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ELCStruck OutNot stated in judgment· [2021] KEELC 3268 (KLR)

Reuben Kioko Mutyaene v Hellen Kiunga Miriti & 4 others; Ntalala Eric Mutura & another (Interested Parties) [2021] KEELC 3268 (KLR)

Environment and Land Court
19 May 2021
LMLucy N. Mbugua
3,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ELC Meru ruling by Lucy N. Mbugua, ELC Judge, decided together a Notice of Motion dated 8 October 2020 by the plaintiff and a preliminary objection dated 11 November 2020 by the 3rd to 5th defendants. The plaintiff, registered owner of LR. NO. NTIMA/NTAKIRA/3121 since 1998, alleged that the 1st and 2nd defendants re-surveyed adjacent parcel 3294, hived off part of his land and part of a 6.5-metre public access road, and erected a barbed wire fence. He sought an injunction maintaining the status quo, mandatory orders to uproot the fence and restore the road, and an order compelling the Land Surveyor, Meru to prepare an independent status survey report. The 1st defendant denied trespass, stating she fenced her own parcel 3293. The 3rd to 5th defendants objected that the court lacked jurisdiction under Sections 18 and 19 of the Land Registration Act, the dispute being a boundary one reserved to the Land Registrar in the first instance. The court framed two issues: the merits of the preliminary objection and the merits of the application. Applying Mukisa Biscuit, the Lillian S jurisdiction doctrine, and Section 18(2) of the Land Registration Act, the court held the dispute was a boundary dispute which should first have been presented to the Land Registrar, who alone has the statutory mandate and expertise to fix boundaries. The preliminary objection was upheld, the application and the entire suit were struck out as premature, and costs were awarded to the defendants.

Key legal issues

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01

Whether the court has jurisdiction over a boundary dispute where the parties have not first gone to the Land Registrar

Holding

The court lacks jurisdiction; Section 18(2) of the Land Registration Act prohibits the court from entertaining boundary disputes unless boundaries have first been determined by the Land Registrar. The preliminary objection was upheld and the suit struck out.

Reasoning

The court traced its jurisdiction to Article 162(2)(b) and Section 13(2) of the ELC Act, but noted Section 18(2) of the Land Registration Act prohibits entertaining boundary disputes of registered land before determination by the Land Registrar. Section 19 vests the duty to fix boundaries in the Land Registrar, who has the requisite expertise. The dispute here was a boundary one and the alleged adjustments were not ratified by the Registrar, so the plaintiff should first have taken the steps under Section 18(2).

p. 4
02

What constitutes a valid preliminary objection

Holding

Relying on Mukisa Biscuit, a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct.

Reasoning

The court adopted the classic definition from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, holding that a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The jurisdictional point raised here qualified as a pure question of law since the facts were deemed agreed as presented in the pleadings.

p. 3

Legal principles established

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  • Where a statute prescribes a procedure for redress, that procedure must be strictly followed before resorting to court
  • Boundary disputes over registered land with general boundaries must first be referred to the Land Registrar under Section 18(2) of the Land Registration Act before approaching the ELC

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The application together with the suit are struck out for being filed prematurely before the Court
  3. 3.Costs awarded to the defendants
Jurisdiction invoked
Article 162(2)(b) of the Constitution read together with Section 13(2) of the ELC Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Reuben Kioko Mutyaene v Hellen Kiunga Miriti & 4 others; Ntalala Eric Mutura & another (Interested Parties) [2021] KEELC 3268 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3268/eng@2021-05-19

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