Shaiyah v Kihonge & another (Environment & Land Case 112 of 2021) [2023] KEELC 14 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that boundary disputes between registered landowners must first go to the Land Registrar before the court can decide them.
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 Preliminary Objection is merited, i.e. whether the Court lacks jurisdiction over the boundary dispute under Sections 18 and 19 of the Land Registration Act
- 2.Whether the suit is fatally defective, misconceived, frivolous or an abuse of the Court process warranting striking out
Key legal issues
#Whether the Court has jurisdiction over a suit whose central prayer requires determination of a boundary dispute
The Court lacks jurisdiction to determine the boundary question until the Land Registrar determines it; that part of the suit is referred out and stayed.
Section 18(2) of the Land Registration Act bars the Court from entertaining boundary disputes unless the boundaries have been determined under the Act. The prayer compelling removal of the 1st Defendant's boundary wall requires evidential determination of the boundary, a function statutorily vested in the Land Registrar. A surveyor's report from the Thika Survey Office does not suffice, as a surveyor is not the Land Registrar, and a survey report under Section 19(2) can only follow the Registrar hearing the rival parties.
Whether the suit should be struck out as an abuse of process
The objection partially succeeds only; other remedies sought (damages, restraining orders, eviction, declaratory orders) fall within the Court's mandate and are deferred pending the Registrar's report.
While the boundary question must go to the Land Registrar, the remaining prayers in the plaint - general and punitive damages, restraining orders, eviction and declaratory orders on violation of land rights - are within the Court's mandate under Sections 18 and 19 LRA. Striking out the entire suit would therefore be disproportionate; instead the suit is stayed and the other claims deferred.
Legal principles established
#- A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
- Where a statute prescribes a dispute-resolution mechanism, that mechanism must be exhausted before the Court's jurisdiction is invoked.
- The Court cannot usurp the Land Registrar's statutory power to determine boundary disputes over registered land under Sections 18 and 19 of the Land Registration Act.
Court orders
#- 1.The Plaintiff to submit the boundary dispute for determination by the Land Registrar pursuant to Sections 18 and 19 of the Land Registration Act within 30 days
- 2.The Land Registrar ordered to file its decision before the Court within 60 days from the date of the Ruling
- 3.The suit stayed pending reception of the decision/report of the Land Registrar
- 4.Thereafter the Plaintiff (or such other party) at liberty to prosecute the other claims then outstanding
- 5.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 18 and 19 of the Land Registration Act No. 3 of 2012 (jurisdictional bar pending boundary determination by the Land Registrar)
Relief refused
#Striking out of the Plaintiff's suit as sought in the Preliminary Objection
The objection only partially succeeded; the boundary aspect was referred to the Land Registrar while the remaining prayers were deferred, not struck out.
Costs
No orders as to costs - 'I make no orders as 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.
To serve the interest of justice, I order that the suit is referred to the Land Registrar for the determination of the boundary dispute and the rest of the prayers are deferred awaiting the report of the Land Registrar.
The Plaintifi to submit the boundary dispute for determination by the Land Registrar pursuant to Sections 18 and 19 of the Land Registration Act within the next 30 days from the date hereof
The suit be and is hereby stayed pending the reception of the decision / report of the Land Registrar.
It is trite that where there exists a legal mechanism of dispute resolution, that mechanism must be allowed to be deployed and the jurisdiction of the Court invoked after exhausting the said mechanism.
A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
Issues in the judgment
#The judgment refers to the 1st Defendant's counsel's submissions as dated April 21, 2022 but the Plaintiff's opposing submissions as dated 30/6/2021, earlier than the Preliminary Objection itself dated December 10, 2021 - the date is likely miswritten.
Paragraph 15 refers to 'para 13 of the Ruling' although the judgment is a first-instance ruling on a preliminary objection and the referenced paragraph is 13 of this judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shaiyah v Kihonge & another (Environment & Land Case 112 of 2021) [2023] KEELC 14 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/14/eng@2023-01-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.