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Court of AppealDismissedCivil Appeal No. 113 of 2018

Menkar Limited v Ratilal Ghela Samat Shah & 2 others [2019] KECA 657 (KLR)

Court of Appeal of Kenya
28 May 2019
3,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondents, joint registered owners of Mombasa/Block I/408, sued the appellant, owner of the adjoining plot Mombasa/Block I/409, alleging that a wall on the appellant's plot encroached on theirs, and sought injunction, eviction, demolition, mesne profits and damages. The appellant applied to strike out the plaint under Section 18(2) of the Land Registration Act, contending that boundary disputes of registered land belong to the Land Registrar, not the court. Komingoi, J. of the Environment and Land Court declined to strike out the suit but, appearing to accept that Section 18(2) is mandatory, directed the Land Registrar, Mombasa to determine the boundaries of the two parcels and file a report within sixty days. The appellant appealed, contending the Judge had found no jurisdiction yet went on to make substantive orders and confer jurisdiction where none existed. The Court of Appeal, in a single judgment delivered at Mombasa, dismissed the appeal. It held that the plaint did not raise a pure boundary dispute: the parcels were titled with fixed and demarcated boundaries, and the pleaded claims of encroachment, trespass and damages fell squarely within the ELC's jurisdiction under Section 13(2)(a) of the Environment and Land Court Act. Section 18(2) and Section 13 must be read together objectively to promote the rule of law, and the ELC's jurisdiction is not divested where boundary questions are intertwined with other claims. The order directing the Land Registrar to avail a report caused no prejudice. Costs were awarded to the respondents.

Questions the Court framed

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

  1. 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. 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

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01

Whether Section 18(2) of the Land Registration Act ousts the ELC's jurisdiction over a suit involving encroachment where boundaries are already fixed

Holding

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

Reasoning

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.

p. 4
02

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

Holding

Yes; the order was a proper case-management direction within the court's jurisdiction and caused no prejudice to the appellant

Reasoning

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.

p. 4
03

The applicable approach on a first appeal

Holding

The Court of Appeal on a first appeal must re-analyse and re-assess the evidence and reach its own conclusions

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

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

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
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

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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

p. 4

Costs

The appeal is dismissed with costs to the respondents.

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.

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.
p. 4Jurisdiction of the ELC where boundary issues are intertwined with other claims
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
p. 4Fixed boundaries and ELC jurisdiction over encroachment claims
Striking the entire suit would not serve the ends of justice.
p. 4Article 159(2)(d) and refusal to strike out
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.
p. 4Final orders and disposition

Issues in the judgment

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minor

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

minor

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

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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, "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.