Esther Gloria Mwihaki Bell v Jane Wanjiku Mwathi & 3 others [2021] KEELC 2981 (KLR)
The bottom line
#A Kenyan landowner's encroachment suit survived a time-bar challenge but must wait until the Land Registrar fixes the boundary first.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is time barred under the Limitation of Actions Act
The preliminary objection failed because when the cause of action arose is a factual question requiring evidence; if the Plaintiff discovered the encroachment in 2017 the claim is not statute barred.
The 1st to 3rd Defendants relied on Sections 7 and 9 of the Limitation of Actions Act, contending the cause of action arose on 19/10/1999 when the land was subdivided and time lapsed in April 2011. The Plaintiff maintained she purchased the property in 2006 and enjoyed quiet possession until 2017, relying on a Regional Surveyor's report dated 14/11/2017. The court held it must hear evidence on when the Plaintiff discovered the encroachment before limitation can be determined, and dismissed the objection.
Whether the court can entertain the boundary dispute before determination by the Land Registrar
The suit is stayed pending determination of the boundaries of Dagoretti/Riruta/4363 by the Land Registrar under Section 18 of the Land Registration Act.
The court noted that Section 18 of the Land Registration Act ousts the court's jurisdiction over boundary disputes until the boundaries have been determined in accordance with that section. A surveyor's report dated 22/3/2021, prepared on behalf of the Provincial Surveyor, Nairobi, found that several parcels had encroached on the Suit Property and recommended re-establishment of its boundaries. The court therefore stayed the suit pending the Registrar's determination.
Legal principles established
#- Where the question of when a cause of action in a claim for recovery of land arose depends on evidence (such as when the plaintiff discovered the encroachment), it cannot be resolved on a preliminary objection.
- Section 18 of the Land Registration Act bars the court from entertaining proceedings relating to a boundary dispute unless the boundaries have first been determined in accordance with that section.
Court orders
#- 1.The preliminary objection by the 1st to 3rd Defendants is dismissed
- 2.This suit is stayed until a determination is made by the Land Registrar as to the boundaries of plot number 4363 in accordance with Section 18 of the Land Registration Act
- Jurisdiction invoked
- First-instance jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Gloria Mwihaki Bell v Jane Wanjiku Mwathi & 3 others [2021] KEELC 2981 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2981/eng@2021-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.