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ELCOtherNot stated in the judgment as provided· [2024] KEELC 4525 (KLR)

Muiruri (Suing as administrator of the Estate of the Late Patrix Paul Muiruri) v Khamis & 2 others (Land Case E002 of 2024) [2024] KEELC 4525 (KLR)

Environment and Land Court
30 May 2024
2,309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court sent a Kwale boundary dispute back to the Land Registrar, freezing all construction while statutory processes are exhausted first.

What this practically means

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Executive summary

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This ELC Kwale ruling by A.E Dena J dated 30 May 2024 disposed of the Applicant's Notice of Motion dated 29 December 2023 seeking temporary injunctions restraining the 1st Defendant from interfering with or constructing on the disputed boundary between Galu/Kinondo/568 and Galu/Kinondo/1855, together with the 1st Defendant's preliminary objection. The Applicant, owner of plot 568, alleged encroachment by the 1st Defendant, owner of plots 1854 and 1855. A District Surveyor's report dated 27 January 2023 found encroachment and recommended referral to the Land Registrar, who heard the parties on 20 April 2023 but never issued a report despite reminders. The 1st Defendant objected that the suit offended section 18(2) of the Land Registration Act and the exhaustion doctrine, as boundary disputes must first be resolved by the Land Registrar. The court agreed that the dispute should ordinarily go to the Land Registrar first, but held that the Applicant could not be faulted where the Registrar failed to discharge her statutory duty, invoking Article 48 on access to justice and the residual jurisdiction recognized in the Khaemba decision. Rather than granting the injunction, the court directed the District Land Registrar Kwale to proceed under sections 18 and 19 of the Land Registration Act and file a report within 45 days, maintained status quo on the disputed portion with all construction ceasing forthwith, and ordered costs in the cause.

Key legal issues

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01

Whether the suit violates section 18(2) of the Land Registration Act and the doctrine of exhaustion

Holding

The preliminary objection was not upheld; although the dispute should first go to the Land Registrar, the hearing before the Registrar produced no report, and the Applicant was entitled to approach the court in the circumstances

Reasoning

The court confirmed that a hearing before the Land Registrar took place but no evidence of the outcome was presented as required by section 19(2)(3). The Registrar failed to perform her statutory role despite reminders. The court invoked Article 48 on access to justice and residual jurisdiction in exceptional circumstances, holding the Applicant could not be faulted where the Registrar failed to act.

p. 4
02

What relief should preserve the disputed boundary pending resolution

Holding

Status quo orders rather than an injunction would suffice, with the Land Registrar directed to conclude the process and file a report within 45 days

Reasoning

Given the unresolved uncertainty whether there was encroachment, the court relied on the Mugah v Kunga practice direction and authorities on the purpose of status quo orders to preserve the subject matter, directing cessation of construction and completion of the statutory boundary determination process.

p. 4

Legal principles established

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  • Boundary disputes pertaining to lands falling within general boundary areas must first be referred to the Land Registrar for resolution before court action
  • A party cannot be faulted for not exhausting an alternative dispute resolution mechanism where the statutory body itself has failed to act
  • A status quo order is meant to preserve the subject matter as it existed on the day the order is made

Court orders

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  1. 1.The District Land Registrar Kwale to proceed as provided under section 18 and 19 of the Land Registration Act and file a report in court within the next 45 days of the ruling
  2. 2.Pending further orders of the court, the status quo on the portion of the suit properties subject of the dispute shall be maintained; there shall be no further constructions or development and any ongoing construction shall forthwith cease
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Land Registration Actsection 18(2)
  • Land Registration Actsections 18 and 19(1), 19(2), 19(3)
  • Constitution of Kenya 2010Article 162(2)(b)
  • Constitution of Kenya 2010Article 48
  • Environment and Land Court Actsection 13(2)
  • Gazette Notice No. 5178/2014Practice Direction No. 28(k)

Cases cited (6)

  • Azzuri Limited Versus Pink Properties Limited
    [2018] eKLR
  • Speaker of National Assembly -Versus- Karume
    (1992) KLR 21
  • Chief Justice and President of Supreme Court of Kenya & Another V. Bryan Mandila Khaemba
    (2021) eKLR
  • Mugah Vs Kunga
    [1988] KLR 748
  • Republic Vs National Environment Tribunal, Ex-parte Palm Homes Limited & Another
    [2013] eKLR
  • TSS Spinning & Weaving; Company Ltd Vs Nic Bank Limited & another
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read together with Section 13(2) of the Environment and Land Court Act

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 (Suing as administrator of the Estate of the Late Patrix Paul Muiruri) v Khamis & 2 others (Land Case E002 of 2024) [2024] KEELC 4525 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4525/eng@2024-05-30

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