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ELCOtherNotice of Motion dated 6th December 2023 (suit number not stated in judgment)· [2025] KEELC 526 (KLR)

Nzau v Kemei & 2 others (Environment & Land Case 70 of 2023) [2025] KEELC 526 (KLR)

Environment and Land Court
12 February 2025
ANA. Nyukuri
2,271 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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Kenyan courts cannot decide boundary disputes over land with general boundaries — you must first take your complaint to the Land Registrar.

What this practically means

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Executive summary

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The plaintiff, Teresia Wayua Nzau, registered proprietor of Donyo Sabuk/Komarock Block 1/26456, filed a notice of motion dated 6th December 2023 seeking an interim injunction restraining the 1st defendant, Loice Jepchumba Kemei, from interfering with the suit property, and mandatory orders compelling the 2nd and 3rd defendants (the Land Registrar and Land Surveyor) to file a final ground-visit report and to place beacons on the disputed boundary. The plaintiff claimed to have occupied the land since 1969, obtaining a title in 2015, and alleged the 1st defendant encroached during a fencing exercise, prompting County Surveyor visits on 29th September and 14th November whose report was never released. The 1st defendant opposed, characterising the dispute as purely a boundary dispute, asserting the parcels are separated by Kwa Nduku River and that the plaintiff had trespassed onto riparian land. The court, on its own motion, addressed jurisdiction first. It found both parcels are registered under the Land Registration Act with general, not fixed, boundaries. Section 18 of that Act bars the court from entertaining boundary disputes over registered land unless the boundaries have been determined under the Act; Regulation 40 of the Land Registration (General) Regulations vests that determination in the Land Registrar, with a 30-day appeal to the court. Since the plaintiff had never filed her boundary complaint before the Land Registrar, and a surveyor could not determine general boundaries, the court held it lacked original jurisdiction. The application was struck out with costs to the respondents.

Key legal issues

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01

Whether the Environment and Land Court has original jurisdiction over a boundary dispute concerning general boundaries

Holding

The court has no jurisdiction; section 18 of the Land Registration Act vests determination of such disputes in the Land Registrar, and the court can only hear appeals from the Registrar's decision within 30 days.

Reasoning

Both parcels are registered land under the Land Registration Act (formerly the repealed Registered Land Act Cap 300) with general, not fixed, boundaries. Section 18(2) bars the court from entertaining boundary disputes unless boundaries have been determined under the Act. Regulation 40 of the Land Registration (General) Regulations sets out the Registrar's procedure for ascertaining disputed boundaries, with appeal to the court under Regulation 40(6). The applicant had not filed her complaint before the Registrar, so the application was incompetent before this court and was struck out.

p. 5
02

Whether the injunction threshold was met

Holding

Not determined; the jurisdictional defect preceded consideration of the merits.

Reasoning

The court held that jurisdiction must be resolved before the merits of any application. Having found it lacked jurisdiction over the boundary dispute, the court did not reach the injunction threshold analysis and instead struck out the application with costs.

p. 3

Legal principles established

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  • Under section 18 of the Land Registration Act, the court cannot entertain boundary disputes over registered land with general (unfixed) boundaries in the first instance; such disputes fall to the Land Registrar, whose decision is appealable within 30 days under Regulation 40(6) of the Land Registration (General) Regulations.
  • Jurisdiction is everything and a court must satisfy itself of jurisdiction before considering the merits.

Court orders

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  1. 1.The application dated 6th December 2023 struck out with costs to the respondents
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); jurisdiction ousted by section 18 of the Land Registration Act for boundary disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Nzau v Kemei & 2 others (Environment & Land Case 70 of 2023) [2025] KEELC 526 (KLR)", Case Analysis (2025). Notice of Motion dated 6th December 2023 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/526/eng@2025-02-12

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