TWONG KENYA LIMITED v DONALD ANDOLO
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection is a proper one
It meets the Mukisa Biscuit threshold as a pure point of law based on Section 18(2) of the Land Registration Act
The court adopted the classic definition from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd as restated by the Supreme Court in Hassan Ali Joho. The objection rests solely on Section 18(2) of the Land Registration Act, a point of law capable of disposing of the suit without resort to facts.
Whether the court has jurisdiction over the suit given Section 18(2)
The objection succeeds only in part: the parties must first submit to the Land Registrar for boundary determination, but the court's jurisdiction is engaged because the alleged encroachment, once established, would infringe the Plaintiff's right to use and ownership of property
The court read the pleadings and found the dispute involves both a boundary question and an alleged encroachment on the Plaintiff's parcel and the public road. Since the extent of the parcels relative to the road can only be established by survey, the parties ought first to have gone to the Land Registrar under Sections 18 and 19, yet the encroachment alleged touches proprietary rights, keeping the court's jurisdiction alive.
Whether the interim injunction orders of 7/8/2023 should stand
Yes; they remain in place until a boundary determination is made, the Plaintiff having established a prima facie case, potential substantial loss and the balance of convenience
The court found the Plaintiff proved ownership of his parcel and that the 1st Respondent had put up a perimeter wall allegedly encroaching on public land. If the activities continued, the Plaintiff's acreage might be reduced to accommodate the road reserve, satisfying substantial loss; the balance of convenience tilts in the Plaintiff's favour.
Legal principles established
#- Jurisdiction is everything; without it a court must down its tools (as stated in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd)
- Under Section 18(2) of the Land Registration Act, the court shall not entertain actions relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with the section
- A proper preliminary objection consists of a point of law which may dispose of the suit
Court orders
#- 1.The preliminary objection is upheld only to the extent that the parties shall submit themselves to the jurisdiction of the Land Registrar for determination of the boundaries to their respective properties and that of the public road
- 2.The interim orders issued on 7/8/2023 remain in place until a determination on the boundary is made and further directions of the court
- Jurisdiction invoked
- Section 18(2) of the Land Registration Act No. 3 of 2012 raised as a bar to jurisdiction; court's jurisdiction considered in light of that provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TWONG KENYA LIMITED v DONALD ANDOLO", Case Analysis (2024). Not stated in the excerpt of the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5025/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.