Tendulkar Property Limited v Shamshudin Khosla & 4 others [2022] KEELC 475 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a boundary dispute belongs in ordinary land proceedings, not a constitutional petition, and dismissed the case with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether there was any act of excision by the Director of Surveys capable of being declared unconstitutional
No decision excising the petitioner's land was made; only a survey and report existed, so no unconstitutional act was established
The District Surveyor surveyed the plots and reported to the Director of Surveys, who was yet to make a final decision. Without a final decision excising the petitioner's land, there was no actionable act. The Director was simply performing his statutory function of being appraised of boundary issues, and no fault could be found in that process.
Whether the boundary dispute raises a constitutional issue justifying a constitutional petition
The dispute is a mere boundary dispute, not a constitutional issue; ordinary remedies must be pursued
The court found merit in the argument that the matter is nothing but a boundary dispute between the petitioner and the 1st and 2nd respondents. Infractions in the conduct of a survey, even if established, should be addressed through avenues such as complaint to the Director of Surveys or ordinary suits, not by stretching the jurisdiction of constitutional petitions too far.
Whether a prohibition order should issue restraining interference with the petitioner's land
No blanket prohibition can issue where there is a live dispute over the extent of boundaries and the respondents' right to challenge title
The respondents were pursuing their rights through Mombasa ELC No. 87 of 2013, challenging the title and Deed Plan No. 91659. Issuing a blanket prohibition would infringe their rights of access to court and to property. A person cannot be stopped from exercising the right to challenge another's title or the extent of boundaries.
Legal principles established
#- A constitutional petition cannot be used to resolve an ordinary boundary dispute; remedies under statute and common law must be pursued in the ordinary manner
- No declaration of unconstitutionality can issue where no decision has in fact been made
- A court cannot prohibit a party from challenging another's title, as that would infringe the right of access to court
Court orders
#- 1.Prayer (a) of the petition (declaration of unconstitutionality of attempted excision) dismissed
- 2.Prayer (b) of the petition (declaration of unconstitutionality of surveying the v-shaped land) dismissed
- 3.Prayer (c) of the petition (prohibition against interference with the petitioner's interest in Deed Plan No. 91659) dismissed
- 4.The petition dismissed with costs to the respondents
- Jurisdiction invoked
- Constitutional petition under the Constitution (Articles 10, 21, 27 and 40 invoked) before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tendulkar Property Limited v Shamshudin Khosla & 4 others [2022] KEELC 475 (KLR)", Case Analysis (2022). Not stated in judgment (petition filed 8 July 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/475/eng@2022-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.