Thiong'o v Oliverjoy Properties Developers (Environment & Land Case E338 of 2022) [2023] KEELC 912 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a boundary dispute because the Land Registrar must fix boundaries first—courts come second, not first.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case for an interlocutory injunction under the Giella v Cassman Brown principles
No - although the plaintiff demonstrated ownership of the suit property, she did not demonstrate any actions by the defendant that would interfere with her title or possession, particularly given the unchallenged resurvey report of 15 August 2022.
The court applied Order 40 rule 1 of the Civil Procedure Rules and the Giella v Cassman Brown principles. The plaintiff's title was unopposed, but she adduced no evidence of interference by the defendant. The Regional Surveyor's report confirmed the ground measurements accorded with the sealed RIM, and the plaintiff neither disputed nor challenged that report.
Whether the court had jurisdiction over what is essentially a boundary dispute between registered proprietors
No - the dispute is a boundary concern which must first be determined by the Land Registrar under sections 18, 19 and 20 of the Land Registration Act before any court action is entertained.
The court found the real issue was boundaries, following a beacon re-establishment process. Sections 18 and 19 of the Land Registration Act vest the fixing of boundaries in the Land Registrar, and section 18(2) bars the court from entertaining boundary disputes unless the statutory process has been followed. Since the Registrar had not investigated and made a finding, the suit was prematurely filed and the court declined jurisdiction.
Legal principles established
#- Under section 18(2) of the Land Registration Act, a court cannot entertain any action relating to a dispute as to boundaries of registered land unless the boundaries have first been determined in accordance with that section, and the duty to fix boundaries is vested in the Land Registrar.
- A court must down its tools where jurisdiction is inappropriately and prematurely invoked because the statutory boundary-determination process before the Land Registrar has not been exhausted.
Court orders
#- 1.The plaintiff's notice of motion application dated 13th October 2022 is dismissed
- 2.The suit is struck out for want of jurisdiction
- 3.No orders as to costs
- Jurisdiction invoked
- Land Registration Act, sections 18-20; Civil Procedure Rules Order 40 rule 1(a) and (b)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thiong'o v Oliverjoy Properties Developers (Environment & Land Case E338 of 2022) [2023] KEELC 912 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/912/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.