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ELCPartially AllowedMiscellaneous Application dated 9th January 2025

Indata v Makanga (Environment & Land Miscellaneous Case E015 of 2024) [2025] KEELC 3806 (KLR)

Environment and Land Court
15 May 2025
EAE. Asati
1,212 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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In Kenya, land boundary disputes must first go to the Land Registrar, not the court, which will only help with security for the survey.

What this practically means

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Executive summary

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The applicant, registered owner of parcel W/Bunyore/Ebusiekwe/2146, applied by notice of motion dated 9th January 2025 seeking an injunction against the Respondent (owner of adjoining parcel 2145), an order directing the OCS Luanda police station to provide security to the Land Registrar Vihiga County to survey and fix the common boundary, demolition of any structures found encroaching, and costs. The applicant deposed that the Respondent had encroached on his land and that a boundary-determination exercise by the Land Registrar on 25th November 2024 failed because of the Respondent's hostility, with the area administration advising that police security and a court order were needed. The Respondent opposed, alleging the applicant's title was fraudulently acquired, denying hostility, and submitting via counsel that a miscellaneous application could not institute a suit, that non-existent legal provisions were cited, and that no grounds for injunction were established, relying on Norah Ndunge Henry & another v Abednego Mutisya & Another (2022) eKLR. The court held that the dispute was a boundary dispute within the Land Registrar's mandate under section 18 of the Land Registration Act, so injunction and demolition prayers were premature and misconceived. However, the substantive prayer for police security to facilitate the Registrar's survey was granted, the Respondent showing no prejudice. The application was allowed in part: the OCS Luanda was directed to provide security for the survey, with each party bearing own costs. Judgment delivered by E. Asati, Judge, on 15th May 2025 at Vihiga.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court can order police security to enable the Land Registrar to survey and determine the boundary between parcels W/Bunyore/Ebusiekwe/2146 and 2145
  2. 2.Whether the court has jurisdiction to determine the boundary dispute and grant injunction and demolition orders
  3. 3.Whether the application, brought as a miscellaneous application, is competent

Key legal issues

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01

Jurisdiction over boundary disputes

Holding

The court cannot determine boundary disputes; the Land Registrar has that mandate. The court's role was limited to facilitating the survey by ordering security.

Reasoning

The court identified the subject matter as a boundary dispute. Section 18 of the Land Registration Act vests determination of such disputes in the Land Registrar, ousting court jurisdiction. However, the substantive prayer was not for determination of the boundary but for police security to enable the Registrar's exercise, which the court could grant.

p. 2
02

Injunction and demolition prayers

Holding

Refused as premature and misconceived since section 18(2) bars the court from such determinations pending boundary identification by the Registrar.

Reasoning

The court held these are substantive reliefs properly sought in an appropriate forum after the boundary has been established. Granting them before the Registrar determines the common boundary would contravene section 18(2) of the Land Registration Act.

p. 3
03

Respondent's fraud allegation against applicant's title

Holding

Rejected on the application since no suit challenging the title was before the court and the land stood registered in the applicant's name.

Reasoning

The Respondent alleged the applicant's title was procured by fraud, but produced no suit challenging that title. The court found the evidence showed the land was registered in the applicant's name up to filing, so the allegation did not defeat the application.

p. 3

Legal principles established

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  • Under section 18 of the Land Registration Act, the court has no jurisdiction to determine boundary disputes; that power lies with the Land Registrar.
  • A court may direct police security to facilitate the Land Registrar's boundary-determination exercise where hostility frustrates it.

Court orders

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  1. 1.The OCS Luanda police station to provide security to the Land Registrar Vihiga County to survey and determine the common boundary line between parcels of land Nos. W/Bunyore/Ebusiekwe/2146 and 2145
  2. 2.Each party to bear own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EA
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) Constitution / Environment and Land Court Act (first-instance application; court reasoned under section 18 Land Registration Act that it lacks jurisdiction over boundary disputes)

Relief refused

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Injunction restraining the Respondent from entering upon or interfering with parcel W/Bunyore/Ebusiekwe/2146

Substantive relief premature and misconceived given section 18(2) of the Land Registration Act; boundary determination is for the Land Registrar

p. 3

Demolition/vandalisation of structures constructed across the boundary

Substantive relief to be sought in an appropriate forum after boundary determination

p. 3

Costs

Each party to bear own costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court finds that the application is partly merited and hereby allows it in the following terms: i. The OCS Luanda police station to provide security to the Land Registrar Vihiga County to survey and determine the common boundary line between parcels of land No.s W/Bunyore/ Ebusiekwe/2146 and 2145. ii. Each party to bear own costs of the application.
p. 3Final orders
Under the provisions of section 18 of the Land Registration Act, the court has no jurisdiction to determine boundary disputes.
p. 2Jurisdiction
The prayer for injunction and for demolition of structures are substantive reliefs that ought to be sought for in an appropriate forum. Herein they are premature and misconceived in view of the provisions of section 18(2) of the Land Registration Act.
p. 3Premature substantive reliefs

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, "Indata v Makanga (Environment & Land Miscellaneous Case E015 of 2024) [2025] KEELC 3806 (KLR)", Case Analysis (2025). Miscellaneous Application dated 9th January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3806/eng@2025-05-15

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