Ounga & another v Land Registrar Kisumu & another; Leo Investments Ltd (Interested Party) (Environment and Land Petition E005 of 2024) [2025] KEELC 5234 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a constitutional petition challenging boundary dispute procedure
The court has jurisdiction; the Petitioners were not asking the court to determine the boundary itself but seeking redress for threatened rights violations.
Section 13 of the ELC Act confers jurisdiction over disputes relating to boundaries, and Section 13(7) empowers the court to grant prerogative orders, declarations and injunctions. Following Mugendi, the ELC may determine land disputes with ancillary fundamental rights claims. However, determination of the boundary in the first instance remains for the Land Registrar under Sections 18 and 19 of the Land Registration Act.
Right of access to information (Article 35)
The 1st Respondent violated the Petitioners' right of access to information by failing to supply the boundary application and registers sought.
The information was in the 1st Respondent's possession by virtue of its office and was necessary for the Petitioners to respond to the application. Uncontroverted evidence showed letters of 29th April and 15th May 2024 were never answered nor the documents supplied, contrary to the Access to Information Act's duty to disclose.
Right to fair hearing and fair administrative action
Proceeding to hear and determine the boundary application without supplying the requested information would infringe the Petitioners' right to a fair hearing under Article 50(1).
Relying on Kidero v Waititu, fair hearing incorporates audi alteram partem. Without the application and registers, the Petitioners could not know the particulars of the claim or prepare a defence. Declarations of violation of fair administrative action and fair hearing were accordingly granted.
Entitlement to certiorari and permanent injunction
Certiorari was refused because the hearing never took place and no fault was found with the summons; the permanent injunction was refused as the court cannot permanently stop the Land Registrar.
The court stopped the hearing before the scheduled date, so there was nothing to quash. A permanent injunction would tie the Registrar's statutory hands; the appropriate remedy was a temporary stoppage pending supply of information, followed by fresh summons listing all adjacent owners.
Legal principles established
#- The ELC has jurisdiction to hear constitutional claims concerning threatened violations of rights in land boundary dispute processes, even though the boundary dispute itself is reserved for the Land Registrar.
- A Land Registrar conducting a boundary determination must supply an interested party, on request, with the underlying application and relevant registers, failing which the party's rights to access information, fair administrative action and fair hearing are violated.
Court orders
#- 1.Declaration that the refusal to furnish information relating to the boundary dispute, including the application for boundary determination and copies of the registers (green cards) for adjoining parcels, violated the Petitioners' right of access to information.
- 2.Declaration that the refusal to share the requested information and give the Petitioners sufficient time to study it violated the Petitioners' rights to fair administrative action and fair hearing.
- 3.The 1st Respondent to furnish the Petitioners with a copy of the Interested Party's boundary determination application and copies of the registers (green cards), subject to availability, within 30 days of payment if required.
- 4.Upon supplying the documents, the 1st Respondent to issue fresh summons for the boundary determination, serving also owners of Kisumu/Dago/4X7, 4X8, 2XX6, 2XX8, 3XX2, 3XX3 and any other interested adjacent plot owner.
- 5.Each party to bear its own costs of the petition.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ounga & another v Land Registrar Kisumu & another; Leo Investments Ltd (Interested Party) (Environment and Land Petition E005 of 2024) [2025] KEELC 5234 (KLR)", Case Analysis (2025). Petition dated 22nd May 2024 (Kisumu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5234/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.