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ELCDismissedMiscellaneous Application dated 17.11.2022· [2023] KEELC 810 (KLR)

Teresiah Kabilu M'Kieri v Agnes Kaimuri M' Ikiara & 2 others

Environment and Land Court
15 February 2023
NJNot stated in judgment
1,908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who waited four months to appeal lost her bid, and the disputed boundary survey will proceed as law requires.

What this practically means

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Executive summary

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The applicant, Teresiah Kabilu M'Kieri, sought leave to appeal out of time against a trial court ruling of July 20, 2022, and a temporary injunction suspending the 2nd respondent's intended survey to establish boundaries and erect beacons over LR Nos. Njia/Cia-Mwendwa/7 and 194. She contended she was condemned unheard, that the proceedings were an attempt by the 1st respondent to illegally acquire land she has occupied since 1978, and that no substantive suit had been filed. The 1st respondent opposed, recounting repeated obstruction of boundary-establishment visits since December 2018 and successive applications by the applicant to halt the exercise, culminating in the July 20, 2022 ruling dismissing her application as res judicata. The 1st respondent argued the applicant failed the Salat criteria, there being an unexplained four-month delay. The court, exercising jurisdiction under Sections 79G and 95 of the Civil Procedure Act, applied the principles in Nicholas Kiptoo Arap Korir Salat v IEBC. It held that the trial court merely facilitated the 2nd respondent's statutory mandate under Section 18 of the Land Registration Act and the Survey Act, that a substantive suit could only follow the boundary determination report, and that the applicant's fears of dispossession were far-fetched since she would have an opportunity to dispute the report. The unexplained four-month delay was fatal. The application dated November 17, 2022 was dismissed with costs, and the court directed that the scene visit proceed within two months as earlier directed by the trial court.

Key legal issues

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01

Whether the applicant met the Salat criteria for extension of time

Holding

The application failed; the four-month delay was unexplained

Reasoning

The court applied the principles in Nicholas Kiptoo Arap Korir Salat v IEBC, which require a deserving party to lay a basis for the discretion, explain any delay, and show absence of prejudice. The applicant's delay of four months was not explained to the court's satisfaction, and no prejudice would arise since the survey report could still be disputed in a substantive suit.

p. 4
02

Whether the trial court's orders facilitating a boundary survey were improper absent a substantive suit

Holding

The orders were proper facilitation of the surveyor's statutory mandate

Reasoning

The trial court merely issued orders enabling the 2nd respondent to exercise its statutory mandate under Section 18 of the Land Registration Act and the Survey Act. Section 18(2) bars courts from entertaining boundary disputes until boundaries are determined through the statutory survey process, after which an aggrieved party may file a substantive suit.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party who explains delay and shows no prejudice
  • A boundary determination report must precede any substantive suit over a boundary dispute under Section 18(2) of the Land Registration Act

Court orders

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  1. 1.The application dated November 17, 2022 is dismissed with costs
  2. 2.The scene visit is to be undertaken within 2 months from the date of the judgment as earlier directed by the trial court

Authorities

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Legislation

  • Civil Procedure ActSections 79G, 95
  • Land Registration ActSections 18(2), 19(3), 20, 21
  • Survey ActCap 299
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 3

Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat vs IEBC
    (2014) eKLR
  • Patrick Okefe vs Jonathan Savage
    (2020) eKLR
  • Mellen Mbera vs James Theuri Wambugu
    (2020) eKLR
  • Menkar Ltd vs Ratilal Ghela Samat Shah & 2 others
    (2019) eKLR
  • Amalgamated Society of Engineers vs Adelaide Steamship
    (1920) 28 CLR 529
On appeal from
Trial court (magistrates' court)
Misc Application No 2 of 2019
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act (extension of time to appeal)

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, "Teresiah Kabilu M'Kieri v Agnes Kaimuri M' Ikiara & 2 others", Case Analysis (2023). Miscellaneous Application dated 17.11.2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/810/eng@2023-02-15

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