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ELCDismissedELCA Case No. 7 of 2020· [2021] KEELC 4137 (KLR)

Moses Mukanda Olalie v Francis Makokha Odongo & 3 others [2021] KEELC 4137 (KLR)

Environment and Land Court
23 February 2021
NMN.A. Matheka
2,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts cannot hear land boundary disputes until the Land Registrar first determines them under the Land Registration Act.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against a ruling of T.A. Odera, Senior Principal Magistrate, delivered on 14th February 2020 in Mumias Land Case No. 59 of 2018, striking out the appellant's suit on a preliminary objection raised by the 2nd and 3rd respondents. The appellant, who had sought eviction of trespassers from and an injunction over land parcel S/Wanga/Ekero/298 bordering parcel 299, argued that the magistrate erred in disregarding his submissions, ignored a consent order of 10th July 2018 directing a survey, and wrongly characterised his claim as a boundary dispute when the respondents were not absolute registered proprietors. The respondents were served but filed no response. The court, per N.A. Matheka J, applied the Mukisa Biscuits and Oraro v Mbaja tests on preliminary objections and held that whether the claim was a boundary dispute was a pure point of law. Reading sections 18(2) and 19 of the Land Registration Act, the court held that boundary disputes over registered land fall to the Land Registrar, and that the parties, having already engaged the District Surveyor and appeared before the Chief of Ekero Location, were bound by the exhaustion doctrine to escalate the matter to the Land Registrar before approaching the court. Finding no misapprehension of evidence or wrong principle, the court declined to interfere and dismissed the appeal with no orders as to costs.

Key legal issues

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01

Jurisdiction over boundary disputes of registered land

Holding

Section 18(2) of the Land Registration Act ousts the court's jurisdiction over boundary disputes until determination by the Land Registrar; the suit was properly struck out

Reasoning

The court found the claim was in substance a boundary dispute between parcels S/Wanga/Ekero/298 and 299; the parties had already engaged the District Surveyor and appeared before the Chief. Having elected that mechanism, the parties were bound to escalate any dissatisfaction to the Land Registrar, not the court. The preliminary objection therefore raised a pure point of law on jurisdiction and was properly upheld.

p. 3
02

Validity of the preliminary objection

Holding

Whether the claim was a boundary dispute was a pure point of law properly raised as a preliminary objection

Reasoning

Relying on Mukisa Biscuits and Oraro v Mbaja, the court held the objection did not require ascertainment of contested facts or exercise of discretion; the character of the claim as a boundary dispute arose clearly from the pleadings and record, including the consent order for a survey and the parties' appearance before the Chief, so the objection was competent.

p. 2

Legal principles established

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  • Courts are barred from entertaining boundary disputes over registered land unless the boundaries have first been determined in accordance with the Land Registration Act
  • Where an alternative dispute resolution mechanism exists, it must be exhausted before the jurisdiction of the courts is invoked
  • An appellate court will not interfere with findings of fact of a trial court unless based on no evidence, misapprehension of evidence, or wrong principles

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19(1),(2),(3)
  • Civil Procedure ActOverriding objective (unspecified section)
  • Constitution of KenyaArticle 159

Cases cited (6)

  • Kenya Breweries Ltd. & Another vs. Keroche Breweries Ltd.
    (2020) eKLR
  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    (2005) eKLR
  • Ratilal Ghela Shah & 2 Others vs Menkar Ltd
    (2018) eKLR
  • Willis Ocholla vs Mary Ndege
    (2016) eKLR
  • Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others
    (2015) eKLR
On appeal from
Mumias Senior Principal Magistrate's Court
Land Case No. 59 of 2018
Jurisdiction invoked
First appeal to the Environment and Land Court from the Magistrates' Court (rule/authority 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, "Moses Mukanda Olalie v Francis Makokha Odongo & 3 others [2021] KEELC 4137 (KLR)", Case Analysis (2021). ELCA Case No. 7 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4137/eng@2021-02-23

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