Menkar Limited v Ratilal Ghela Samat Shah & 2 others [2019] KECA 657 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed land courts can hear encroachment cases with fixed boundaries, even when boundary questions arise alongside other claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge had jurisdiction to determine the dispute before the Environment and Land Court given Section 18(2) of the Land Registration Act
- 2.Whether the trial court erred in directing the Land Registrar, Mombasa to determine the boundaries and file a report instead of striking out the plaint
Key legal issues
#Whether Section 18(2) of the Land Registration Act ousts the ELC's jurisdiction over a suit involving encroachment where boundaries are already fixed
It does not; where the parcels are titled with fixed and demarcated boundaries, the Land Registrar's boundary-determination mandate under Section 18(2) is not engaged, and the ELC retains jurisdiction to determine encroachment, trespass and damages claims
The court noted the plaint sought injunction, eviction, demolition, mesne profits and damages, not a boundary determination. The parcels were titled with defined boundaries, and a surveyor's report confirmed beacons fixed on Folio R253/87 with only one beacon inaccessible due to the wall. Section 18(2) applies where boundaries have not been determined; that was not this case.
Whether the trial court, having observed that Section 18(2) is mandatory, could still decline to strike out the plaint and instead direct the Land Registrar to determine boundaries and file a report
Yes; the order was a proper case-management direction within the court's jurisdiction and caused no prejudice to the appellant
Reading Section 13 of the ELC Act with Section 18(2) of the Land Registration Act objectively to promote the rule of law, the court found the ELC's jurisdiction intact where issues are intertwined. Directing the Land Registrar, custodian of official land records, to avail records to establish whether the wall encroached, served the ends of justice under Article 159(2)(d) rather than defeat them.
The applicable approach on a first appeal
The Court of Appeal on a first appeal must re-analyse and re-assess the evidence and reach its own conclusions
Citing Selle v Associated Motor Boat Co., the court restated that a first appeal is by way of retrial: the appellate court must reconsider and evaluate the evidence itself, drawing its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses, and is not bound by the trial judge's findings of fact where they are clearly erroneous.
Legal principles established
#- The jurisdiction of the Environment and Land Court is not divested merely because a boundary question is intertwined with other claims; Section 18(2) of the Land Registration Act and Section 13 of the ELC Act must be read together, and where boundaries are already fixed the Registrar's mandate does not oust the court's jurisdiction
- Where an ELC suit is not a pure boundary dispute, the court may lawfully direct the Land Registrar to avail records or a report to assist in determining encroachment and trespass, rather than strike out the suit
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC No. 179 of 2017
- Jurisdiction invoked
- Appeal to the Court of Appeal against a ruling of the Environment and Land Court; jurisdiction engaged under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act as construed with Section 18(2) of the Land Registration Act
Relief refused
#Appellant's request that the respondents' plaint be struck out for want of jurisdiction under Section 18(2) of the Land Registration Act
The dispute was not a pure boundary dispute; the plots had fixed boundaries and the pleadings raised encroachment, trespass and damages claims within the ELC's jurisdiction under Section 13(2)(a) of the Environment and Land Court Act
Costs
The appeal is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having looked at the two enactments within the context of the case before us, we do not think that the jurisdiction of the ELC is divested especially where the issues in dispute are intertwined with others.
It is therefore not in contention that the Title Nos. Mombasa Block I/409 and Mombasa Block I/408 have a defined boundary, they have titles and the issues pleaded in the plaint are matters that fall within the jurisdiction of the Environment and Land Court
Striking the entire suit would not serve the ends of justice.
In the end we find this appeal lacks merit and we see no prejudice that may be suffered by the order made directing the Land Registrar to avail a report. Accordingly the appeal is hereby dismissed with costs to the respondents.
Issues in the judgment
#The appeal coram describes the impugned ruling as 'dated 22nd May, 2018 and delivered on 28th June, 2018 by (A. Omollo, J)' while the judgment body attributes the ruling to Komingoi, J. on 22nd May 2018; the reference to A. Omollo, J. is unexplained
The judgment at one point refers to '18 (2) of the Registered Land Act' although the statute under discussion throughout is the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Menkar Limited v Ratilal Ghela Samat Shah & 2 others [2019] KECA 657 (KLR)", Case Analysis (2019). Civil Appeal No. 113 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/657/eng@2019-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.