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ELCOtherNot stated in judgment· [2024] KEELC 3814 (KLR)

Rinda v China Civil Engineering Construction Cooperation Limited (Land Case E031 of 2022) [2024] KEELC 3814 (KLR)

Environment and Land Court
30 April 2024
ADA.E Dena
1,790 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Land boundary disputes in Kenya must first go to the Land Registrar, not the court, which steps in only afterwards to award compensation.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated 8/11/2023 seeking to strike out or dismiss the Plaintiff's suit for want of jurisdiction, arguing under Section 18(2) of the Land Registration Act that the dispute over alleged encroachment on parcel Kwale/Ng'ombeni/757 was a boundary dispute concerning parcels under the general boundaries system, which must first be determined by the Land Registrar. The Plaintiff opposed, contending that the pleadings raised trespass, not a boundary dispute, and that beacon identification and court-ordered surveys had already established encroachment, with the property valued at Kshs. 46,650,000/-. The court, applying Owners of the Motor Vessel 'Lillian S' and Henry Kosgey, noted that survey reports (including that of 30/5/2023) showed partial encroachment of 0.27Ha and that the parcels fall under the general boundaries system. It held that the nature and extent of the encroachment should first be determined by the Land Registrar under Sections 18 and 19 of the Land Registration Act, since no evidence showed the issue had been lodged with the Registrar. However, the court declined to strike out the suit because if the Registrar finds encroachment, the court will still determine compensation. The court directed the parties to submit to the Land Registrar's jurisdiction on boundary issues, with liberty to apply for appropriate orders thereafter, and ordered costs in the cause. Ruling delivered on 30 April 2024 by A.E Dena, Judge.

Key legal issues

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01

Whether the encroachment claim is a boundary dispute reserved for the Land Registrar under Sections 18 and 19 of the Land Registration Act

Holding

Yes; the issue of the nature and extent of the encroachment should first be determined by the Land Registrar, and the parties were directed to submit to that jurisdiction

Reasoning

The survey reports showed the parcels fall within the general boundary system and that only part of the suit property (0.27Ha) was encroached. Section 18(2) bars the court from entertaining boundary disputes not first determined under the Act. The parties never lodged the encroachment issue with the Land Registrar, so the court directed them to do so, with liberty to return for consequential orders such as compensation.

p. 3
02

Whether the suit should be struck out for want of jurisdiction

Holding

No; striking out was refused because the court retains jurisdiction to determine compensation once the Registrar determines the boundary issue

Reasoning

Although the boundary question must go to the Land Registrar first, the wider suit includes claims for trespass, compensation and restoration. If the Registrar finds encroachment, the court will proceed to determine compensation. Striking out would therefore be premature; a referral order achieves the statutory scheme while preserving the suit.

p. 4

Legal principles established

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  • The court shall not entertain actions relating to boundary disputes of registered land under the general boundaries system unless the boundaries have first been determined under Section 18 of the Land Registration Act
  • Jurisdiction is fundamental; without it a court must down its tools

Court orders

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  1. 1.The Parties shall submit themselves to the jurisdiction of the Land Registrar for the determination on boundary issues
  2. 2.Depending with the outcome of (1) above, parties shall apply for appropriate orders/directions
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 2 Rule 15(1)(a) and (d)
  • Land Registration (General) Regulations 2017Rule 40(1)(2)(3)(4)(5)(6)
  • Land Registration Act No. 3 of 2012Sections 18(1),(2),(3), 19(1),(2),(3), 20
  • Constitution of Kenya 2010Article 40
  • Survey ActSection 19(3) reference (determination of uncertain boundaries)

Cases cited (2)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Hon. Henry Kosgey v Brian Cuthbert & Another
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction; Section 18(2) of the Land Registration Act No. 3 of 2012 invoked on the jurisdiction question

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, "Rinda v China Civil Engineering Construction Cooperation Limited (Land Case E031 of 2022) [2024] KEELC 3814 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3814/eng@2024-04-30

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