Justus Kiura M'nthaka v Shadrack Kithinji M'murithi
The bottom line
#Kenya's land court struck out a boundary dispute filed before the Land Registrar had first determined the boundary, confirming registration procedures must be exhausted.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over boundary disputes under section 18(2) of the Land Registration Act
The court lacked jurisdiction because the boundary dispute had not first been determined by the Land Registrar as required by sections 18(2) and 19 of the Land Registration Act.
The application sought orders directing the District Land Registrar and Surveyor to place a boundary and allocate a parcel number. Section 18(2) bars the court from entertaining boundary disputes unless the boundaries have been determined under section 19, which vests the fixing of boundaries in the Land Registrar. The court relied on Azzuri Limited, George Kamau Macharia and Willis Ochola to hold that such disputes must first go to the Registrar before escalation to court.
Validity of instituting the claim by way of a notice of motion in a miscellaneous application
The claim was incompetent because a suit with a substantive claim for title over land must be instituted by plaint, petition or originating summons, not by notice of motion without a substantive suit.
Section 19 of the Civil Procedure Act requires suits to be instituted in the manner prescribed by the rules, and Order 3 Rule 1 prescribes plaint, petition or originating summons. The notice of motion, seeking issuance of title, had no substantive suit underpinning it. The court held the procedural failure went to the root of the litigation and could not be cured by Article 159(2)(d) or the inherent jurisdiction under section 3A.
Sustainability of the Respondent's preliminary objection
The preliminary objection was upheld as it raised pure points of law on jurisdiction and mode of commencement.
Applying the Mukisa Biscuit test, the objection raised pure points of law - lack of jurisdiction under section 18(2) of the Land Registration Act and non-compliance with Order 3 Rule 1 - which could be determined on the assumption that the Applicant's facts were correct. The court agreed the proceedings were misconceived and bad in law and struck out the application.
Legal principles established
#- Section 18(2) of the Land Registration Act mandatorily reserves boundary disputes of registered land to the Land Registrar in the first instance, and a court is barred from entertaining such a dispute until the Registrar has determined it.
- A suit commenced otherwise than in the manner prescribed by Order 3 Rule 1 of the Civil Procedure Rules (plaint, petition or originating summons) is incompetent and cannot be salvaged by Article 159 of the Constitution.
Court orders
#- 1.The notice of motion dated 22nd June, 2022 is struck out with costs to the Respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Sections 4, 13, 19 and 21 of the Environment and Land Court Act, Cap 12A
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Kiura M'nthaka v Shadrack Kithinji M'murithi", Case Analysis (2022). Miscellaneous Application (Notice of Motion dated 22nd June, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/526/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.