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ELCDismissedELC Suit No. E085 of 2021· [2023] KEELC 677 (KLR)

Ngaruiya (Suing through her Legal Attorney Mungai Ngaruiya) v Farah & 7 others (Environment & Land Case E085 of 2021) [2023] KEELC 677 (KLR)

Environment and Land Court
8 February 2023
ANA. Nyukuri
1,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ruled it can still hear a land case involving fraud and fake titles, even if a boundary question is also involved.

What this practically means

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Executive summary

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The 2nd, 3rd, 5th and 6th defendants moved the court by notice of motion dated October 15, 2021 seeking withdrawal of ELC Suit No. E085 of 2021 and a declaration that the entire suit was a nullity for want of jurisdiction. They argued that the dispute was a boundary dispute between adjoining parcels (the plaintiff's Mavoko town block 3/3468 and parcels subdivided from Mavoko town block 3/3467), which under section 18(2) of the Land Registration Act must first be determined by the land registrar, relying on George Kamau Macharia v Dexka Limited and William Gacani Mbaria v Charles Kirimi Mbui. The plaintiff opposed, contending the dispute was not a boundary dispute but a fraudulent hiving off of 6.271 ha of his land by the 8th defendant during subdivision of the latter's parcel, followed by creation and sale of new titles to the 1st to 7th defendants; he relied on Taib Investments, Geoffrey Mungai Njenga, Agatha Jeruto Kimaswai and George Mkuzi. The court framed a sole issue: whether it lacked jurisdiction. It held that section 18(2) is mandatory as to undetermined general boundaries, but that section 13(2)(a) of the Environment and Land Court Act concerns fixed boundaries. Interrogating the plaint, the court found the complaints of fraud, illegal subdivision, trespass and the remedies sought (cancellation of titles, eviction, damages, injunction) were matters the land registrar could not determine; the dispute was not just about the boundary. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the ELC lacks jurisdiction over the suit under section 18(2) of the Land Registration Act

Holding

The application failed. The suit involves fraud, illegal subdivision and creation of titles, and prayers for injunction, cancellation, eviction and damages, which the land registrar cannot determine; hence the court has jurisdiction.

Reasoning

Section 18(2) bars court proceedings relating to disputes over boundaries of registered land not determined under that section, reserving unfixed/general boundaries to the land registrar. However, the court must interrogate the plaintiff's complaint and reliefs sought. Here the plaintiff alleges the 8th defendant fraudulently hived off 6.271 ha, subdivided it and issued new titles. Those issues, and remedies of cancellation, eviction and damages, fall outside the land registrar's powers under section 14, so the court retains jurisdiction notwithstanding any boundary element.

p. 4
02

Distinction between the ELC's jurisdiction under section 13(2)(a) of the Environment and Land Court Act and the land registrar's jurisdiction under section 18(2) of the Land Registration Act

Holding

Section 13(2)(a) refers to fixed boundaries, while section 18(2) applies to undetermined boundaries based on cadastral maps which are approximate.

Reasoning

The court distinguished the two statutory jurisdictions: the ELC determines disputes concerning boundaries generally (fixed boundaries), whereas the land registrar's mandate under sections 18(3) and 19 covers boundary disputes where boundaries have not been determined and fixes their precise position. Since the dispute here was not purely about the position of an undetermined boundary, the ouster in section 18(2) was not triggered.

p. 4

Legal principles established

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  • Section 18(2) of the Land Registration Act is mandatory: the court cannot determine disputes as to general/unfixed boundaries of registered land; that is the preserve of the land registrar.
  • Where a suit raises multiple issues beyond a boundary dispute - such as fraud, illegal subdivision, cancellation of titles, eviction and damages - section 18(2) does not oust the ELC's jurisdiction; the land registrar's jurisdiction applies only to purely boundary disputes.

Court orders

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  1. 1.The application dated October 15, 2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Registration Actsection 18(2)
  • Land Registration Actsection 18(3)
  • Land Registration Actsection 19
  • Land Registration Actsection 14
  • Environment and Land Court Actsection 13(2)(a)
  • Environment and Land Court Actsection 13(7)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (6)

  • George Kamau Macharia v Dexka Limited
    [2019] eKLR
  • William Gacani Mbaria v Charles Kirimi Mbui
    [2018] eKLR
  • Taib Investments Limited v Fahim Salim Said & 5 others
    [2016] eKLR
  • Geoffrey Mungai Njenga & another v Registrar of Titles & another
    [2021] eKLR
  • Agatha Jeruto Kimaswai v Attorney General & 3 others
    [2021] eKLR
  • George Mkuzi v Modern Coast Builders & Contractors Ltd & another
    [2021] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; sections 13(2)(a) and (7) of the Environment and Land Court Act; section 18(2) of the Land Registration Act

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, "Ngaruiya (Suing through her Legal Attorney Mungai Ngaruiya) v Farah & 7 others (Environment & Land Case E085 of 2021) [2023] KEELC 677 (KLR)", Case Analysis (2023). ELC Suit No. E085 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/677/eng@2023-02-08

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