Osodo & another v Lenacture & Sons Building Company & another (Environment and Land Appeal E003 of 2023) [2024] KEELC 1454 (KLR)
The bottom line
#Kenyan courts cannot hear land boundary disputes until the Land Registrar has first fixed the boundary, so plaintiffs must complete that statutory process before filing suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute was a boundary dispute ousting the court's jurisdiction
The dispute was a boundary dispute between the suit land Kisumu/Seme Kaila/1919 and the Gulkabege – Ombo Lung'a access road; section 18(2) of the Land Registration Act barred the trial court from entertaining it
The County Land Surveyor (PW3) ultimately testified that technically the matter was a boundary dispute between the road and the lands, that the area was a general boundary (not a fixed survey area), and that he could not tell the extent of encroachment. No Land Registrar's report was produced and no evidence showed the boundary had been fixed or noted in the register. The dispute therefore fell within sections 18, 19 and 20 of the Land Registration Act.
Whether the trial court was justified in striking out the suit rather than referring it to the Land Registrar
The trial court was justified; having no jurisdiction, it could not refer the matter to the Land Registrar
The appellants argued the court should have referred the boundary question to the Land Registrar. The court held that once jurisdiction was ousted under section 18(2), the trial court had no power to make such a reference; striking out with costs was the only lawful course.
Burden of proving compliance with the boundary-fixing procedure
The appellants bore the burden of proving, on a balance of probabilities, compliance with sections 18, 19 and 20 of the Land Registration Act, which they did not discharge
No report of the Land Registrar was produced and no note on the register showed the boundary had been fixed. The Surveyor himself could not quantify the encroachment. Without proof of a fixed boundary, the court could not assume jurisdiction.
Legal principles established
#- Under section 18(2) of the Land Registration Act, a court has no jurisdiction to entertain proceedings relating to a boundary dispute over registered land unless the boundary has been fixed by the Land Registrar as provided for in the Act, and the burden lies on the party asserting jurisdiction to prove such compliance.
- Where a court lacks jurisdiction over a boundary dispute, it equally has no jurisdiction to refer the matter to the Land Registrar; it may only strike out the suit.
- A party who suffers damage may be entitled to redress, but must first follow the dispute-resolution mechanisms provided by statute before moving to court.
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the Senior Principal Magistrate's Court in Maseno SPMC ELC No. 19 of 2019 (striking out the suit with costs) is upheld
- On appeal from
- Senior Principal Magistrate's Court, Maseno
- Maseno SPMC ELC No. 19 of 2019
- Jurisdiction invoked
- Appeal from the subordinate court under the Environment and Land Court Act (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osodo & another v Lenacture & Sons Building Company & another (Environment and Land Appeal E003 of 2023) [2024] KEELC 1454 (KLR)", Case Analysis (2024). Environment and Land Appeal arising from Maseno SPMC ELC No. 19 of 2019 (number of the present appeal not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1454/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.