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ELCDismissedMurang'a ELC Case No. 19 of 2022· [2024] KEELC 1590 (KLR)

Muiruri v Ndewa & 3 others (Environment and Land Case 19 of 2022) [2024] KEELC 1590 (KLR)

Environment and Land Court
14 March 2024
LGL. Gacheru
5,461 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed an encroachment suit because the landowner should have first taken the boundary dispute to the Land Registrar.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Kakuzi/Ithanga/Gituamba/Block 1/787, sued the Defendants, who occupy the adjoining parcel Block 1/558, claiming encroachment, trespass, erection of permanent structures and seeking eviction, demolition, vacant possession, mesne profits, costs and interest. Two court-ordered surveys were conducted: the first (April 2021) found no physical boundary on the ground and relied on the Registry Index Map; the second (April 2023, filed 8th May 2023) found an encroachment area of 0.05ha. At trial, the Defendants denied encroachment and argued the suit was premature for failure to pursue the boundary dispute resolution mechanism under Sections 18 and 19 of the Land Registration Act. The Defendants' surveyor (DW3) testified that the RIM indicates only general boundaries, that the disputed area measured about 0.37 acres, and that allocating the disputed V-shaped area to the Plaintiff would create an anomalous acreage inconsistent with her title. The court framed two issues: whether the Plaintiff's case was merited, and who should pay costs. Holding that the dispute was fundamentally a boundary dispute over registered land with unfixed boundaries, the court found no note in the register that the boundaries had been fixed as required by Section 19, and therefore, under Section 18(2), it lacked jurisdiction. Relying on precedent requiring exhaustion of statutory dispute resolution mechanisms, the court held the parties must first go to the Land Registrar, and only an aggrieved party may thereafter come to court. The suit was dismissed with an order that each party bear their own costs, given that the boundary issue remains unresolved.

Key legal issues

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01

Whether the court has jurisdiction over a boundary dispute between registered parcels where the boundaries have not been fixed

Holding

The court has no jurisdiction; the dispute must first be resolved by the Land Registrar under Sections 18 and 19 of the Land Registration Act, and the suit was premature

Reasoning

Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes over registered land unless the boundaries have been determined in accordance with Section 19. The court examined the registers of both parcels and found no note that the boundaries had been fixed. Boundaries on the Registry Index Map are general/approximate only. The proper procedure was for the parties to present the dispute to the Land Registrar, whose determination could thereafter be escalated to court by an aggrieved party.

p. 9
02

Who should pay costs of the suit

Holding

Although the Defendants were successful, each party was ordered to bear their own costs because the underlying boundary dispute remains unresolved

Reasoning

Costs follow the event under Section 27 of the Civil Procedure Act, and the Defendants, being successful, would ordinarily get costs. However, since the boundary dispute remains live and unresolved, the court in its discretion directed that each party bear their own costs.

p. 11

Legal principles established

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  • Courts lack jurisdiction under Section 18(2) of the Land Registration Act to entertain boundary disputes over registered land whose boundaries have not been fixed by the Land Registrar
  • Where a statute establishes a dispute resolution mechanism, that mechanism must be exhausted before resort to court

Court orders

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  1. 1.The suit was dismissed for want of jurisdiction
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 18
  • Land Registration ActSection 19
  • Land Registration ActSection 26
  • Land Registration Act, 2012Sections 16 to 19
  • Survey ActCap. 299
  • Civil Procedure ActSection 27

Cases cited (11)

  • Ali Mohamed Salim Vs Faisal Hassan Ali
    (2014) eKLR
  • Adetoun Oladeji Vs Nigeria Breweries PLC
    SC 91/2002
  • Raila Amolo Odinga & Another Vs IEBC & 2 Others
    (2017) eKLR
  • Paul Muraya Kaguri vs Simon Mbaria Muchuna
    (2015)
  • George Kamau Macharia Vs Dexka Limited
    (2019) eKLR
  • Azzuri Limited v Pink Properties Limited
    [2018] eKLR
  • Willis Ocholla vs Mary Ndege
    (2016) eKLR
  • Estate Sonrisa Ltd & Another v Samuel Kamau Macharia & 2 others
    [2020] eKLR
  • Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others
    [2017] eKLR
  • Sasomuna Holdings Company Limited v Kenya National Highways Authority
    (2022) eKLR
  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 18 and 19 of the Land Registration Act, 2012; Article 162(2) of the Constitution (Environment and Land Court)

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, "Muiruri v Ndewa & 3 others (Environment and Land Case 19 of 2022) [2024] KEELC 1590 (KLR)", Case Analysis (2024). Murang'a ELC Case No. 19 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1590/eng@2024-03-14

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