Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in judgment· [2021] KEELC 4596 (KLR)

Fredrick Wainaina Njoroge & 2 others v Stephen Kariuki Ndungu & 2 others [2021] KEELC 4596 (KLR)

Environment and Land Court
28 January 2021
JKJ G Kemei
2,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a land boundary suit because the Land Registrar, not the court, must first fix disputed boundaries.

What this practically means

#

Executive summary

#
The Plaintiffs sued on 26 November 2020 seeking a declaration that the current map of Makuyu/Makuyu Block 1 (Punda Milia) had been illegally and irregularly altered and registered, orders for a resurvey to restore original boundaries and blocked access roads, an amendment of the map, and a permanent injunction restraining boundary verification visits to four parcels. They alleged that an altered map had increased the 1st Defendant's land, encroaching on their parcels. Together with the plaint they sought interlocutory restraining orders. The 1st Defendant filed a Preliminary Objection and grounds of opposition, contending that the dispute was a boundary dispute which under Sections 18(2) and 19 of the Land Registration Act must first be determined by the Land Registrar, and that the Court therefore lacked jurisdiction, the suit being premature. The Plaintiffs countered that the reliefs sought (declarations, resurvey and map amendment) were beyond the Registrar's powers and required Court orders under the LRA and Survey Act, and that the objection was not a pure point of law since fraud was alleged. The Court, citing the exhaustion doctrine, held that although its jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act covers boundaries, Section 18(2) barred entertaining the dispute before the Land Registrar fixed the boundaries. The surveyor's notice of a site visit was proper. Upholding the Preliminary Objection as a pure point of law, the Court struck out both the application dated 25 November 2020 and the suit, awarding costs to the 1st Defendant.

Key legal issues

#
01

Whether the suit is a boundary dispute caught by Section 18(2) of the LRA

Holding

Yes. The plaint itself describes the dispute as a boundary dispute and raises encroachment and the existence of two maps, all matters within the Land Registrar's powers under Sections 18(2) and 19 of the LRA.

Reasoning

The Court perused the plaint and found paragraphs 5 to 13 framed the dispute as a boundary dispute involving encroachment and two conflicting maps. Such disputes are the province of the Land Registrar, who possesses the technical skills to fix boundaries. The claim that the surveyor cited distant third-party parcels was also a matter the Registrar could ascertain.

p. 3
02

Whether the ELC's jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act displaces the Section 18(2) bar

Holding

No. Although the Court's jurisdiction includes boundaries, Section 18(2) prohibits hearing a boundary dispute until boundaries are fixed under the LRA.

Reasoning

The Court held that its reading of Article 162(2)(b) and Section 13(2) of the ELC Act does not exclude boundary determination, but Section 18(2) expressly bars entertaining such a dispute before the boundaries are fixed, relegating general boundary disputes to the Land Registrar under Section 19.

p. 3
03

Whether the Preliminary Objection is a pure point of law

Holding

Yes, it was a pure point of law and was upheld.

Reasoning

The Plaintiffs argued the objection was incompetent because the suit was founded on fraud requiring evidence. The Court nonetheless found the objection raised a pure point of law on jurisdiction premised on the statutory bar in Section 18(2) of the LRA, and upheld it without needing to resolve factual questions.

p. 3

Legal principles established

#
  • Courts are barred by Section 18(2) LRA from entertaining boundary disputes unless boundaries have been determined in accordance with the Act
  • Where a statute provides a dispute resolution mechanism, that mechanism must be exhausted before invoking the Court's jurisdiction

Court orders

#
  1. 1.The Preliminary Objection is upheld
  2. 2.The application dated 25/11/2020 is struck out
  3. 3.The suit filed on 26/11/2020 is struck out
  4. 4.Costs granted in favour of the 1st Defendant

Authorities

#

Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19(1), (2), (3)
  • Land Registration ActSections 14, 15, 15-17
  • Environment and Land Court ActSections 13, 13(2), 7
  • Constitution of KenyaArticle 162(2)(b), Article 159
  • Survey ActSections 22, 23, 30(2), 31

Cases cited (7)

  • Giella Vs Cassman Brown
  • George Kamau Macharia Vs Dexka Limited
    (2019) EKLR
  • Michael Maluti & 5 Others Vs Julius Mbau Nzyuko & 2 others
    (2019) EKLR
  • Republic v Firearms Licensing Board & Another Ex parte Boniface Mwaura
    [2019] eKLR
  • Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others
  • Matter of the Mui Coal Basin Local Community
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read together with Section 13(2) of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Fredrick Wainaina Njoroge & 2 others v Stephen Kariuki Ndungu & 2 others [2021] KEELC 4596 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4596/eng@2021-01-28

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