Kennedy Omare Nyakundi (suing in his capacity as the authorized attorney by Christopher Mbaka Nyakundi) v Josphine Moraa Omanwa [2021] KEELC 1241 (KLR)
The bottom line
#A landowner suing over a boundary dispute in Kenya must first get the Land Registrar to fix the boundary—courts will throw out premature suits.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction over the boundary dispute
The court lacked jurisdiction as the boundary had not been determined by the Land Registrar as required by sections 18 and 19 of the Land Registration Act.
The Defendant argued that under section 18(2) of the Land Registration Act the court cannot entertain boundary disputes until boundaries are determined under the Act. Although a court order directed the Land Registrar to visit the property, only the County Surveyor conducted the visit and no beacons or beacon certificate existed. The court concurred with George Kamau Macharia v Dexka Limited that such a dispute is premature before the court.
Whether the Plaintiff's suit was time barred
Yes, the claim in trespass was time barred as the alleged encroachment commenced more than three years before filing.
Trespass is a tort and section 4 of the Limitation of Actions Act prescribes a three-year limitation. The Plaintiff did not state when trespass commenced and did not controvert the Defendant's evidence of occupation since 1999. The previous owner (the Plaintiff's father) had sued the Defendant in 2003 in Kisii HCCC No. 50 of 2003, showing awareness of the alleged trespass.
Whether the Plaintiff was entitled to the reliefs sought
No; the Plaintiff failed to prove his case on a balance of probabilities.
Having found the suit premature on jurisdiction and time barred, the court held the Plaintiff had not discharged the burden of proof. The Defendant bought the parcel at a public auction in 1999 already fenced and developed, so she could not be held responsible for pre-existing trespass or encroachment.
Legal principles established
#- A court shall not entertain any action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with the Land Registration Act; the Land Registrar must first determine the boundary.
- A report of the County Surveyor alone, without the input of the Land Registrar, cannot be the basis of a determination of boundaries.
- An action founded on tort, including trespass, must be brought within three years under section 4 of the Limitation of Actions Act.
Court orders
#- 1.The Plaintiff's suit is dismissed with costs to the Defendant.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Omare Nyakundi (suing in his capacity as the authorized attorney by Christopher Mbaka Nyakundi) v Josphine Moraa Omanwa [2021] KEELC 1241 (KLR)", Case Analysis (2021). Not stated in the judgment (Plaint dated 29th April, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1241/eng@2021-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.