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ELCAllowedELC. Appeal No. 26 of 2019 (Formerly Kajiado Civil Appeal No. 3 of 2019)· [2021] KEELC 1455 (KLR)

Stephen W. Maina v Francis Otiso Onchomba & another [2021] KEELC 1455 (KLR)

Environment and Land Court
21 October 2021
2,557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a landowner's suit, confirming that boundary rules only apply where land has a registered title or lease.

What this practically means

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Executive summary

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This is a first-instance appeal to the Environment and Land Court at Kajiado against the ruling of Hon. P M Okuche (delivered by Hon. Margaret Kasera) in Kajiado CMCC No. 347 of 2009, in which the trial court upheld the 1st Respondent's preliminary objection and struck out the Appellant's suit with costs on the ground that the dispute was a boundary dispute reserved under Section 18 of the Land Registration Act to the Land Registrar. The Appellant, holder of a letter of allotment to Plot No. 315 Residential Noonkopir T. Centre, sued for possession, trespass damages, injunction and cancellation of the 1st Respondent's allotment, contending the suit was not a boundary dispute and that the land was unregistered. The court framed four issues: merit of the preliminary objection, jurisdiction of the lower court, merit of the appeal, and costs. Applying Mukhisa Biscuit and the Supreme Court's decision in IEBC v Cheperenger, Christine Ochieng J held that Section 18 applies only to registered land; neither party held a certificate of title or lease, so no Land Register existed, and the plaint raised issues beyond boundaries. The preliminary objection was a mixed point of law and fact wrongly upheld. The court allowed the appeal, set aside the striking-out order, reinstated the suit for hearing, and awarded the Appellant the costs of the appeal.

Key legal issues

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01

Whether Section 18 of the Land Registration Act barred the lower court's jurisdiction

Holding

It did not, because the suit property was unregistered; both parties held only letters of allotment, so no Land Register existed and boundary determination under Section 18 did not apply.

Reasoning

Section 18(2) commits boundary disputes of registered land to the Land Registrar before court proceedings. The court read the interpretation section and Section 7 of the Act and found that neither party held a Certificate of Title or Lease, hence no Land Register existed for the plots. The further re-amended plaint also raised other issues (identification of land, ownership declaration, injunction, cancellation of allotment, compensation) beyond boundaries. Section 13 of the ELC Act confers jurisdiction over such matters on the ELC and magistrates mandated to deal with land matters.

p. 3
02

Whether the preliminary objection was a valid pure point of law

Holding

It was not; it was a mixed point of law and fact founded on a wrong interpretation of the law, and the trial magistrate erred in upholding it.

Reasoning

Applying Mukhisa Biscuit and the IEBC v Cheperenger principles, a preliminary objection must be a pure point of law arising by clear implication from the pleadings. Here determining whether the dispute was a boundary dispute required ascertaining facts; the plaint raised multiple issues beyond boundaries. The trial magistrate therefore erred in striking out the suit on the objection.

p. 3

Legal principles established

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  • Section 18(2) of the Land Registration Act applies only to boundary disputes over registered land; where parties hold only letters of allotment, the land is unregistered and the section does not oust the court's jurisdiction.
  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained.

Court orders

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  1. 1.The Appeal be and is hereby allowed
  2. 2.The Ruling and order of the lower court delivered on 21st December, 2018 striking out Kajiado CMCC No. 347 of 2009 be and is hereby set aside and the said suit reinstated for hearing
  3. 3.The Appellant be and is hereby awarded the costs of this Appeal

Authorities

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Legislation

  • Land Registration ActSections 18, 18(2), 19, 7
  • Environment and Land Court ActSection 13
  • Survey ActCap. 299

Cases cited (17)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Omondi vs. National Bank of Kenya Ltd & Others
    [2001] KLR 579; [2001] 1 EA 177
  • Oraro vs. Mbaja
    (2005) 1 KLR 141
  • J.N. & 5 others v Board of Management St G. School Nairobi & another
    (2017) eKLR
  • Republic versus City Council of Nairobi & 3 Others
    (2014) eKLR
  • Joseph Kagunya v Boniface K. Mulli & 3 others
    [2018] eKLR
  • Joseph N.K Arap Ngok vs Justice Moijo ole Keiuwa & 4 Others
    CA Civil Appl. No. 60 of 1996
  • David Wahome Gitonga (Suing as the legal Representative of the Estate of the Late Lucy Nyokabi Kiarie) v Mary Nyakio Kanini & 3 others
    [2020] eKLR
  • M'Mukanya v M'Mbijiwe
    (1984) KLR 761
  • Municipal Council of Eldoret v Titus Gatitu Njau
    [2020] eKLR
  • Edward Mwaniki Gatura & Another Vs The AG & two others
    NRB Petition No. 72 of 2013
  • Kibwana Ali Karisa & another v Said Hamisi Mohamed & 3 others
    [2015] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    [2016] eKLR
  • Munywoki Musuva Ngao vs. Mutua Mbinda & Another
    (2019) eKLR
  • George Kamau Macharia vs. Dexka Limited
    (2019) eKLR
  • Independent Electoral and Boundaries Commission V Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
  • Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Company Limited
    (1969) EA 696
On appeal from
Chief Magistrate's Court at Kajiado
Kajiado CMCC No. 347 of 2009
Jurisdiction invoked
Section 13 of the Environment and Land Court Act; appeal against ruling of Principal Magistrate

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen W. Maina v Francis Otiso Onchomba & another [2021] KEELC 1455 (KLR)", Case Analysis (2021). ELC. Appeal No. 26 of 2019 (Formerly Kajiado Civil Appeal No. 3 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1455/eng@2021-10-21

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