Kitulu & another v Njuguna

the Land Registrar that they can approach this Court. It stresses that there ought to be exhaustion of the dispute resolution mechanism under the Land Registration Act rst, before coming to this Court. 5. To buttress its averments, the Defendant relied on the following decisions: George Kamau Macharia v Dexka Limited [2019] eKLR; Azzuri Limited v Pink Properties Limited [2018] eKLR; Willis Ocholla v Mary Ndege (2016) eKLR; State Sonrisa Ltd & Another v Samuel Kamau Macharia & 2 others [2020] eKLR; and Allan Omondi Okal v Telkom (K) Ltd (founder) & 9 others [2017] eKLR. 6. On their part, the Plaintis submit that the Defendant’s submissions should be expunged from the record, having been led outside the fourteen (14) days as directed by the Court on 20th May 2026. They also submit that the Defendant’s Preliminary Objection does not amount to a pure point of law as espoused in Mukisa Biscuit Manufacturing co ltd v West End Distributors Ltd [1969] EA 696 and in Oraro v Mbaja [2005] 1 KLR 141, because the Court is called upon to evaluate evidence. Further, that res judicata is improperly raised in the said Preliminary Objection because the Court will have to ascertain whether Section 7 of the Civil Procedure Act has been met. They insist that the dispute is not a boundary dispute as it arises from the Defendant’s alleged unlawful entry upon sub plot A, the demolition of their perimeter fence and other improvements erected thereon. Further, that even assuming that there existed a boundary dispute, Section 21(1) of the Land Registration Act grants the proprietor of any parcel of land the right to keep and maintain in good order fences, hedges, stones, pillars, beacons, walls and other features that demarcate a boundary and makes it a criminal oence to impair a boundary. 7. The Plaintis also submit that the boundary has never been surveyed, thus the Land Registrar lacks jurisdiction to impose any boundary until the sub-division is registered. On the allegation that they lack locus standi to institute the suit, they submit that it is an inquiry that requires the examination of evidence and contested facts, it is not founded upon a pure point of law. 8. To buttress their averments, the Plaintis relied on the following decisions: George Kamau Kimani & 0thers v County Government of Trans Nzoia & another [2014] KEELC 104 (KLR) and Philes Nyokabi Kamau v Industrial & Commercial Development Corporation [2017] eKLR. Analysis and Determination 9. I have considered the Notice of Preliminary Objection including the rivalling submissions and the only issue for determination is whether the said Notice of Preliminary Objection is merited. 10. The Defendant’s Notice of Preliminary Objection is premised on grounds that the Plaintis lack locus standi to institute this suit, that the suit is incurably defective as it is res judicata and violates the provisions of Sections 18 and 19 of the Land Registration Act. On their part, the Plaintis contend that the Preliminary Objection does not raise a pure point of law. 11. A Preliminary Objection ought to raise a pure point of law. In Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] 1 EA it was stated: “ …..a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit…..” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6157/eng@2026-10-05 2

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12. Further, in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, the Supreme Court observed as follows: “ … The true preliminary objection serves two purposes of merit: rstly, it serves as a shield for the originator of the objection— against proigate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…..” 13. The Plaintis insist that this suit is not a boundary dispute as they seek other reliefs arising from the Defendant’s alleged unlawful entry onto sub plot A, demolition of their perimeter fence and hedge, and the Defendant’s alleged interference with their quiet possession and enjoyment of the suit property, which issues they contend can only be resolved upon the valuation of evidence. They also contend that the suit land’s boundary has never been surveyed, thus the Land Registrar lacks jurisdiction to impose any boundary until the sub-division is registered. 14. On perusal of the Plaint, I note the Plaintis have sought for an injunction to restrain the Defendant by himself, his agents or servants from trespassing into or in any manner whatsoever from cutting or interfering with the Plainti’s boundary hedge and fence; a mandatory injunction to compel the Defendant to replace and build back the boundary hedge, replace iron sheet fence on poles, replace damaged electric and data cables and any other appliances damaged during the illegal destruction of their boundary fence, among others. 15. On the Defendant’s allegation that the fulcrum of the dispute herein revolves around a boundary dispute hence this Court is devoid of jurisdiction to handle it, I wish to make reference to section 18 and 19 of the Land Registration Act. 16. Section 18 of the Land Registration Act stipulates that: “ 18(1) Except where in accordance with Section 20, it is noted in the register that the boundaries of a parcel have been xed, the cadastral map and any led plan shall be deemed to indicate the approximate situation only of the parcel. (2) The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this Section. (3) Except where it is noted in the register that the boundaries of a parcel have been xed, the Registrar may, in any proceedings concerning the parcel receive such evidence as to its boundaries and situations as may be necessary. Provided that where all the boundaries are dened under Section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act Cap 299." 17. While, Section 19(2) of the same Act provides as follows: “ 2. The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be dened by the survey, the precise position of the boundaries in question, le a plan containing the necessary particulars and make a note in the register that the boundaries have been xed, and the plan shall be deemed to accurately dene the boundaries of the parcel.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6157/eng@2026-10-05 3

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18. From a reading of the aforementioned legal provisions, it envisages where the land has been registered in the names of any disputing parties. However, from the proceedings herein, it emerges that the Plaintis and Defendant share one title and occupy sub plots ‘A’ and ‘B’, which subdivisions are yet to be registered. 19. The Defendant further claimed this suit is res judicata and that the Plaintis did not have locus standi to institute it. However, he has failed to provide the details of the previous suit where the dispute herein had been determined to prove his claim of res judicata as envisaged under Section 7 of the Civil Procedure Act. Further, the Defendant did not deny that suit land’s boundary has never been surveyed, thus the Land Registrar lacks jurisdiction to impose any boundary until the sub-division is registered. 20. Based on the facts as presented while relying on the legal provisions cited as well associating myself with the decisions quoted, I nd that the Defendant has failed to demonstrate how this suit is res judicata and a boundary dispute. Further, no arguments have been advanced to demonstrate how the Plaintis had no locus standi to institute this suit. 21. In the foregoing, I nd the Notice of Preliminary Objection dated 20th May 2026 unmerited and will dismiss it with costs to the Plainti. DATED SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Kangethe holding brief for Dr. Kinyanjui for Defendant Mwanthi for Mbindyo for Plaintis Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6157/eng@2026-10-05 4

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