Adina v Otiato & 2 others (Environment & Land Case 81 of 2018) [2024] KEELC 1218 (KLR)
The bottom line
#A landowner suing neighbours for encroachment lost because he never first had the boundaries officially determined by the Land Registrar.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over boundary disputes
The Court is barred by Section 18(2) of the Land Registration Act (and formerly Section 21(4) of the repealed Registered Land Act) from entertaining the boundary dispute; the Plaintiff should have gone to the Land Registrar first
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.
Validity of a joint witness statement by multiple defendants
A joint witness statement signed by all three Defendants is valid; Order 7 Rule 5 does not prohibit it and no prejudice was shown
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.
Whether the Plaintiff proved encroachment
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
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.
Legal principles established
#- 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
#- 1.The Plaintiff's suit is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.