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ELCPartially AllowedELC Appeal (Wang'uru CMCC Case No. E048 of 2021)· [2024] KEELC 6956 (KLR)

Ngungu v Kisilu & another (Appeal E009 of 2023) [2024] KEELC 6956 (KLR)

Environment and Land Court
24 October 2024
JMJ. M. Mutungi
3,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a boundary dispute because it must first go to the Land Registrar, and annulled a default judgment entered despite a filed defence.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kerugoya against the judgment of Hon. Mugure (PM) in Wang'uru CMCC Case No. E048 of 2021, delivered on 30th January 2023, in which the trial court allowed the Respondents' claim for re-survey and correction of boundaries between their parcels (Mwea/Tebere/B/1130, 1128, 1129) and the Appellant's parcel (Mwea/Tebere/B/3054) and for a permanent injunction. The Appellant raised six grounds, principally that the trial court lacked jurisdiction over a boundary dispute under Sections 18 and 19 of the Land Registration Act, 2012, and that an interlocutory judgment was irregularly entered against her notwithstanding that she had filed appearance and a defence. The court framed two issues: jurisdiction and the right to be heard. Applying Selle v Associated Motor Boat Co, it re-evaluated the evidence and found no boundaries had been fixed under Section 19, so Section 18(2) ousted the trial court's jurisdiction and the proceedings were a nullity. The court further held the interlocutory judgment was irregular: the claim was unliquidated, and the Appellant's appearance and defence had been filed before the judgment was entered, denying her a hearing. The appeal was allowed, the lower court judgment set aside, the Respondents' suit dismissed, with costs of the appeal and below awarded to the Appellant.

Key legal issues

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01

Jurisdiction over boundary disputes of registered land

Holding

The trial court acted without jurisdiction because the suit parcels' boundaries had not been fixed under Section 19 of the Land Registration Act, and its decision and proceedings were a nullity

Reasoning

Section 18(2) of the Land Registration Act, 2012 ousts the court's jurisdiction to entertain boundary disputes unless boundaries have been determined under Section 19. The evidence showed no boundaries had been fixed. The plaint itself, through prayer (a) seeking re-survey and correction of boundaries, showed the dispute was a boundary dispute. The magistrate should have referred the matter to the Land Registrar and County Surveyor; having failed to do so, she acted without jurisdiction and the proceedings were a nullity.

p. 6
02

Whether the Appellant was accorded an opportunity to be heard

Holding

The entry of interlocutory judgment against the Appellant was irregular because she had filed appearance and defence before it was entered, and the claim was unliquidated

Reasoning

The respondents' claim was neither liquidated nor for damages, so under Order 10 Rule 9 interlocutory judgment could not be entered. The Appellant's memorandum of appearance and statement of defence were filed on 14th June 2021, before the interlocutory judgment was minuted on 7th July 2021. The magistrate's refusal to consider the filed defence was a misdirection that denied the Appellant a hearing.

p. 7

Legal principles established

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  • Under Section 18(2) of the Land Registration Act, courts lack jurisdiction over boundary disputes of registered land unless the boundaries have been fixed in accordance with Section 19
  • Interlocutory judgment may only be entered where the claim is liquidated or for damages; otherwise the plaintiff must set the suit down for hearing
  • A defendant is entitled to file appearance and defence at any time before the suit is heard
  • A suit filed in a court without jurisdiction is invalid and cannot be sustained

Court orders

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  1. 1.The Judgment of the Lower Court is set aside
  2. 2.The Respondents' suit before the Lower Court is dismissed
  3. 3.The Respondents shall bear the Appellant's costs of the Appeal and the costs of the Court below

Authorities

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Legislation

  • Land Registration ActSection 18(1) and (2)
  • Land Registration ActSection 19(1), (2) and (3)
  • Civil Procedure Rules 2010Order 10 Rules 4 to 9

Cases cited (8)

  • Owners of Motor Vessel "Lillian S" –vs- Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • George Mike Wanjohi v Stephen Kariuki & 2 Others
    SC (2014) eKLR
  • Dennis Mogambi Mongare v Attorney General & 3 Others
    (2014) eKLR
  • Mwangi v Nyali Golf & Country Club
    (Civil Application E080 of 2021)(2022) KECA 455 (KLR)
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Paul Muraya Kaguri vs Simon Mbaria Muchuna
    (2015) eKLR
  • Samson Chembe Vuko vs Nelson Kilumo & 2 Others
    (2016) eKLR
  • Willis Ocholla vs Mary Ndege
    (2016) eKLR
On appeal from
Chief Magistrate's Court, Wang'uru
CMCC Case No. E048 of 2021
Jurisdiction invoked
First appeal to the Environment and Land Court from the magistrates' court

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, "Ngungu v Kisilu & another (Appeal E009 of 2023) [2024] KEELC 6956 (KLR)", Case Analysis (2024). ELC Appeal (Wang'uru CMCC Case No. E048 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6956/eng@2024-10-24

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