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ELCOtherNot stated in judgment (Kisumu Environment and Land Court suit filed 6th March 2014)· [2021] KEELC 854 (KLR)

Janice Achieng Osawa (Suing as the administratix of the estate of Serfine Owiti Wandu) v Nura Ramadhan [2021] KEELC 854 (KLR)

Environment and Land Court
19 November 2021
AOANTONY OMBWAYO
2,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Kisumu confirmed it can hear trespass cases between neighbours whose boundaries are already officially determined.

What this practically means

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Executive summary

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The plaintiff sued the defendant on 6th March 2014 alleging trespass on LR NO. KISUMU/WATHOREGO/1212, seeking possession, a permanent injunction against trespass, an order compelling demolition and removal of structures, and costs. The defendant filed a notice of preliminary objection dated 11th March 2020 contending that the suit is a boundary dispute contrary to section 18(2) of the Land Registration Act, 2012, which ousts the Court's jurisdiction until the land registrar determines boundaries, relying on Willis Ocholla v Mary Ndege. The plaintiff countered that the dispute concerned ownership and trespass, not boundaries, and noted prior court orders directing the land registrar and surveyor to visit the parcels. Antony Ombwayo J framed the sole issue as whether the suit offends section 18(2) of the Land Registration Act. Examining the pleadings and a Survey of Kenya map, the Court found that the boundaries of LR NO. KISUMU/WATHOREGO/1212 and 1211 had already been identified and determined, and that the consent orders for the registrar and surveyor were meant to guide the Court on existing boundaries, not create or fix new ones. The suit was held to be one for trespass and encroachment, within the Court's jurisdiction under section 13(2) of the Environment and Land Court Act, guided by Kosgey, Omalla, Nganga v Njuho and Kulundu. The Court also observed that the objection, filed seven years after suit and after a report favourable to the defendant, was an afterthought. The preliminary objection was dismissed with costs. The substantive suit remains for full hearing.

Key legal issues

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Whether the suit violates section 18(2) of the Land Registration Act, 2012 for want of jurisdiction

Holding

The preliminary objection fails: the boundaries of the parties' parcels had already been determined, and the suit is one for trespass/encroachment which the Court has jurisdiction to hear under section 13(2) of the Environment and Land Court Act

Reasoning

The pleadings and the Survey of Kenya map showed that the boundaries of the two parcels had already been identified and determined. The registrar/surveyor court orders were meant to guide the Court on existing boundaries, not create or fix new ones. The cause of action is trespass, with prayers for permanent injunction and removal of structures, matters within section 13(2) of the Environment and Land Court Act. The objection, filed seven years after suit and after a consent order for the registrar and surveyor to visit the land, was an afterthought.

p. 3

Legal principles established

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  • Under section 18(2) of the Land Registration Act, the court shall not entertain a dispute as to the boundaries of registered land unless the boundaries have been determined under that section; but where boundaries have already been identified and determined, a suit claiming trespass/encroachment is properly before the Environment and Land Court under section 13(2) of the Environment and Land Court Act

Court orders

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  1. 1.The preliminary objection raised by the defendant is dismissed
  2. 2.The defendant to pay the costs of the preliminary objection
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court 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, "Janice Achieng Osawa (Suing as the administratix of the estate of Serfine Owiti Wandu) v Nura Ramadhan [2021] KEELC 854 (KLR)", Case Analysis (2021). Not stated in judgment (Kisumu Environment and Land Court suit filed 6th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/854/eng@2021-11-19

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