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ELCDismissedNot stated in the judgment as provided· [2021] KEELC 2603 (KLR)

Kenya National Highways Authority v Geoorge Kirimana Abuaba [2021] KEELC 2603 (KLR)

Environment and Land Court
14 July 2021
1,955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed preliminary objections can be raised any time, but failed boundary-dispute objections collapse when pleadings contradict them.

What this practically means

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Executive summary

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The respondent (plaintiff) sued the appellant (defendant) in the trial court seeking a permanent injunction, a declaration of quiet enjoyment of LR No. Athing'a/Athanja 5400 Meru North, a directive for a joint boundary survey, general damages, interest and costs. Before trial, the appellant raised a preliminary objection dated 30/10/2019 contending that the court lacked jurisdiction because the suit was a boundary dispute reserved for the Land Registrar under Section 18(2) of the Land Registration Act, 2012. The trial court dismissed the objection by a ruling delivered on 30 January 2020, and the appellant appealed on seven grounds. The appeal was canvassed by written submissions. The court held that a preliminary objection may be raised at any time while a suit is active, so the 11-month delay was irrelevant. On jurisdiction, the court found the respondent's claim was not a pure boundary dispute because the prayers extended to injunction and damages; further, the appellant's own defence characterised the matter as reclamation of a road reserve and denied any boundary dispute, and a party is bound by its pleadings. The court also noted uncertainty as to which statutory registration regime governed the suit parcel. The authorities relied on by the appellant were distinguished. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Timeliness of a preliminary objection

Holding

The preliminary objection was properly raised despite being filed 11 months after the suit, since a preliminary objection can be raised at any time while the suit is active.

Reasoning

Relying on the quoted authorities, the court held that although a preliminary objection is preferably raised early, it may be raised at any time during active proceedings. The respondent's argument that the objection was an afterthought was therefore irrelevant, and the objection was properly before the trial court.

p. 2
02

Whether the suit was a boundary dispute ousting the court's jurisdiction under Section 18(2) of the Land Registration Act

Holding

The suit was not a pure boundary dispute; the trial court had jurisdiction and the appeal was dismissed.

Reasoning

Although the plaint in one paragraph sought ascertainment of the boundary, the prayers went beyond boundary determination to include permanent injunction and damages. Moreover, the appellant's own defence denied the existence of a boundary dispute, characterising the issue as reclamation of a road reserve. Being bound by its pleadings, the appellant could not contradictory raise a boundary-dispute objection. There was also uncertainty as to the applicable registration regime.

p. 3
03

Distinguishing the authorities relied on by the appellant

Holding

The cases cited by the appellant were distinguishable on the pleadings and facts.

Reasoning

In Muchilwa the pleadings clearly disclosed a boundary dispute, and in William Gacani Mbaria the Land Registrar had already determined the boundary which the plaintiff disregarded. Neither scenario matched the present case, where the claim was not a pure boundary dispute and the appellant's pleadings disclaimed one.

p. 3

Legal principles established

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  • A preliminary objection on a point of law may be raised at any stage of the proceedings, though preferably at the earliest opportunity
  • A preliminary objection must be a pure point of law, not blurred with facts requiring evidence
  • Under Section 18(2) of the Land Registration Act, 2012, courts cannot entertain boundary disputes over registered land unless the boundaries have first been determined under that section
  • A party is bound by its pleadings and cannot blow hot and cold

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19
  • Registered Land Act Cap 300 (repealed)Section 21(4)

Cases cited (12)

  • Cornelius Sylvano Muchilwa & 3 others v Kenya National Highways Authority
    [2019] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others
    [2012] eKLR
  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    [2020] eKLR
  • George Kamau Macharia v Dexka Limited
    [2019] eKLR
  • William Gacani Mbaria v Charles Kirimi Mbui
    [2018] eKLR
  • Nitin Properties Limited v Jagjit S. Kalsi & another
    (1995) eKLR
  • Mukhisa Biscuit Manufacturers Ltd v West End Distributors Ltd
    [1969] E.A
  • Fredrick Ng'ang'a Thuo v Peter Mungai Njuho
    [2017] eKLR
  • Republic v Chief Registrar of the Judiciary & 2 others Ex parte Riley Services Limited
    [2015] eKLR
  • Beatrice Cherotich Koskei and Another v Olenguruone Land Dispute Tribunal and 2 Others
    Misc Civil Appl 861 of 2007
  • Oraro v Mbaja
    (2005) 1 KLR 141
  • Wamutu v. Kiarie
    (1982) KLR 480
On appeal from
Magistrates' Court (trial court)
Not stated
Jurisdiction invoked
First appeal from the magistrates' court under the applicable appeal provisions; appeal against dismissal of a preliminary objection on jurisdiction under Section 18(2) of the Land Registration Act, 2012

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, "Kenya National Highways Authority v Geoorge Kirimana Abuaba [2021] KEELC 2603 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2603/eng@2021-07-14

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