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ELCDismissedBungoma ELC Appeal (Case No. 81 of 2019 - appeal from CM's Court)· [2024] KEELC 3439 (KLR)

Kilasi v Opiyo (Environment and Land Appeal 31 of 2022) [2024] KEELC 3439 (KLR)

Environment and Land Court
24 April 2024
3,062 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that blocking a public access road with structures is actionable, and landowners must first get a surveyor's determination before suing over boundary-related disputes.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Bungoma against the judgment of the Senior Principal Magistrate (Hon. CAS Mutai) delivered on 18th November 2022 in Bungoma CM ELC Case No. 81 of 2019. The respondent, registered owner of LR No. E. Bukusu/W.Sangalo/3074, had sued for an injunction and an order that the defendants vacate an access road to her land which they had allegedly encroached upon and blocked with structures. The trial court entered judgment in her favour, granting the injunction and an order to vacate, with costs. On appeal, the appellant argued that the trial court lacked jurisdiction as the dispute was a boundary dispute reserved for the Land Registrar under Section 18 of the Land Registration Act, that she was improperly sued as she was neither the registered owner nor legal representative of the adjoining parcel owned by her deceased husband, and that she was denied a fair hearing before the surveyor. The court, per E.C Cherono, ELC Judge, held that the respondent had followed the correct statutory channel - the area chief referred the matter to the Land Registrar, whose surveyor pegged the access road in the presence of all parties, including the appellant, and advised court action - so the trial court was clothed with jurisdiction. Since the dispute concerned a public access road owned by no one, the identity of the adjoining landowner was irrelevant, and the appellant, in use of structures on the road, was properly sued. The respondent, having proved a prima facie case on the surveyor's report, was entitled to the injunction. The appeal was dismissed with costs of both courts borne by the appellant.

Key legal issues

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01

Jurisdiction of the court over the suit vis-à-vis boundary disputes under Sections 18 and 19 of the Land Registration Act

Holding

The trial court had jurisdiction because the dispute was about encroachment on a public access road, and the respondent had first followed the statutory channel by involving the Land Registrar and Surveyor

Reasoning

Section 18(2) bars courts from entertaining boundary disputes unless determined under the Act. Here the area chief wrote to the Land Registrar, who sent a county surveyor who pegged the access road in the presence of all parties including the appellant, producing a report and map. The surveyor, lacking power to order demolition, advised the respondent to seek court orders. The statutory process having been undertaken, the court was clothed with jurisdiction.

p. 5
02

Whether the appellant was properly sued despite not being the registered owner or legal representative of the owner of the adjoining parcel

Holding

Yes - the claim concerned a public access road not owned by either party, and the appellant was in use of structures blocking it

Reasoning

The crux of the matter was encroachment on a public road, not a claim over the deceased's parcel LR No. E. Bukusu/W.Sangalo/2328. Since neither the appellant nor the respondent owns the road, ownership of the adjoining parcel is irrelevant; what matters is who is obstructing the access road, which was established against the appellant.

p. 5
03

Whether the respondent proved entitlement to the injunction granted by the trial court

Holding

Yes - a prima facie case was proved; the respondent was denied access by the appellant's continued use of the access road

Reasoning

Applying the Giella v Cassman Brown principles as restated in Nguruman, the respondent produced the county surveyor's report and map highlighting the access road, and the appellant admitted the existence of a structure on it. The respondent was thereby denied access to her property, entitling her to an injunction restraining the appellant from utilizing the public access road.

p. 6

Legal principles established

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  • Courts are precluded from entertaining boundary disputes over registered land unless the boundaries have been determined under the Land Registration Act
  • A party who follows the statutory boundary-determination channel before the Land Registrar and Surveyor may then approach the court for consequential relief such as removal of structures
  • Where the dispute concerns use of a public access road not registered in anyone's name, the identity of the owner of the adjoining land is irrelevant; the user of structures on the road is properly sued
  • A first appellate court must re-evaluate the evidence and arrive at its own independent decision

Court orders

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  1. 1.The appeal is hereby dismissed
  2. 2.The appellant shall meet the costs both of this court and the trial court

Authorities

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Legislation

  • Land Registration ActSection 18(1), 18(2), 18(3), 19(1), 19(2), 19(3)
  • Survey ActCap. 299
  • Civil Procedure ActSection 78

Cases cited (11)

  • The Owners of Motor Vessel 'Lillian S' vs. Caltex Oil Kenya Ltd
    (1989) eKLR
  • George Kamau Macharia vs. Dexka Limited
    (2019) eKLR
  • Leonard Otwori Juna vs. Francis Ongati Mamboleo
    (2022) eKLR
  • Patrick Kiseki Mutisya (Suing as the personal representative of the estate of Nzomo Mutisya -Dcd) vs. K.B. Shsngani & Sons Limited & Another
    (2012) eKLR
  • Silipet Proparties Ltd & Another vs. Chege Mwaura & Another
    (2017) eKLR
  • Abdalla Ali Nasoro vs. Wycliff Lukio & Another
    (2021) eKLR
  • Selle & another v Associated Motor Boat Co. Ltd & others
  • Peters v Sunday Post Limited
    (1958) EA page 424
  • East African Industries vs. Trufoods
    [1972] EA 420
  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
On appeal from
Bungoma Chief Magistrate's Court (ELC Case No. 81 of 2019)
ELC Case No. 81 of 2019
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act

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, "Kilasi v Opiyo (Environment and Land Appeal 31 of 2022) [2024] KEELC 3439 (KLR)", Case Analysis (2024). Bungoma ELC Appeal (Case No. 81 of 2019 - appeal from CM's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3439/eng@2024-04-24

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