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ELCDismissedEnvironment & Land Case 128 of 2018· [2023] KEELC 16516 (KLR)

Fumo v Farah

Environment and Land Court
21 March 2023
NMN. A. Matheka
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts won't hear land boundary disputes until the Land Registrar has first determined where the boundary actually lies.

What this practically means

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Executive summary

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The plaintiff, sibling of the defendant, sued claiming that on 2 January 2013 the defendant erected a four-bedroom house encroaching five metres onto his plot, Plot No 6401/I/MN, with the larger portion on a public access road, alleging trespass and breach of his constitutional right to property. He sought a declaration of trespass, demolition, vacant possession, a permanent injunction, costs and interest. The defendant, who did not participate in the trial despite service evidenced by an affidavit of service dated November 16, 2022, filed a counterclaim asserting the plaintiff held only a small share of the estate per Kadhi Succession Case No 21 of 2006, that the property belonged to their father though registered in their late mother's name, and seeking dismissal of the suit, valuation of the plaintiff's share and payment off. The court noted both parties produced certificates of title showing multiple co-registered proprietors for each plot and that the parcels share a common boundary. Holding that the cause of action was anchored on the boundary between the parcels, the court invoked Sections 18 and 19 of the Land Registration Act and Rule 40 of the Land Registration Rules, which require boundary disputes to be first determined by the Land Registrar. Applying Henry Kosgey v Brian Cuthbert, the court found the suit incompetent and premature and dismissed the amended plaint with no order as to costs, the parties being siblings. The counterclaim was not expressly addressed.

Key legal issues

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01

Prematurity of suit where boundary not determined by Land Registrar

Holding

The suit was incompetent and premature because the boundary dispute had not first been resolved by the Land Registrar under Sections 18 and 19 of the Land Registration Act

Reasoning

The court found that both parties' pleadings were anchored on the boundary between the two parcels. Sections 18 and 19 of the Land Registration Act bar the court from entertaining boundary disputes unless the boundaries have been determined under those provisions. Rule 40 of the Land Registration Rules requires an application to the Land Registrar first. Following Henry Kosgey v Brian Cuthbert, the court held the plaintiff moved prematurely and dismissed the plaint.

p. 2

Legal principles established

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  • A boundary dispute over registered land must first be determined by the Land Registrar before the court can entertain it

Court orders

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  1. 1.The amended plaint dated July 27, 2022 is dismissed with no order as to costs

Authorities

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Legislation

  • Land Registration ActSections 18, 19
  • Land Registration RulesRule 40
  • Survey ActCap. 299
  • Constitution of Kenyaright to property (pleaded by plaintiff)

Cases cited (1)

  • Hon. Henry Kosgey vs Brian Cuthbert & another
    (2019) eKLR

    That a suit over an undetermined boundary is premature before the court

Jurisdiction invoked
Environment and Land Court jurisdiction; suit dismissed for prematurity under Sections 18 and 19 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fumo v Farah", Case Analysis (2023). Environment & Land Case 128 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16516/eng@2023-03-21

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