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ELCPartially AllowedKiambu ELC Appeal (unnumbered in extract; arising from Kiambu CMC E & L Case No 25 of 2020)· [2022] KEELC 3046 (KLR)

Gituro v Njeri; Thuo (Interested Party) (Environment and Land Appeal E088 of 2021) [2022] KEELC 3046 (KLR)

Environment and Land Court
23 May 2022
BEB M Eboso
3,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Thika (B M Eboso J) allowed in part an appeal against a ruling of 12/10/2021 by Hon Wilson Rading, SRM, in Kiambu CMC E & L Case No 25 of 2020. The respondent had sued the appellant, claiming to be the registered proprietor of parcel Githunguri/Kanjai/2914 and seeking a permanent injunction against encroachment; the appellant counterclaimed as proprietor of the adjacent parcel Githunguri/Kanjai/2916, alleging she was mistakenly occupying his parcel. In the impugned ruling the magistrate admitted an interested party, allowed the respondent's injunction application, and adopted the County Surveyor's report, directing rectification of mutation forms and the registry index map. On appeal, the court first rejected the contention that the magistrate lacked jurisdiction because of a High Court preservation order in Nairobi Succession Cause No 504 of 1987: both parties had invited the magistrate to adjudicate, neither challenged jurisdiction formally, and the proper remedy was a stay application before the magistrate or the High Court. Second, the court held the dispute was a boundary dispute reserved by Sections 18 and 19 of the Land Registration Act for determination by the Land Registrar, and that the magistrate erred in assuming jurisdiction and in issuing final rectification orders at an interlocutory stage without a prayer or trial. The ruling and orders were set aside and substituted with a stay of the suit pending the Land Registrar's boundary determination; each party to bear their own costs of the appeal.

Key legal issues

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01

Whether the magistrate's court could exercise jurisdiction notwithstanding the High Court preservation order in the succession cause

Holding

The ground was not bona fide; both parties invited the court to exercise jurisdiction and the appellant never filed a formal application for stay of proceedings in the proper forum.

Reasoning

Both parties presented parallel claims and interlocutory applications to the magistrate's court and invited it to adjudicate them. The appellant knew of the 5/11/2018 High Court preservation order yet sought a permanent injunction at the interlocutory stage. The proper course was a formal stay application before either the magistrate's court or the High Court, not an appeal attacking his own invocation of jurisdiction.

p. 6
02

Whether the magistrate erred in ordering rectification of mutation forms and the registry index maps at the interlocutory stage

Holding

Yes. The dispute was a boundary dispute reserved for the Land Registrar under Sections 18 and 19 of the Land Registration Act, and final orders of rectification were issued without a prayer and without a trial.

Reasoning

Both plaint and counterclaim revealed a boundary dispute. Section 18(2) precludes courts from entertaining boundary disputes unless determined by the Land Registrar; the magistrate should have referred the dispute there and exercised jurisdiction only after a determination. He also issued final rectification orders on interlocutory applications, effectively determining the suit without a proper trial or hearing.

p. 6

Legal principles established

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  • Where a dispute between registered proprietors is a boundary dispute, the court lacks jurisdiction until the Land Registrar has determined the boundaries under Sections 18 and 19 of the Land Registration Act
  • A party who invites a court to exercise jurisdiction without raising a formal challenge to jurisdiction cannot later attack the proceedings on jurisdictional grounds on appeal
  • A court seized of interlocutory applications should not issue final orders without a trial

Court orders

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  1. 1.The Ruling and Orders rendered on 12/10/2021 by Hon W Rading, Senior Resident Magistrate, in Kiambu CMC E & L Case No 25 of 2020 are set aside and substituted with an order staying proceedings in the said suit until the boundaries of the parcels of land in dispute are determined by the Land Registrar within the framework of Section 18 of the Land Registration Act
  2. 2.Parties shall bear their respective costs of this appeal

Authorities

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Legislation

  • Law of Succession ActSection 45
  • Land Registration ActSections 18, 18(2), 18(3), 19
  • Civil Procedure RulesOrder 40 rule 6

Cases cited (3)

  • Susan Munyi v Keshar Shiani
    (2013) eKLR
  • Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Kenya Ports Authority vs Kustron (Kenya) Limited
    2000 2EA 212
On appeal from
Chief Magistrate's Court, Kiambu (Environment and Land)
CMC E & L Case No 25 of 2020
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over rulings of subordinate courts in environment and land disputes

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, "Gituro v Njeri; Thuo (Interested Party) (Environment and Land Appeal E088 of 2021) [2022] KEELC 3046 (KLR)", Case Analysis (2022). Kiambu ELC Appeal (unnumbered in extract; arising from Kiambu CMC E & L Case No 25 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3046/eng@2022-05-23

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