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ELCOtherNot stated in the judgment· [2021] KEELC 2981 (KLR)

Esther Gloria Mwihaki Bell v Jane Wanjiku Mwathi & 3 others [2021] KEELC 2981 (KLR)

Environment and Land Court
25 May 2021
681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued the Defendants claiming they had encroached on her land, Dagoretti/Riruta/4363, and sought their eviction. The 1st to 3rd Defendants denied the claim, contending that the Plaintiff was the encroacher and that the parent parcel, Dagoretti/Riruta/122, had been subdivided without accounting for 0.21 ha taken up by access roads; by counterclaim they sought a declaration that they were entitled to 0.192 acres of the Suit Property. The 4th Defendant sought an order for a surveyor to resolve the boundary. The Defendants filed a preliminary objection invoking Sections 7 and 9 of the Limitation of Actions Act, arguing the cause of action arose on 19/10/1999 when the subdivision occurred and the suit, filed in 2018, was time barred. The Plaintiff countered that the objection did not raise a pure point of law, that she purchased the property in 2006 and enjoyed quiet possession until a boundary dispute arose in 2017, relying on a Regional Surveyor's report of 14/11/2017. The court agreed that when the cause of action arose depends on evidence of when the Plaintiff discovered the encroachment and dismissed the preliminary objection. However, applying Section 18 of the Land Registration Act, which bars the court from entertaining boundary disputes until the boundaries are determined under that section, the court stayed the suit pending determination of the boundaries of Dagoretti/Riruta/4363 by the Land Registrar. Delivered virtually at Nairobi on 25 May 2021 by K. Bor, Judge.

Key legal issues

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01

Whether the suit is time barred under the Limitation of Actions Act

Holding

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.

Reasoning

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.

p. 1
02

Whether the court can entertain the boundary dispute before determination by the Land Registrar

Holding

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.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The preliminary objection by the 1st to 3rd Defendants is dismissed
  2. 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

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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, "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.