Nelly Atieno Oluoch v Damaris A Nyawalo & 2 others [2021] KEELC 2157 (KLR)
The bottom line
#The Environment and Land Court in Kisumu ruled it can hear a land dispute where boundaries were already officially fixed, dismissing the seller's attempt to have the case thrown out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this suit offends section 18(2) of the Land Registration Act, 2012, such that the Court lacks jurisdiction over the boundary dispute
Key legal issues
#Whether the suit offends section 18(2) of the Land Registration Act, 2012
It does not. The boundaries of Kisumu/Kogony/2955 and 2956 were already fixed by a 1998 perimeter survey whose results were noted in the register, and section 18(2) only bars court proceedings where boundaries have not been determined.
The plaint averred, and the 3rd defendant's defence admitted, that dimensions and areas of the two adjoining parcels were confirmed and fixed in 1998 by the District Surveyor and recorded in the register. Two court-ordered survey reports showed the problem was an erroneous map, not unfixed boundaries. The plaintiff's claim is founded on trespass and seeks injunction and damages, matters within the Court's jurisdiction under section 13(2) of the Environment and Land Court Act.
Whether the Court has jurisdiction over the plaintiff's claims for permanent injunction, identification of the property and damages for trespass
Yes. Those reliefs fall under section 13(2) of the Environment and Land Court Act and are fit to be argued in the substantive suit.
The cause of action pleaded is trespass, not a pure boundary dispute. Following Fredrick Nganga v Prof. Peter Mungai Njuho and Hudson Kulundu v Martha Chibetti, the Court held that claims for injunction and damages for trespass relating to land use and boundaries are within its statutory jurisdiction and cannot be ousted by section 18(2) where the dispute is not purely a boundary one.
Legal principles established
#- The Land Registrar's jurisdiction under section 18(2) of the Land Registration Act applies only where boundaries of registered land have not been fixed; where boundaries have been fixed, the Environment and Land Court has jurisdiction.
- Section 18(2) ousts the Court's jurisdiction only where the dispute is purely a boundary dispute; suits founded on trespass and seeking injunction and damages fall within section 13(2) of the Environment and Land Court Act.
Court orders
#- 1.The preliminary objection raised by the 3rd defendant is dismissed
- 2.Costs of the preliminary objection awarded to the plaintiff/defendants opposing it (dismissed with costs)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court Act, 2011
Relief refused
#3rd Defendant's prayer that the suit be struck out for want of jurisdiction under section 18(2) of the Land Registration Act
Boundaries of the two parcels had already been fixed (perimeter survey of 1998 noted in the register) and the plaintiff's cause of action is in trespass, which falls within section 13(2) of the Environment and Land Court Act
Costs
Preliminary objection dismissed with costs to the plaintiffs (the 1st and 2nd Defendants who opposed the objection).
Quotable passages
#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 upshot of the above is that the preliminary objection raised by the 3rd defendant is not merited is dismissed with costs.
the registrar would have jurisdiction where the boundaries have not been fixed and where the boundaries have been fixed, the Court will have jurisdiction to hear and determine the matter.
The above clearly discloses that the boundaries of the two parcels have already been determined in accordance with the Land Registration Act.
does not fall exclusively as envisage in Section 18 (2) of the Land Registration Act, 2012 which ousts the jurisdiction of the court where the dispute is purely boundary.
Issues in the judgment
#Costs order does not specify the recipient; the objection was dismissed 'with costs' without stating to which party or parties costs go
The court refers to the same Thika authority inconsistently as 'Fredrick Nganga Thuo v Prof. Peter Mungai Njuho' and 'Fredrick Nganga v Prof. Peter Mungai Njuho'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelly Atieno Oluoch v Damaris A Nyawalo & 2 others [2021] KEELC 2157 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2157/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.