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ELCAllowedKisumu ELC Appeal No. E013 of 2022· [2024] KEELC 610 (KLR)

Owiti v Aridi & another (Environment and Land Appeal E48 of 2022) [2024] KEELC 610 (KLR)

Environment and Land Court
8 February 2024
SOS. Okong'o
4,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that courts—not land registrars—resolve encroachment disputes between surveyed plots with fixed boundaries in Kenya.

What this practically means

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Executive summary

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The appellant, registered proprietor of Plot No. 262 in Kisumu Municipality, sued the respondents, proprietors of adjacent Plot No. 263, in the Chief Magistrate's Court alleging that their construction encroached on his plot. He sought a declaration of encroachment, demolition of the encroaching structure, a permanent injunction and general damages for trespass, and attached a surveyor's report showing encroachment of up to 1.6 metres. The respondents raised a preliminary objection contending that the dispute was a boundary dispute which, under Sections 18(2) and 19 of the Land Registration Act, 2012, had to be referred to the Land Registrar in the first instance. On 16th November 2022, Hon. W.K. Onkunya SRM upheld the objection, holding that the court lacked jurisdiction and that there was no note in the register evidencing fixed boundaries. The appellant appealed, arguing that the parcels had fixed boundaries marked by beacons and coordinates, that the dispute concerned encroachment and trespass rather than boundary determination, and that the preliminary objection improperly resolved factual questions. The Environment and Land Court allowed the appeal. It held that the parcels had been surveyed under an authenticated survey plan and their boundaries fixed with beacons, and that the registrar's failure to note the fixing did not invalidate it, since fixing of boundaries is a process rather than an event. The claim was therefore within the court's jurisdiction, and the boundary-character issue required evidence, disqualifying its determination by way of preliminary objection. The ruling of 16th November 2022 was set aside and the suit remitted for hearing before a different magistrate, with costs of the appeal to the appellant.

Key legal issues

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01

Whether the suit properties had fixed or general boundaries

Holding

The parcels were surveyed under Survey Plan Reference F/R No. 221/39 authenticated by the Director of Surveys and their boundaries marked with beacons; they had fixed boundaries under Section 19(3) of the Land Registration Act.

Reasoning

The parcels were surveyed before titles issued, and the boundaries derived from an authenticated survey plan. The court held that where the fixing process is proved complete, the land registrar's failure to make a note in the register does not render the fixing inoperative. The boundaries were therefore fixed, and any dispute could be resolved by the court with surveyors' assistance under the proviso to Section 18(3).

p. 6
02

Whether the lower court had jurisdiction over the appellant's claim

Holding

The claim was one of encroachment and trespass between titled plots with fixed boundaries, not a pure boundary dispute for the Land Registrar; the lower court erred in declining jurisdiction.

Reasoning

Following Menkar Limited, titled plots with defined boundaries raise encroachment questions for the Environment and Land Court. Sections 18 and 19 of the Land Registration Act apply to general boundaries arising from adjudication, not surveyed parcels with beacons. The claim also mixed other reliefs requiring proof.

p. 7
03

Whether the preliminary objection was properly sustained

Holding

The objection was improperly upheld because determining fixed versus general boundaries required evidence, and the appellant had other claims he should have been allowed to prove.

Reasoning

Applying Mukisa Biscuit and Oraro v. Mbaja, a preliminary objection must be a pure point of law not requiring ascertainment of facts. The boundary-character question required evidence, and the pleadings raised mixed issues including encroachment, demolition, injunction and damages for trespass, which the lower court should have heard.

p. 7

Legal principles established

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  • Where boundaries of a parcel are defined by reference to a survey plan verified by the authority responsible for survey, the boundaries are fixed under Section 19(3) of the Land Registration Act even absent a note in the register; the fixing of a boundary is a process, not an event.
  • Disputes over encroachment and trespass between parcels with fixed boundaries fall within the jurisdiction of the Environment and Land Court, not the Land Registrar under Sections 18 and 19 of the Land Registration Act.
  • An issue requiring evidence, such as whether boundaries are fixed or general, cannot be determined through a preliminary objection.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling and order made by Hon. W.K. Onkunya SRM on 16th November 2022 are set aside
  3. 3.The lower court suit shall proceed to hearing before any other magistrate apart from Hon. W.K. Onkunya SRM
  4. 4.The appellant shall have the costs of the appeal

Authorities

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Legislation

  • Land Registration Act, 2012Sections 18(2), 18(3), 19(2), 19(3)
  • Environment and Land Court Act, 2011Section 13(2)(a)
  • Survey ActCap. 299

Cases cited (5)

  • Menkar Limited v. Ratilal Ghela Samat Shah & 2 Others
    [2019] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd.
    [1969] E.A 696
  • Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others
    [2014] eKLR
  • Oraro v. Mbaja
    [2005] 1 KLR 141
  • Willis Ocholla v. Mary Ndege
    [2016] eKLR
On appeal from
Chief Magistrate's Court at Kisumu
Kisumu CMC ELC No. E097 of 2022
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court Act), appeal against a ruling on a preliminary objection under Sections 18 and 19 of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Owiti v Aridi & another (Environment and Land Appeal E48 of 2022) [2024] KEELC 610 (KLR)", Case Analysis (2024). Kisumu ELC Appeal No. E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/610/eng@2024-02-08

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