Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutPetition and Notice of Motion dated 2nd June 2021 (Kisumu ELC)· [2022] KEELC 501 (KLR)

Adah Anyango Ombere v Kenya Railways Corporation & 5 others [2022] KEELC 501 (KLR)

Environment and Land Court
31 March 2022
2,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner's petition over a boundary dispute was struck out because she had not first taken the matter to the Land Registrar.

What this practically means

#

Executive summary

#
The Petitioner filed a Petition and Application on 2nd June 2021 alleging that on 7th February 2021 security officers acting on instructions of the Respondents demolished her family's fences and buildings on land parcel KORU SETTLEMENT SCHEME/555, which she held as administratrix of the estate of Freda Achola Omolo. The 1st Respondent raised a preliminary objection arguing the suit was res judicata under section 7 of the Civil Procedure Act, having been dismissed in Tamu CMELC No. 8 of 2021 for want of jurisdiction; that section 18(2) of the Land Registration Act vests primary jurisdiction over boundary disputes in the Land Registrar; and that the suit was forum shopping and an abuse of process. The Petitioner countered that the objection rested on unproved facts, that the Tamu dismissal was on a technicality and by an incompetent court, and that she had invoked the Registrar whose process the court could direct. The court, applying Oraro v Mbaja, the Bernard Mugo Ndegwa criteria, and E.T v Attorney General, found the parties, subject matter and claim identical to the Tamu suit, with added parties insufficient to evade res judicata. It further held, following George Kamau Macharia v Dexka Limited, that the dispute concerned general boundaries which must first be determined by the Land Registrar under sections 18 and 19 of the Land Registration Act, so the court lacked jurisdiction. The court upheld the preliminary objection, struck out the Petition and Application, and awarded costs to the 1st Respondent.

Key legal issues

#
01

Whether the suit is res judicata

Holding

The suit is res judicata; the Tamu suit involved the same parties, same subject matter (KORU SETTLEMENT SCHEME/555) and same boundary dispute, and adding parties does not evade the doctrine

Reasoning

The court examined the ruling in Tamu CMELC No. 8 of 2021 and found the parties identical save for added respondents, the matter in issue (boundary dispute over parcel KORU SETTLEMENT SCHEME/555) the same, and the claim the same. Relying on section 7 of the Civil Procedure Act and the Bernard Mugo Ndegwa criteria, it held the Petitioner was re-litigating a resolved claim in a new form. It also noted the Tamu court, while declining jurisdiction, struck out the suit with costs.

p. 4
02

Whether the court has jurisdiction over the boundary dispute

Holding

The court lacks jurisdiction because the dispute concerns general boundaries which must first be determined by the Land Registrar under sections 18 and 19 of the Land Registration Act

Reasoning

Section 18(2) bars the court from entertaining boundary disputes over registered land unless boundaries have been determined under the section. The Petitioner admitted she had not completed the Registrar process, having only requested a survey which the Registrar ignored. Following George Kamau Macharia v Dexka Limited, the court held the Land Registrar has the technical resources to fix general boundaries first, and the petition was prematurely before the court. The court also found the matter res judicata independently, having confirmed the parties, subject matter, and claim were the same as in Tamu CMELC No. 8 of 2021.

p. 4

Legal principles established

#
  • A preliminary objection must be a pure point of law and cannot depend on contested facts or evidence
  • Res judicata applies where the matter in issue, parties, title, jurisdiction and finality coincide; adding parties or causes of action does not evade it
  • Courts may not entertain boundary disputes over registered land with general boundaries until the Land Registrar determines the boundaries under section 18

Court orders

#
  1. 1.The Preliminary Objection is upheld
  2. 2.The Petition and Application are struck out
  3. 3.Costs to the 1st Respondent

Authorities

#

Legislation

  • Civil Procedure Actsection 7
  • Land Registration Actsections 18(1), 18(2), 18(3), 19(1), 19(2), 19(3)
  • Survey Actreferenced in section 18 proviso

Cases cited (12)

  • Wensley Barasa v Immaculate Awino Abongo & Another
    (2020) eKLR
  • Engineer E.M. Kithimba T/A Kithimba Associates Consulting Engineers v Attorney General & Another
    (2014) eKLR
  • MWK vs AMW
    (2016) eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited
    Civil Appeal No. 50 of 1989 eKLR
  • George Kamau Macharia v Dexka Limited
    [2019] eKLR
  • Quick Enterprises Ltd vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Oraro vs. Mbaja
    [2005] 1 KLR 141
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • E.T vs Attorney General & Another
    (2012) eKLR
  • Omondi Vs National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu vs Wambugu and another
    Nairobi HCCC No.2340 of 1991 (unreported)
  • Adah Anyango Ombere vs Kenya Railways Corporation and the National Land Commission
    Tamu CMELC No. 8 of 2021
Jurisdiction invoked
Article 162(2)(b) constitutional jurisdiction of the Environment and Land Court; jurisdiction ousted by section 18(2) of the Land Registration Act and section 7 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Adah Anyango Ombere v Kenya Railways Corporation & 5 others [2022] KEELC 501 (KLR)", Case Analysis (2022). Petition and Notice of Motion dated 2nd June 2021 (Kisumu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/501/eng@2022-03-31

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