Kiprono Chemchor Kentagor v Boit Thomas Kimutai & 5 others [2021] KEELC 4255 (KLR)
The bottom line
#Kenya's Land Registrar must first fix disputed land boundaries before any court can hear the case, and adverse possession claims survive a landowner's death.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over boundary disputes of registered land
The court lacks jurisdiction where the dispute concerns boundaries of registered land that have not been fixed by the Land Registrar under sections 18 and 19 of the Land Registration Act
The pleadings and affidavit show the dispute was triggered by a survey/beacon-picking exercise and concerns whether a sisal boundary marked the correct limit between parcels 363 and 364. Section 18(2) bars the court from entertaining such disputes until the Registrar fixes boundaries under section 19. The court must not usurp the Registrar's mandate, which would duplicate functions and waste resources.
Adverse possession against the estate of a deceased registered owner
The argument that adverse possession cannot be claimed against a deceased registered owner's estate is untenable; such claims survive death under section 30(f) of the Registered Land Act and section 2 of the Law Reform Act
The court relied on Phyllis Wanjiru Kamau v Wilson Gichuhi Gachagwe and the Court of Appeal's decision in Karuntimi Raiji v M'Makinya M'Itunga, which held that section 30(f) of the Registered Land Act (overriding interests) and section 2 of the Law Reform Act (survival of causes of action) mean claims for adverse possession pass to the deceased's estate.
Locus standi of the deceased owners' beneficiaries as defendants
The objection that the defendants lack locus standi did not meet the threshold of a preliminary objection as it requires ascertainment of facts
The court held that the other issues in the preliminary objection would require evidence to prove and therefore fell outside the Mukisa Biscuit threshold that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct.
Legal principles established
#- A court may not entertain proceedings relating to a dispute as to boundaries of registered land unless the boundaries have been determined under section 18 of the Land Registration Act
- A claim for adverse possession survives the death of the registered proprietor
Court orders
#- 1.The preliminary objection dated 5th October 2020 is upheld with costs to the defendants
- 2.The applicant is at liberty to follow the right process with the Land Registrar to fix the boundary
- 3.The merits of the application for injunction were not determined
- Jurisdiction invoked
- Section 18(2), Land Registration Act No. 3 of 2012 (bar on court entertaining boundary disputes before determination by the Land Registrar)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiprono Chemchor Kentagor v Boit Thomas Kimutai & 5 others [2021] KEELC 4255 (KLR)", Case Analysis (2021). Civil Suit No 55 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4255/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.