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ELCStruck Out· [2021] KEELC 2820 (KLR)

Donald Scaver Mwakio v Kenya National Highways Authority [2021] KEELC 2820 (KLR)

Environment and Land Court
14 June 2021
CYC.K. Yano
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's courts cannot hear land boundary disputes until the Land Registrar has first determined the boundary, so filing in court prematurely gets your entire suit struck out.

What this practically means

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Executive summary

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The plaintiff, Donald Scaver Mwakio, administrator of the estate of Msaga Mwakio (deceased) and registered proprietor of Werugha/Wundanyi/1707 (a subdivision of the deceased's parcel 1008), moved the court by Notice of Motion dated 6th September 2019 seeking an interlocutory injunction restraining the defendant, its servants and agents from pulling down the perimeter fence on, encroaching upon, or interfering with the suit properties. He alleged that in March, August and early September 2019 the defendant's agents threatened to uproot the fence on the ground that part of the land, about 400 square metres worth some Kshs. 2 million, fell within the road reserve of the Mwatate-Wundanyi Road (B56). The defendant, through Kipkemoi Rono, responded that its measurements and the Registry Index Map showed parcel 1707 encroached on the road reserve by about 3.5 metres; that no adverse action had yet been taken as a quit notice was pending; and, crucially, that the dispute was a boundary dispute over which the court lacked jurisdiction under Section 18(2) of the Land Registration Act, the fixing of boundaries being vested in the Land Registrar under Section 19. The plaintiff relied on Giella v Cassman Brown to urge a prima facie case; the defendant cited Joyce Mukuhi Njenga and Afraha High School. The court held from the pleadings that the core issue was a boundary dispute, that the plaintiff ought first to have invoked the Registrar's statutory process, and that it therefore lacked jurisdiction. It struck out both the application and the suit with costs to the defendant. The injunction was accordingly refused.

Key legal issues

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01

Jurisdiction where the dispute concerns boundaries of registered land

Holding

The court lacks jurisdiction to entertain a suit whose core issue is a boundary dispute over registered land, as such disputes must first be determined by the Land Registrar under Sections 18 and 19 of the Land Registration Act

Reasoning

The court examined the pleadings and found that both the plaintiff's claim of threatened fence demolition and the defendant's assertion of encroachment on the road reserve turned on where the boundary of parcel Werugha/Wundanyi/1707 lies. Since the boundaries were unfixed (general boundaries), Section 18(2) barred the court from entertaining the action until the Registrar determines the boundary under Section 19. The plaintiff had bypassed that statutory process.

p. 2
02

Whether the plaintiff established the Giella v Cassman Brown criteria for an interlocutory injunction

Holding

The court did not reach the injunction criteria because the suit failed for want of jurisdiction

Reasoning

The defendant argued that for want of jurisdiction the court could not determine whether a prima facie case existed. The court agreed, holding the suit unsustainable and striking out both the application and the suit rather than engaging with the prima facie case, irreparable harm, and balance of convenience test.

p. 2

Legal principles established

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  • Under Section 18(2) of the Land Registration Act, the court shall not entertain any action relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with that Section
  • Where a dispute is essentially a boundary dispute, the plaintiff must first give the Land Registrar the opportunity to address the boundary complaint before approaching the court

Court orders

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  1. 1.The plaintiff's suit is struck out with costs to the defendant
  2. 2.The plaintiff's Notice of Motion dated 6th September 2019 is struck out with costs to the defendant

Authorities

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Legislation

  • Land Registration ActSection 18(1), 18(2), 18(3)
  • Land Registration ActSection 19(1), 19(2), 19(3)
  • Survey ActCap 299

Cases cited (3)

  • Giella -v- Cassman Brown
    (1973) EA 358
  • Joyce Mukuhi Njenga -v- Equity Building Society & 2 Others
    [2005] eKLR
  • Board of Governors Afraha High School & Another -v- Kenya Commercial Bank
    [2004]
Jurisdiction invoked
Land Registration Act, No. 3 of 2012, Sections 18 and 19

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, "Donald Scaver Mwakio v Kenya National Highways Authority [2021] KEELC 2820 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2820/eng@2021-06-14

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