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ELCDismissedNot stated in the judgment (Plaint dated 29th April, 2015)· [2021] KEELC 1241 (KLR)

Kennedy Omare Nyakundi (suing in his capacity as the authorized attorney by Christopher Mbaka Nyakundi) v Josphine Moraa Omanwa [2021] KEELC 1241 (KLR)

Environment and Land Court
27 October 2021
2,922 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, registered owner of L.R NO. WEST KITUTU/BOMATARA 1492, sued the Defendant, owner of the adjacent parcel 1491, seeking demolition of structures encroaching on his land, re-opening of a 3-meter access road, a permanent injunction against trespass, costs and interest. He testified through an attorney holding a power of attorney, supported by a private surveyor from Olweny and Associates and the County Surveyor, both of whom reported encroachment and a partially blocked access road. The Defendant testified that she purchased her parcel at a public auction from KCB Bank in 1999, already developed with a concrete fence and three structures, and had never been previously complained against; a 2003 suit by the Plaintiff's late father was dismissed for want of prosecution. The court framed three issues: jurisdiction, limitation, and entitlement to relief. On jurisdiction, it held that under sections 18(2) and 19 of the Land Registration Act a boundary dispute must first be determined by the Land Registrar; since only the County Surveyor, not the Land Registrar, visited the property, the suit was premature, and the court followed George Kamau Macharia v Dexka Limited. On limitation, trespass being tort, the three-year period under section 4 of the Limitation of Actions Act had elapsed, the encroachment dating back to before 2003. The Plaintiff therefore failed to prove his case on a balance of probabilities, and the suit was dismissed with costs to the Defendant on 27th October, 2021 at Kisii.

Key legal issues

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01

Whether the court had jurisdiction over the boundary dispute

Holding

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.

Reasoning

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.

p. 4
02

Whether the Plaintiff's suit was time barred

Holding

Yes, the claim in trespass was time barred as the alleged encroachment commenced more than three years before filing.

Reasoning

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.

p. 4
03

Whether the Plaintiff was entitled to the reliefs sought

Holding

No; the Plaintiff failed to prove his case on a balance of probabilities.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit is dismissed with costs to the Defendant.

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Land Registration ActSections 18, 18(2), 19, 19(1), 19(2), 19(3)
  • Limitation of Actions ActSection 4

Cases cited (1)

  • George Kamau Macharia v Dexka Limited
    (2019) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act

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, "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.