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ELCAllowedBungoma Environment and Land Court Appeal (from Bungoma Chief Magistrate's Court Environment and Land Court Case No. 4 of 2019)· [2022] KEELC 1136 (KLR)

Apollo Omusula Manyasi v Kariuki Kiragu [2022] KEELC 1136 (KLR)

Environment and Land Court
16 February 2022
BOBoaz N. Olao
3,186 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Bungoma against a ruling of Hon. J. King'ori, Chief Magistrate, delivered on 14th July 2020 in Bungoma CM Environment and Land Court Case No. 4 of 2019, in which the trial Magistrate declined jurisdiction mid-trial after the appellant (plaintiff) had begun his testimony, holding that the dispute was a boundary dispute reserved for the Land Registrar under Section 18(2) of the Land Registration Act. The appellant appealed on six grounds, principally that the Magistrate erred in declining jurisdiction over a claim for permanent injunction and rectification/restitution of a common boundary, and did so suddenly and without reasons. Boaz N. Olao J first noted discrepancies between the handwritten and typed trial proceedings, cautioning judicial officers on record-keeping, and observed that a civil case has no 'accused'. On the core issue, the Court held that Section 18(2) of the Land Registration Act is not a complete ouster of the Court's jurisdiction: where a boundary has already been determined by the Land Registrar, a claim that the neighbour crossed or interfered with it is essentially trespass, which the Court is seized of. Both parties pleaded that the boundary had been rectified and beacons re-installed since 2003, so the Registrar was functus officio, and both parties conceded the trial Court's jurisdiction. The Court distinguished Willis Ocholla v Mary Ndege and George Kamau Macharia v Dexka Ltd, where jurisdiction had been challenged by Preliminary Objection. The Court further faulted the Magistrate for declining jurisdiction suo moto without reasons, holding every decision must contain reasons. The appeal was allowed, the orders of 14th July 2020 set aside and substituted with a declaration that the trial Magistrate had jurisdiction, the case transferred to Hon. Gesora, Chief Magistrate, with costs of the appeal to the Respondent.

Key legal issues

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01

Whether the trial Magistrate had jurisdiction over the dispute

Holding

The trial Magistrate had jurisdiction because the boundary had already been rectified and re-installed by the Land Registrar on several occasions, making this a claim in trespass rather than an undetermined boundary dispute.

Reasoning

Both parties pleaded that the Land Registrar had, since 2003, rectified the common boundary and re-installed beacons. Notices of boundary determination were among the appellant's documents, and the Land Registrar and Surveyor were listed as witnesses. Section 18(2) of the Land Registration Act bars the Court only where the boundary has not been determined by the Registrar; once determined, an allegation of encroachment is trespass, within the Court's jurisdiction. Both parties also conceded the Court's jurisdiction.

p. 4
02

Whether the trial Magistrate's suo moto declination of jurisdiction without reasons was proper

Holding

It was erroneous; the Magistrate failed to give reasons for declining jurisdiction, and without reasons the decision could not stand scrutiny.

Reasoning

Since neither party had questioned his jurisdiction, the Magistrate, having raised the issue suo moto, was required to deliver a ruling setting out the legal basis for declining jurisdiction. His brief oral order that the matter was a boundary dispute was 'hardly sufficient'. Reasons enable aggrieved parties to assess misdirection and mount appeals. No reasons were given, justifying the complaint that the declination was 'sudden'.

p. 4
03

Whether the authorities relied on by the Respondent supported declination of jurisdiction

Holding

Neither Willis Ocholla v Mary Ndege nor George Kamau Macharia v Dexka Ltd aided the Respondent, because in both cases jurisdiction had been challenged by a Preliminary Objection, unlike here.

Reasoning

In Willis Ocholla the jurisdictional challenge came via Preliminary Objection and there was only a recommendation that the Land Registrar visit the site. In Macharia a Preliminary Objection was likewise raised. Here, both parties conceded jurisdiction and confirmed the boundary had been fixed, distinguishing both authorities.

p. 4

Legal principles established

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  • Section 18(2) of the Land Registration Act is not a complete ouster of the Court's jurisdiction; the Court must down its tools only where the boundary has not been determined by the Land Registrar
  • A claim that a party has crossed or interfered with an already-determined boundary is essentially a claim in trespass, which falls to the Court rather than the Land Registrar
  • Every judicial decision, including a ruling declining jurisdiction suo moto, must contain reasons
  • Without jurisdiction a Court must down its tools, and an issue of jurisdiction may be raised by the Court on its own motion

Court orders

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  1. 1.The appeal is allowed
  2. 2.The orders made on 14th July 2020 are set aside and substituted with an order that the trial Magistrate had jurisdiction to hear and determine the dispute before him
  3. 3.As Hon J. King'ori – Chief Magistrate has since been transferred, the case be heard by Hon Gesora – Chief Magistrate
  4. 4.The Respondent shall meet the costs of this appeal

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Constitution of KenyaArticles 159(d) and 160(1) (raised in grounds of appeal)

Cases cited (3)

  • OWNERS OF MOTOR VEHICLE 'LILLIAN S' v CALTEX OIL KENYA LTD
    1989 KLR 1
  • WILLIS OCHOLLA v MARY NDEGE
    2016 eKLR
  • GEORGE KAMAU MACHARIA v DEXKA LTD
    2019 eKLR
On appeal from
Bungoma Chief Magistrate's Court (Environment and Land Court)
Environment and Land Court Case No. 4 of 2019
Jurisdiction invoked
First appeal to the Environment and Land Court from the Chief Magistrate's Court under the Land Registration Act/Environment and Land Court framework (no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Apollo Omusula Manyasi v Kariuki Kiragu [2022] KEELC 1136 (KLR)", Case Analysis (2022). Bungoma Environment and Land Court Appeal (from Bungoma Chief Magistrate's Court Environment and Land Court Case No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1136/eng@2022-02-16

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