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ELCOtherNot stated in judgment (Kisumu Environment and Land Court suit filed 6th March 2014)

Janice Achieng Osawa (Suing as the administratix of the estate of Serfine Owiti Wandu) v Nura Ramadhan [2021] KEELC 854 (KLR)

Environment and Land Court
19 November 2021
AOANTONY OMBWAYO
2,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Kisumu confirmed it can hear trespass cases between neighbours whose boundaries are already officially determined.

What this practically means

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Executive summary

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The plaintiff sued the defendant on 6th March 2014 alleging trespass on LR NO. KISUMU/WATHOREGO/1212, seeking possession, a permanent injunction against trespass, an order compelling demolition and removal of structures, and costs. The defendant filed a notice of preliminary objection dated 11th March 2020 contending that the suit is a boundary dispute contrary to section 18(2) of the Land Registration Act, 2012, which ousts the Court's jurisdiction until the land registrar determines boundaries, relying on Willis Ocholla v Mary Ndege. The plaintiff countered that the dispute concerned ownership and trespass, not boundaries, and noted prior court orders directing the land registrar and surveyor to visit the parcels. Antony Ombwayo J framed the sole issue as whether the suit offends section 18(2) of the Land Registration Act. Examining the pleadings and a Survey of Kenya map, the Court found that the boundaries of LR NO. KISUMU/WATHOREGO/1212 and 1211 had already been identified and determined, and that the consent orders for the registrar and surveyor were meant to guide the Court on existing boundaries, not create or fix new ones. The suit was held to be one for trespass and encroachment, within the Court's jurisdiction under section 13(2) of the Environment and Land Court Act, guided by Kosgey, Omalla, Nganga v Njuho and Kulundu. The Court also observed that the objection, filed seven years after suit and after a report favourable to the defendant, was an afterthought. The preliminary objection was dismissed with costs. The substantive suit remains for full hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this suit offends section 18(2) of the Land Registration Act, 2012
  2. 2.Whether the Court has jurisdiction to hear and determine the suit

Key legal issues

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01

Whether the suit violates section 18(2) of the Land Registration Act, 2012 for want of jurisdiction

Holding

The preliminary objection fails: the boundaries of the parties' parcels had already been determined, and the suit is one for trespass/encroachment which the Court has jurisdiction to hear under section 13(2) of the Environment and Land Court Act

Reasoning

The pleadings and the Survey of Kenya map showed that the boundaries of the two parcels had already been identified and determined. The registrar/surveyor court orders were meant to guide the Court on existing boundaries, not create or fix new ones. The cause of action is trespass, with prayers for permanent injunction and removal of structures, matters within section 13(2) of the Environment and Land Court Act. The objection, filed seven years after suit and after a consent order for the registrar and surveyor to visit the land, was an afterthought.

p. 3

Legal principles established

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  • Under section 18(2) of the Land Registration Act, the court shall not entertain a dispute as to the boundaries of registered land unless the boundaries have been determined under that section; but where boundaries have already been identified and determined, a suit claiming trespass/encroachment is properly before the Environment and Land Court under section 13(2) of the Environment and Land Court Act

Court orders

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  1. 1.The preliminary objection raised by the defendant is dismissed
  2. 2.The defendant to pay the costs of the preliminary objection

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AO
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act

Relief refused

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Dismissal of the suit for want of jurisdiction under section 18(2) of the Land Registration Act

The boundaries of the two parcels had already been identified and determined; the suit concerns trespass/encroachment, not the fixing of a boundary, and falls within the Court's jurisdiction under section 13(2) of the Environment and Land Court Act

p. 3

Costs

Preliminary objection dismissed with costs (costs of the preliminary objection awarded to the plaintiff)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Court finds that the boundaries of the two parcels of land being LR NO. KISUMU/WATHOREGO /1212 and LR NO. KISUMU/WATHOREGO /1211 had already been identified and determined and as such the suit is not in contravention of section 18(2) of the Land Registration Act.
p. 3Jurisdiction where boundaries already determined
This case is not about defining the position of a boundary, but rather to determine whether the defendant has encroached into the Plaintiff's parcel of land.
p. 3Nature of the dispute — trespass, not boundary fixing
The filing of the preliminary objection appears to be an afterthought. It is therefore my finding that the preliminary objection raised by the defendant is not merited and is dismissed with costs.
p. 3Final orders — preliminary objection dismissed with costs

Issues in the judgment

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minor

The judgment refers at paragraph 4 of the Plaint to 'the deceased' being the registered owner, although the plaintiff is throughout described as the plaintiff; the capacity of the plaintiff is not explained in the ruling

minor

The ruling is described in places as a judgment; it determines a preliminary objection only, not the substantive suit

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, "Janice Achieng Osawa (Suing as the administratix of the estate of Serfine Owiti Wandu) v Nura Ramadhan [2021] KEELC 854 (KLR)", Case Analysis (2021). Not stated in judgment (Kisumu Environment and Land Court suit filed 6th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/854/eng@2021-11-19

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