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ELCDismissedNot stated in the judgment· [2024] KEELC 1218 (KLR)

Adina v Otiato & 2 others (Environment & Land Case 81 of 2018) [2024] KEELC 1218 (KLR)

Environment and Land Court
6 March 2024
4,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A landowner suing neighbours for encroachment lost because he never first had the boundaries officially determined by the Land Registrar.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of LR No Bunyala/Bulemia/3150 since 15th September 2000, sued three Defendants, proprietors of the neighbouring parcel Bunyala/Bulemia/3618, alleging they encroached about 10 metres onto his land and erected a permanent structure. He sought eviction, an order directing the County Surveyor to fix the boundaries, a permanent injunction, mesne profits, costs and interest. The Defendants denied encroachment, having purchased their parcel from the Plaintiff's deceased brother with the Plaintiff's assistance during survey and sub-division, and raised a jurisdictional objection that the suit was a boundary dispute premature for court determination. Hearing began before Omollo J in November 2021, with the Defendants' testimony taken by Olao J in October 2023. The court found the suit was in substance a boundary dispute over which it had no jurisdiction under Section 18(2) of the Land Registration Act, the Plaintiff having first to resort to the Land Registrar under the exhaustion doctrine. Notwithstanding, the court proceeded to consider the merits in case that finding was wrong. It held the Plaintiff failed to discharge the burden of proving encroachment: he could not identify the portion in issue, and his own surveyor's report was inconclusive. The joint witness statement of the three Defendants was held valid, by analogy to joint affidavits and applying Article 159(2)(d) on procedural technicalities. All remedies were declined and the suit was dismissed with costs to the Defendants. Judgment was delivered electronically on 6th March 2024, having been postponed from 6th February 2024 due to the Judge's absence from the station.

Key legal issues

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01

Jurisdiction over boundary disputes

Holding

The Court is barred by Section 18(2) of the Land Registration Act (and formerly Section 21(4) of the repealed Registered Land Act) from entertaining the boundary dispute; the Plaintiff should have gone to the Land Registrar first

Reasoning

The Plaintiff himself sought an order that the County Surveyor fix the boundaries, demonstrating the suit is at its core a boundary dispute. The court reasoned that without known boundaries it could not determine trespass, craft an injunction or assess mesne profits. Following the exhaustion doctrine, the Land Registrar or Surveyor is the first point of call.

p. 4
02

Validity of a joint witness statement by multiple defendants

Holding

A joint witness statement signed by all three Defendants is valid; Order 7 Rule 5 does not prohibit it and no prejudice was shown

Reasoning

By analogy with Francis Kariu Gakumbi & Another v Piliska Njoki Maina, where an affidavit sworn by more than one person is not defective, a witness statement signed jointly is valid. Guided by Article 159(2)(d) of the Constitution and Section 1A of the ELC Act on procedural technicalities, and the majority in Salat v IEBC, the court declined to strike out the statement.

p. 9
03

Whether the Plaintiff proved encroachment

Holding

No. The Plaintiff bore the burden under Sections 107, 108 and 109 of the Evidence Act and failed to identify or prove the encroached portion; his own surveyor's report was inconclusive

Reasoning

The court held it was never the Defendants' duty to prove they occupied their own portion. The Plaintiff's pleadings referred vaguely to 'a portion' of about 10 metres, and the survey report itself concluded that further searches were needed to assess encroachment, so it did not aid the Plaintiff's case.

p. 6

Legal principles established

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  • Courts lack jurisdiction to entertain actions relating to disputes as to boundaries of registered land unless the boundaries have been determined in accordance with Section 18 of the Land Registration Act
  • Where a clear statutory procedure exists for redress of a grievance, it must be strictly followed before resort to the courts
  • A witness statement signed jointly by more than one person is not defective and should not be struck out for non-compliance with Order 7 Rule 5 of the Civil Procedure Rules
  • Mesne profits are special damages that must be specifically pleaded and proved

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Plaintiff shall meet the Defendants' costs
Jurisdiction invoked
Environment and Land Court Act; Court addressed its own jurisdiction 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, "Adina v Otiato & 2 others (Environment & Land Case 81 of 2018) [2024] KEELC 1218 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1218/eng@2024-03-06

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