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ELCDismissedNot stated in excerpt (Plaint dated 22nd March 2023)· [2024] KEELC 3468 (KLR)

Lemayan (Suing on Their Own Behalf and on Behalf of 13 other Owners of Various Parcels of Land Surrounding Kajiado/Elangata Wuas/ 4) v District Surveyor, Kajiado & 4 others; Commission on Admistrative Justice (Interested Party) (Environment & Land Case E022 of 2023) [2024] KEELC 3468 (KLR)

Environment and Land Court
29 April 2024
789 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a technical objection, ruling the Kajiado boundary dispute must proceed to full hearing.

What this practically means

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Executive summary

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The 5th Defendant raised a Preliminary Objection dated 18th May 2023 in a boundary dispute concerning parcel Kajiado/Elangata/Wuas/4, arguing that the Environment and Land Court lacked jurisdiction under Article 162(2)(b) of the Constitution and Sections 18 and 19 of the Land Registration Act, and that the Plaintiffs had not exhausted statutory dispute resolution mechanisms. The objection was canvassed by written submissions by consent. The 5th Defendant relied on authorities including Azuri Limited v PMK Properties and Speaker of the National Assembly v Karume, urging that Section 18(2) of the Land Registration Act ousts the court's jurisdiction over boundary disputes and that litigants must follow statutory mechanisms or seek exemption. The Plaintiffs submitted that the court had jurisdiction and that they had exhausted available mechanisms. The court, citing the Supreme Court's decision in Kenya National Commission on Human Rights v Attorney General, reiterated that a preliminary objection must be a pure point of law with no contest as to facts. Noting that the District Surveyor Kajiado had visited the site, the Land Registrar had issued a ruling dated 15th September 2022 giving dissatisfied parties thirty days to appeal to the court, and that a joint survey had been proposed by the 5th Defendant's own counsel, the court found the objection devoid of merit. It dismissed the Preliminary Objection and directed that costs abide the outcome of the main suit.

Key legal issues

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01

Whether the Preliminary Objection on jurisdiction and exhaustion of statutory dispute resolution was merited

Holding

The Preliminary Objection was dismissed as it was not merited

Reasoning

The court observed that the objection could not be resolved as a pure point of law because boundary determination on the ground remains available to the parties; the Land Registrar had already given a ruling with a right of appeal to this court, and a joint survey was proposed. The court therefore found no merit in the objection and dismissed it, with costs to await the main suit.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law determinable without contest as to facts

Court orders

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  1. 1.The Preliminary Objection dated 18th May 2023 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Land Registration Act No. 3 of 2012Section 18(2)
  • Land Registration Act No. 3 of 2012Sections 18 and 19

Cases cited (6)

  • Reuben Kioko Mutyaene Vs. Hellen Kiunga Miriti and 4 Others & 2 Interested Parties
    ELC E002 of 2020
  • Azuri Limited Vs. PMK Properties
    (2018) eKLR
  • George Kamau Macharia Vs. Dexka Limited
    (2019) eKLR
  • Speaker of the National Assembly Vs. Karume
    (1992) eKLR
  • Geofirey Muthinja Kabiru & 2 Others Vs Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • Kenya National Commission on Human Rights Vs. Attorney General; IEBC and 16 Others (Interested Parties)
    (2020) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (jurisdiction of the Environment and Land Court); Section 18 and 19 of the Land Registration Act No. 3 of 2012 raised in objection

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, "Lemayan (Suing on Their Own Behalf and on Behalf of 13 other Owners of Various Parcels of Land Surrounding Kajiado/Elangata Wuas/ 4) v District Surveyor, Kajiado & 4 others; Commission on Admistrative Justice (Interested Party) (Environment & Land Case E022 of 2023) [2024] KEELC 3468 (KLR)", Case Analysis (2024). Not stated in excerpt (Plaint dated 22nd March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3468/eng@2024-04-29

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