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ELCDismissedEnvironment & Land Case 13 of 2023· [2023] KEELC 18226 (KLR)

John Sakaja & 2 others v Nyokabi Mariga & 2 others

Environment and Land Court
20 June 2023
FNFred Nyagaka
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that disputes over cultivating a road reserve are not boundary disputes, so landowners can sue directly without first visiting the Land Registrar.

What this practically means

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Executive summary

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The Plaintiffs, registered owners of three parcels of land in Kitale, sued the Defendants, registered owners of adjoining parcels, claiming that the Defendants had encroached upon and cultivated a 3-acre area reserved in 1952 for a 40-ft access road off the Kitale-Webuye Road, destroying beacons and impeding access. They sought mandatory and permanent injunctions, costs and interest. The 3rd Defendant filed a preliminary objection contending that the suit offended Section 18(2) of the Land Registration Act, which bars courts from entertaining boundary disputes over registered land unless the boundaries have first been determined by the Land Registrar, and that the doctrine of exhaustion required the Plaintiffs to go to the Registrar first; he urged that the suit be struck out. The court, per Nyagaka J, framed a single issue: whether the dispute was a boundary dispute. Restating the Mukisa Biscuit definition of a preliminary objection, the court held the Section 18(2) point was a pure point of law. However, on the pleadings, the Plaintiffs never alleged a common boundary with the Defendants; their complaint concerned cultivation of a road reserve. Applying Black's Law Dictionary's definition of a boundary, the court held that a road of access does not delineate the confines of real property and cannot found a boundary dispute for the Land Registrar. The preliminary objection was dismissed as unmeritorious and an abuse of process, with costs to the Plaintiffs. The court also directed inter partes hearing of the injunction application on July 3, 2023, with page-limited written submissions.

Key legal issues

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01

Whether the dispute is a boundary dispute ousting the Court's jurisdiction under Section 18(2) of the Land Registration Act

Holding

It is not; the Plaintiffs' claim concerns encroachment and cultivation of a road reserve, not a boundary between adjoining parcels

Reasoning

The court perused the Plaint and found no averment of a common boundary between the parties. The complaint was that the Defendants were cultivating land reserved for an access road, obstructing access. Applying Black's Law Dictionary's definition of a boundary, the court held a road does not delineate the confines of real property, so Section 18(2) does not apply and the Land Registrar has no prior jurisdiction.

p. 4
02

Whether the objection qualifies as a proper preliminary objection on a point of law

Holding

Yes, it qualifies as a point of law under the Mukisa Biscuit definition, but it fails on its merits

Reasoning

The court restated the classic definition from Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd: a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact must be ascertained. The Section 18(2) point was a point of law, but the pleadings did not disclose a boundary dispute.

p. 4

Legal principles established

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  • A road of access is not a boundary within the meaning of Section 18(2) of the Land Registration Act; a dispute over cultivation of a road reserve is not a boundary dispute for the Land Registrar

Court orders

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  1. 1.The 3rd Defendant's Notice of Preliminary Objection dated March 15, 2023 is dismissed with costs to the Plaintiffs
  2. 2.The Application dated March 7, 2023 is fixed for inter partes hearing virtually on July 3, 2023 at 8.30 am
  3. 3.Parties given three (3) days each to file and serve written submissions on the Application, not exceeding three typed pages, New Times Roman Font 12, 1.5 spacing

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Environment and Land Court ActSection 13(2)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (10)

  • Willis Ochola v. Mary Ndege
    Kisumu ELC Land Case No 137 of 2015 (2016) eKLR

    Exposition of Section 18(2) of the Land Registration Act on boundary disputes

  • Amalgamated Society of Engineers v. Adelaide Steamship
    (1920) 28 CLR 129

    As cited in Menkar Limited on jurisdictional characterisation

  • Menkar Limited v. Ratilal Ghela Samat Shah & 2 others
    [2019] eKLR

    Relied on for the Engineers case approach to jurisdiction

  • Nicholus v. Attorney General & 14 others; National Environment Complaints Committee (NCEC) & 5 Others (Interested Parties)
    (Civil Appeal 42 of 2021) [2023] KECA 34 (KLR)

    As cited in Night Rose Cosmetics on jurisdiction

  • Night Rose Cosmetics [1972] Limited vs Nairobi County Government & 2 Others
    [2018] eKLR

    Cited for jurisdictional principles

  • Estate Sonrisa Ltd & Another v. Samuel Kamau Macharia & 2 others
    (2020) eKLR

    Jurisdiction is everything; a court cannot assume jurisdiction

  • Adah Anyango Ombere v Kenya Railways Corporation & 5 others
    [2022] eKLR

    Suit filed before exhausting statutory mechanism

  • Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] e KLR

    Preliminary objections must be sufficiently particularised

  • Susan Wairimu Ndiangui v Pauline W. Thuo & another
    [2005] eKLR

    A preliminary objection should not be vague

Jurisdiction invoked
Environment and Land Court Act, Article 162(2) of the Constitution (ELC jurisdiction); objection raised under 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, "John Sakaja & 2 others v Nyokabi Mariga & 2 others", Case Analysis (2023). Environment & Land Case 13 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18226/eng@2023-06-20

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