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ELCStruck OutELC Suit No. E415 of 2021· [2022] KEELC 1400 (KLR)

Sasomuma Holdings Company Limited v Kenya National Highways Authority [2022] KEELC 1400 (KLR)

Environment and Land Court
17 February 2022
3,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~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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The Plaintiff, Sasomuma Holdings Company Limited, registered owner of LR. No. Kiambaa/Ruaka/1824, moved the Environment and Land Court by notice of motion dated 1 December 2021 seeking temporary conservatory orders restraining the Kenya National Highways Authority (KeNHA) from trespassing onto, entering, demolishing structures on, or interfering with the suit property, which KeNHA had notified as encroaching on the Ruaka/Kamandura Road reserve. Though served, the Defendant neither entered appearance nor responded, and the application was disposed of by oral submissions by the Plaintiff's counsel. The court framed three issues: its jurisdiction, whether the suit was an abuse of due process, and entitlement to a temporary injunction. Relying on Section 18(2) of the Land Registration Act, 2012, the court held that a boundary dispute between registered land and a road reserve belongs to the Land Registrar, whose statutory process (boundary notices issued, site visited, survey done, report pending) had to be exhausted before approaching the court; the court was therefore deprived of jurisdiction. The court further held that filing the suit while the Registrar's process was pending, and after an earlier suit (ELC No. 287 of 2019) on the same subject had been struck out for want of jurisdiction, amounted to an abuse of the due process of the court. Without jurisdiction, no prima facie case could arise, so no temporary injunction could issue. The court struck out both the application and the entire suit, with no orders as to costs.

Key legal issues

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01

Whether the court had jurisdiction over the suit and application concerning a boundary dispute between the suit property and a road reserve

Holding

The court had no jurisdiction; Section 18(2) of the Land Registration Act bars the court from entertaining boundary disputes unless the boundaries have been determined in accordance with that section, and the Land Registrar's process was still pending.

Reasoning

The dispute concerned the extent and boundary of the suit property vis-à-vis the Ruaka/Kamandura Road reserve, a matter statutorily assigned to the Land Registrar. The Registrar had issued boundary notices, visited the site and conducted measurements, but had not yet prepared the report or demarcated the boundary. Since the boundary remained undetermined, the statutory bar in Section 18(2) applied and the court was deprived of jurisdiction; the statutory dispute mechanism had to be exhausted first.

p. 3
02

Whether the suit and application amounted to an abuse of the due process of the court

Holding

Yes - the suit was filed prematurely, during the pendency of the boundary process before the Land Registrar, and after an earlier suit (ELC No. 287 of 2019) on the same subject matter had been struck out for want of jurisdiction.

Reasoning

The plaintiff had previously filed ELC No. 287 of 2019 against the same defendant over the same subject matter, which was struck out for want of jurisdiction. Despite that, and while the Land Registrar's boundary process remained unconcluded, the plaintiff filed the present suit seeking the same or near-same orders. Citing Muchanga Investments and the Nigerian authority Sarak v Kotoye, the court held that instituting multiplicity of actions on the same subject matter, and filing suit while a statutory process was pending, amounted to abuse of judicial process.

p. 5
03

Whether the plaintiff was entitled to a temporary injunction

Holding

No - without jurisdiction the court could not find a prima facie case, an essential ingredient for a temporary injunction.

Reasoning

Applying the Mrao Ltd v First American Bank definition, a prima facie case requires an apparent infringement of a right calling for explanation or rebuttal. The court held that where it is not seized of jurisdiction, no prima facie case can arise at all. Since the court had found it lacked jurisdiction over the undetermined boundary dispute, the plaintiff could not establish a prima facie case and was not entitled to the temporary conservatory orders sought.

p. 5

Legal principles established

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  • Where a statute provides a specific mechanism for determination of a particular dispute, that avenue must be exhausted before approaching the court.
  • A court is deprived of jurisdiction over boundary disputes of registered land unless the boundaries have first been determined in accordance with the Land Registration Act.
  • A court without jurisdiction must down its tools and cannot assume jurisdiction by interpretive craft.
  • Filing a suit whose import is to achieve the same orders as those being pursued in a pending statutory process constitutes an abuse of due process.

Court orders

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  1. 1.The subject Notice of Motion application dated 1st December 2021 and the suit premised on the Plaint dated 1st December 2021 are struck out with no orders as to costs.

Authorities

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Legislation

  • Environment and Land Court ActSection 13(7)
  • Land Registration ActSection 18(1) and 18(2)
  • Constitution of Kenyaright of access to justice; Article 163(3) (as referenced in quoted authority)

Cases cited (7)

  • Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others
    [2017] eKLR
  • Esther Gachambi Mwangi v Samuel Mwangi Mbiri
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No. 2 of 2011
  • MUCHANGA INVESTMENTS LTD v SAFARIS UNLIMITED (AFRICA) LTD & 2 others
    [2009] eKLR
  • SARAK v KOTOYE
    (1992) 9 NWLR (pt 264) 156
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and the Environment and Land Court Act, 2011 (court seated under its statute); jurisdiction found wanting under Section 18(2) of the Land Registration Act, 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, "Sasomuma Holdings Company Limited v Kenya National Highways Authority [2022] KEELC 1400 (KLR)", Case Analysis (2022). ELC Suit No. E415 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1400/eng@2022-02-17

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