Magak & 2 others v Achieng & 3 others
The bottom line
#Kenya's Environment and Land Court struck out a land suit because boundary disputes must first go to the Land Registrar, not the court.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection constituted a proper preliminary objection
The objection was a pure point of law based on pleadings and jurisdiction, properly before the court
Applying Mukisa Biscuits, the court found the objection was premised on Sections 18 and 19 of the Land Registration Act, raised the issue of jurisdiction, was based on the plaint's pleadings and prayers, and if successful would dispose of the suit without ascertaining facts or exercising discretion.
Whether the dispute is a boundary dispute ousting the court's jurisdiction
Yes; the dispute concerns the position of boundaries and falls within the Land Registrar's mandate under Sections 18 and 19 of the Land Registration Act
The Surveyor's report showed uncertainty of boundaries and recommended re-survey and Land Registrar sanction for any boundary change. No evidence showed the boundaries were fixed, that the owner of parcel 55 was involved, or that the Land Registrar was engaged as the law requires. The court would still need the Registrar's expertise even if it entertained the matter.
Costs
Each party to bear own costs despite Section 27 of the Civil Procedure Act
Although costs follow the event under Section 27 of the Civil Procedure Act, the court considered that a genuine dispute exists between the parties which has not been conclusively resolved, and therefore departed from the general rule.
Legal principles established
#- Unless a boundary has been fixed in accordance with Sections 18 and 19 of the Land Registration Act, no court has jurisdiction to entertain a boundary dispute over registered land
- Section 18 and 19 of the Land Registration Act require boundary disputes to be handled by the Land Registrar, the expert, in the first instance
Court orders
#- 1.Preliminary Objection by the 1st and 2nd Defendants upheld
- 2.The entire suit struck out for want of jurisdiction
- 3.Each party to bear own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya 2010; Section 18(2) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muguli v Onchweri & 3 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 3859 (KLR)[2026] KEELC 3859 (KLR)18 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Magak & 2 others v Achieng & 3 others", Case Analysis (2023). Environment & Land Case E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19847/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.