a titled property with surveyed boundaries can sue for trespass, so Kisumu Club's demolished-wall case will now be heard on its merits.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over boundary disputes under Section 18(2) of the Land Registration Act
The suit was not a boundary dispute; the boundary had been fixed by survey, so the trial court had jurisdiction.
The court held that the bar in section 18(2) applies only where boundaries have not been fixed. The appellant held a title and the parcel was covered by an Area Registry Index Map, and surveys had confirmed the position of the boundary. The claim was premised on trespass, encroachment, injunction and damages, which only the court could determine, not the Land Registrar.
Whether an advocate's practising certificate is a question of law or fact
It is a question of law; an advocate without a current practising certificate is not qualified to practise.
Relying on the Advocates Act provisions and the Geoffrey Orao Obura v Martha Karambu Koome authority cited by the respondents, the court agreed that qualification to practise is governed by section 9 of the Advocates Act, whose provisions are mandatory and a matter of law, not fact.
Admissibility of new evidence on appeal
The court allowed the new evidence (City Manager's approval, survey report and photographs) applying the Ladd v Marshall principles.
The court had already allowed the appellant's application to adduce new evidence and, applying the principles in Mzee Wanjie v Saikwa as per Ladd v Marshall, found the City Manager's approval of the boundary wall construction, the survey report and photographs relevant and apparently credible to the appellant's case.
Whether the appeal should be allowed
The appeal was allowed; the striking-out order was reversed and the suit remitted for hearing on merit before a different magistrate.
Since the trial magistrate had jurisdiction and wrongly upheld the preliminary objection, the striking out of the suit was unsustainable. The court allowed the appeal, remitted the matter for hearing on merit and directed that it be heard by a magistrate other than the one who conducted the proceedings, with costs of the appeal to the appellant.
Legal principles established
#- Section 18(2) of the Land Registration Act only ousts the court's jurisdiction over boundary disputes where the boundaries have not been fixed; where a parcel has a title and an Area Registry Index Map, the boundaries are fixed and the court may entertain a trespass claim.
- Claims premised on trespass and encroachment, including claims for injunction and damages for demolition, fall within the court's jurisdiction and cannot be referred to the Land Registrar.
Court orders
#- 1.The appeal is allowed.
- 2.The ruling of the trial magistrate striking out the plaintiff's suit is set aside.
- 3.The matter is remitted back to the trial court to hear the suit on merit.
- 4.The suit to be heard by a Magistrate other than the one who conducted the proceedings.
- 5.Costs of the appeal to the appellant.
- On appeal from
- Magistrates' Court (Kisumu)
- Jurisdiction invoked
- Statutory first appeal to the Environment and Land Court; dispute arising under Section 18(2) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisumu Yacht Club Registered Trustees v County Government of Kisumu & another [2021] KEELC 832 (KLR)", Case Analysis (2021). Appeal against Ruling and Order delivered on 6th November 2019 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/832/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.