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ELCDismissedNotice of Motion dated 10th August, 2021 (suit at Narok; ELRC/ELC record number not stated in judgment)· [2022] KEELC 151 (KLR)

Kipkuriat Farm Ltd v Nabaala & 2 others (Environment & Land Case E016 of 2021) [2022] KEELC 151 (KLR)

Environment and Land Court

16 June 2022

CMC G Mbogo

1,832 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court dismissed a land injunction because boundary disputes must first go to the Land Registrar, not the court.

What this practically means

Executive summary

This ruling of the Environment and Land Court at Narok, delivered by Mbogo C.G, J on 16th June 2022, determined the plaintiff's Notice of Motion dated 10th August 2021 seeking a temporary injunction to restrain the defendants from selling, leasing, entering upon or taking possession of 150 acres allegedly curved out of the plaintiff's land parcel Narok/Olchorro Oirowua/12 pursuant to amendments to the Registry Index Map made in October 2012. The application, brought under Order 40 Rules 1(a) and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, was supported by affidavits of Francis Kering, the plaintiff's acting secretary. The 1st defendant opposed, deposing that he was the registered proprietor of Narok/Olchoro Oirowua/27, that the boundary dispute was caused by the plaintiff's greed to extend its boundary, and that the Land Registrar had set boundary points which the plaintiff challenged through judicial review proceedings dismissed on 2nd March 2021. The 2nd and 3rd defendants did not oppose the application. Only the plaintiff filed submissions, framing four issues: prima facie case, irreparable loss, balance of convenience, and the Land Registrar's power to amend a registry index map without consent. The court identified the core dispute as a boundary dispute between parcels 12 and 98 and held that under Section 18(2) of the Land Registration Act, the court is barred from entertaining boundary disputes unless the boundaries are first determined under Section 18. Since the plaintiff admitted the boundary issue remained unresolved, the application lacked merit and was dismissed with no orders as to costs.

Key legal issues

Whether the application for temporary injunction could be entertained given that the core dispute was a boundary dispute

Holding

The application lacked merit because the dispute was a boundary dispute over registered land that must first be determined under Section 18 of the Land Registration Act

Reasoning

The court identified that the real issue in contention was the boundary between parcels Narok/Olchorro Oirowua/12 and 98, with an element of land claim regarding 150 acres allegedly hived off. The plaintiff's own affidavit admitted the boundary issue remained unresolved. Section 18(2) of the Land Registration Act bars the court from entertaining boundary disputes unless boundaries are first determined under that section. Accordingly, the injunction application could not succeed.

p. 4

Whether the boundaries on the register are approximate only

Holding

Unless boundaries are fixed and noted in the register under Section 20, the cadastral map and filed plans indicate only approximate boundaries

Reasoning

The court quoted Section 18(1) of the Land Registration Act to establish that, except where boundaries have been fixed under Section 20, the cadastral map and filed plans are deemed to indicate approximate boundaries and approximate situation only of the parcel. This framed the statutory scheme requiring boundary determination under the Act before court proceedings.

p. 4

Legal principles established

The court cannot entertain any action or proceedings relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with Section 18 of the Land Registration Act

Court orders

1.The plaintiff's Notice of Motion dated 10th August, 2021 is dismissed
2.No orders as to costs

Authorities

Legislation

Civil Procedure RulesOrder 40 Rules 1(a) and 2
Civil Procedure ActSection 3A
Land Registration ActSection 18(1) and 18(2)

Jurisdiction invoked: Original civil jurisdiction; application under Order 40 Rules 1(a) and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kipkuriat Farm Ltd v Nabaala & 2 others (Environment & Land Case E016 of 2021) [2022] KEELC 151 (KLR)", Case Analysis (2022). Notice of Motion dated 10th August, 2021 (suit at Narok; ELRC/ELC record number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/151/eng@2022-06-16

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