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ELCStruck OutNot stated in judgment (Kajiado ELC suit, plaint dated 18/4/2022)· [2024] KEELC 7492 (KLR)

Real Options Investments Company Limited v Shichende (Environment & Land Case E030 of 2023) [2024] KEELC 7492 (KLR)

Environment and Land Court
13 November 2024
MGM.N. Gicheru
1,047 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 struck out a land boundary suit because the Land Registrar must decide boundary disputes first, not the courts.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (M.N. Gicheru, J) determines a preliminary objection dated 19/5/2023 raised by the defendant against a plaint dated 18/4/2022 in which the plaintiff sought a permanent injunction, a mandatory injunction for removal of beacons/structures, general damages for trespass, costs and interest over L.R. No. Kajiado/Olchoro-Onyore/11211. The defendant objected that the suit contravened Section 11 of the Civil Procedure Act, as the subject matter fell within the Ngong Magistrates Court's jurisdiction, and that the court lacked original jurisdiction under the ELC Act, the Magistrates' Court Act and precedent. The court framed two issues: whether it was divested of original jurisdiction, and whether the suit should be transferred or struck out. On the first, it held that suits must be filed in the court of lowest grade competent to try them, rejecting reliance on the High Court's unlimited original jurisdiction under Article 165. More significantly, it held that under Section 18(2) of the Registered Land Act the court cannot entertain boundary disputes over registered land unless the Land Registrar has first determined them, and Regulation 40(6) of the Land Registration (General) Regulations, 2017 renders the court's jurisdiction appellate only. On the second issue, the court declined to transfer the suit, finding the Magistrates Court also lacked jurisdiction since only the Land Registrar is competent, and no final Registrar's determination existed. The preliminary objection was upheld, the suit struck out with costs to the defendant.

Key legal issues

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01

Whether the ELC at Kajiado has original jurisdiction over the dispute

Holding

The court has no jurisdiction: the suit should have been filed in the Magistrates Court of lowest grade competent to try it, and boundary disputes of registered land must first go to the Land Registrar

Reasoning

Although the plaintiff invoked Article 165's unlimited jurisdiction, Section 11 of the Civil Procedure Act mandatorily requires suits to be filed in the court of lowest grade competent to try them. Further, under Section 18(2) of the Registered Land Act, a court cannot entertain a boundary dispute over registered land unless the Land Registrar has first determined it; Regulation 40(6) of the Land Registration (General) Regulations, 2017 confirms the court's role is appellate only, so a plaint is not a proper mode of commencement.

p. 2
02

Whether the suit should be transferred or struck out

Holding

The suit was struck out rather than transferred because the Magistrates Court equally lacks jurisdiction; the dispute must be exhausted before the Land Registrar first

Reasoning

Since only the Land Registrar has jurisdiction over the boundary dispute and no final determination by the Registrar existed (only a survey office report of a site visit), transferring the suit to the Magistrates Court would serve no purpose. The court held it unjust for the dispute to pend simultaneously before the ELC, the Ngong Magistrates Court and the Land Registrar, and directed that it be exhausted in one forum before moving to the next.

p. 3

Legal principles established

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  • Suits must be instituted in the court of lowest grade competent to try them
  • The ELC has no original jurisdiction over boundary disputes of registered land until determined by the Land Registrar; its jurisdiction in such matters is appellate only

Court orders

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  1. 1.The preliminary objection dated 19/5/2023 is upheld
  2. 2.The suit is struck out with costs to the defendant
Jurisdiction invoked
Article 165 of the Constitution (invoked by plaintiff); court's jurisdiction assessed under Section 11 of the Civil Procedure Act, Section 13(5) of the ELC Act, Sections 7 and 9 of the Magistrates' Court Act, and Section 18(2) of the Registered Land 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, "Real Options Investments Company Limited v Shichende (Environment & Land Case E030 of 2023) [2024] KEELC 7492 (KLR)", Case Analysis (2024). Not stated in judgment (Kajiado ELC suit, plaint dated 18/4/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7492/eng@2024-11-13

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