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ELCDismissedNot stated in the judgment (Plaint dated 19th December 2016)· [2022] KEELC 268 (KLR)

Kahindi Kahaso Kombe v Joseph Daniel Kenga [2022] KEELC 268 (KLR)

Environment and Land Court
28 April 2022
JOJ. O. Olola
2,308 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 decide land boundary disputes until the Land Registrar first fixes the boundary—going straight to court will get your case dismissed.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of a parcel in the Ngomeni Settlement Scheme inherited from his father, sued the Defendant for a permanent injunction restraining interference with his land, alleging that the Defendant entered the parcel in 1999 and planted coconut trees thereon. The Defendant denied encroachment, asserting that he was the first to settle in the area in 1976, that the Plaintiff had ignored the existing boundary, and that the dispute was a boundary dispute over which the Court lacked jurisdiction under Section 18(2) of the Land Registration Act. At trial the Plaintiff called three witnesses who recounted a determination by the Area Assistant Chief and elders, and a survey in which pegs were planted, but the elders' report was not produced, the surveyor was not called, and no determination by the Land Registrar was tendered. The Court found that the dispute turned on the position of the boundary between two adjacent parcels. Although Section 13(2)(a) of the Environment and Land Court Act confers jurisdiction over boundary disputes, Section 18(2) of the Land Registration Act bars the Court from entertaining such disputes unless the boundaries have first been determined under that Act. The statutory mechanism had not been exhausted, rendering the suit premature and misconceived. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Jurisdiction over boundary disputes under Section 18(2) of the Land Registration Act

Holding

The Court can only entertain a boundary dispute where it is shown that the boundaries had first been determined and fixed in accordance with the Land Registration Act; failing which the suit is premature and misconceived

Reasoning

Although Section 13(2)(a) of the Environment and Land Court Act confers jurisdiction over boundary disputes, Section 18(2) of the Land Registration Act ousts the Court's jurisdiction until the Land Registrar determines the boundaries. The evidence showed no such determination: the elders' report was not produced, the surveyor was not called, and no determination by the Land Registrar existed. The dispute was plainly about the position of the boundary between the two adjacent parcels.

p. 3
02

Whether the Defendant encroached on the Plaintiff's land

Holding

The Plaintiff failed to prove encroachment; in the absence of a survey report it was impossible to tell whether the disputed portion lay within the Plaintiff's or the Defendant's boundaries

Reasoning

The elders' report was not produced, the surveyor who allegedly fixed beacons was not called to testify, and the photographs produced could not show whether the land depicted belonged to the Plaintiff or the Defendant. The claim therefore failed on the evidence, quite apart from the jurisdictional bar.

p. 3

Legal principles established

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  • A court shall not entertain any action relating to a dispute as to boundaries of registered land unless the boundaries have first been determined in accordance with Section 18 of the Land Registration Act
  • Where a dispute resolution mechanism outside the courts is provided in law, it must be exhausted before invoking the court's jurisdiction

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSections 18 and 18(2)
  • Land Registration ActSection 20
  • Environment and Land Court ActSection 13(2)(a)
Jurisdiction invoked
Section 13(2)(a) of the Environment and Land Court Act No. 19 of 2011, read subject to Section 18(2) of the Land Registration Act No. 3 of 2012

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, "Kahindi Kahaso Kombe v Joseph Daniel Kenga [2022] KEELC 268 (KLR)", Case Analysis (2022). Not stated in the judgment (Plaint dated 19th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/268/eng@2022-04-28

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