Olwah v Ondatta (Environment and Land Appeal 11 of 2021) [2022] KEELC 2952 (KLR)
The bottom line
#Kenyan courts cannot decide land boundary disputes until the Land Registrar first determines the boundary, so suing directly wastes everyone's time.
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 trial court had jurisdiction over the instant dispute.
- 2.Depending on the outcome on issue (a), whether the judgment of the trial court is erroneous and unlawful as discerned on the grounds of appeal.
- 3.What orders should be rendered in this appeal to meet the best ends of justice.
Key legal issues
#Whether the trial court had jurisdiction to entertain the dispute given the undetermined boundary
The trial magistrate correctly held that the court lacked jurisdiction because the boundary dispute had not been determined by the Land Registrar as required by sections 18(2) and 19 of the Land Registration Act.
Section 18(2) of the LRA bars the court from entertaining any action relating to a dispute as to boundaries of registered land unless the boundaries have been determined under that section. The expert reports, including the Land Registrar's report of 14th June 2017, recommended a resurvey and fixing of the boundary, confirming the boundary was undetermined. The appellate court held the magistrate's reliance on the LRA and related authorities was correct, though her analysis of encroachment was superfuous once jurisdiction failed.
Whether dismissing rather than striking out the suit was erroneous
Ground 5 of the appeal succeeded only to the extent that the suit should have been struck out rather than dismissed, and the final order was substituted accordingly.
The court accepted that where a court lacks jurisdiction it should down its tools and could not grant the orders prayed; the proper course is to strike out rather than dismiss the suit. The dismissal order was therefore varied to a striking-out with no orders as to costs, while the rest of the decision was substantially upheld.
Weight of expert evidence on the boundary and resurvey
Expert evidence is not binding on the court; the various surveyors' reports confirmed that a resurvey and fixing of the boundary was recommended and had not been done.
PW3's general survey report did not show encroachment; both DW1 and DW2 recommended a resurvey. The Land Registrar's report of 14th June 2017 advised the applicant to seek court orders to enable a resurvey, fixing of the boundary and opening of the access road. Under sections 48 to 54 of the Evidence Act the court may accept or reject expert evidence, but here the reports uniformly confirmed the boundary remained undetermined.
Legal principles established
#- Where a statute provides a clear procedure for redress of a grievance, that procedure must be adhered to
- The Land Registrar and Surveyor are mandated under sections 18, 19 and 20 of the Land Registration Act to deal with disputes concerning boundaries of registered land before the court may entertain such a dispute
- A court that lacks jurisdiction has no power to make one more step
Court orders
#- 1.The last paragraph of the trial court's judgment that 'the suit is dismissed with no orders as to costs' is substituted with the words 'the suit is struck out with no orders to costs'.
- 2.The trial court's decision rendered on 6th November 2019 is substantially upheld.
- 3.The appeal is dismissed with no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Oyugis PM's Court (Environment and Land Case No. 35 of 2018)
- Oyugis PM's Court ELC No. 35 of 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court; transfer effected under Articles 6(3) and 48 of the Constitution of Kenya, 2010
Relief refused
#Setting aside the trial court's finding of want of jurisdiction and substitution of a finding that the subordinate court was seized of jurisdiction
The court found the trial magistrate correctly applied sections 18(2) and 19 of the Land Registration Act; the Land Registrar must first determine the boundary dispute
Allowing the appellant's suit in terms of the plaint
The appeal was dismissed and the trial court's decision substantially upheld
Costs of the appeal and of the subordinate court borne by the Respondent
No orders as to costs were made
Costs
No orders as to costs - the appeal was dismissed with no orders as to costs, and the substituted order provides that the suit is struck out with no orders to costs.
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.
the last paragraph of the trial court's judgment that "the suit is dismissed with no orders as to costs." is hereby substituted with the words "the suit is struck out with no orders to costs".
Accordingly, the trial court's decision rendered on 6th November 2019 is hereby substantially upheld. I proceed to dismiss this appeal
The court shall not entertain any action or any other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.
……Lack of jurisdiction renders a court's decision void as opposed to it being merely voidable.
In Owners of Motor Vessel" Lillian S" case (supra), Nyarangi JA, was emphatic that jurisdiction is everything. That without it, a court has no power to make one more step.
Issues in the judgment
#Internal inconsistency in the dates of the memorandum of appeal - the body says it was dated 5th March 2020 and lodged 6th March 2020, but the disposition says it was dated 15th November 2019 and lodged 5th March 2020
Inconsistent case number cited in the appellant's proposed orders - the plaint is dated 29th September 2017 in Oyugis PM ELC No. 35 of 2018 but the prayer references Oyugis ELC Case No 852 of 2017 and a plaint dated 10th September 2017
The text contains several typographical/scanning errors, e.g. 'plaintifi', 'dificult', 'superfiuous', '[20150] eKLR' and 'LRA, 2016 (2012)'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olwah v Ondatta (Environment and Land Appeal 11 of 2021) [2022] KEELC 2952 (KLR)", Case Analysis (2022). Environment and Land Case (Appeal) at Homa Bay – memorandum of appeal dated 5th March 2020, lodged 6th March 2020 (from Oyugis PM's Court Environment and Land Case No. 35 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2952/eng@2022-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.