Olwah v Ondatta (Environment and Land Appeal 11 of 2021) [2022] KEELC 2952 (KLR)
The bottom line
#Kenyan courts cannot decide land boundary disputes until the Land Registrar first determines the boundary, so suing directly wastes everyone's time.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court had jurisdiction to entertain the dispute given the undetermined boundary
The trial magistrate correctly held that the court lacked jurisdiction because the boundary dispute had not been determined by the Land Registrar as required by sections 18(2) and 19 of the Land Registration Act.
Section 18(2) of the LRA bars the court from entertaining any action relating to a dispute as to boundaries of registered land unless the boundaries have been determined under that section. The expert reports, including the Land Registrar's report of 14th June 2017, recommended a resurvey and fixing of the boundary, confirming the boundary was undetermined. The appellate court held the magistrate's reliance on the LRA and related authorities was correct, though her analysis of encroachment was superfuous once jurisdiction failed.
Whether dismissing rather than striking out the suit was erroneous
Ground 5 of the appeal succeeded only to the extent that the suit should have been struck out rather than dismissed, and the final order was substituted accordingly.
The court accepted that where a court lacks jurisdiction it should down its tools and could not grant the orders prayed; the proper course is to strike out rather than dismiss the suit. The dismissal order was therefore varied to a striking-out with no orders as to costs, while the rest of the decision was substantially upheld.
Weight of expert evidence on the boundary and resurvey
Expert evidence is not binding on the court; the various surveyors' reports confirmed that a resurvey and fixing of the boundary was recommended and had not been done.
PW3's general survey report did not show encroachment; both DW1 and DW2 recommended a resurvey. The Land Registrar's report of 14th June 2017 advised the applicant to seek court orders to enable a resurvey, fixing of the boundary and opening of the access road. Under sections 48 to 54 of the Evidence Act the court may accept or reject expert evidence, but here the reports uniformly confirmed the boundary remained undetermined.
Legal principles established
#- Where a statute provides a clear procedure for redress of a grievance, that procedure must be adhered to
- The Land Registrar and Surveyor are mandated under sections 18, 19 and 20 of the Land Registration Act to deal with disputes concerning boundaries of registered land before the court may entertain such a dispute
- A court that lacks jurisdiction has no power to make one more step
Court orders
#- 1.The last paragraph of the trial court's judgment that 'the suit is dismissed with no orders as to costs' is substituted with the words 'the suit is struck out with no orders to costs'.
- 2.The trial court's decision rendered on 6th November 2019 is substantially upheld.
- 3.The appeal is dismissed with no orders as to costs.
- On appeal from
- Oyugis PM's Court (Environment and Land Case No. 35 of 2018)
- Oyugis PM's Court ELC No. 35 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court; transfer effected under Articles 6(3) and 48 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olwah v Ondatta (Environment and Land Appeal 11 of 2021) [2022] KEELC 2952 (KLR)", Case Analysis (2022). Environment and Land Case (Appeal) at Homa Bay – memorandum of appeal dated 5th March 2020, lodged 6th March 2020 (from Oyugis PM's Court Environment and Land Case No. 35 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2952/eng@2022-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.