Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment

Shaiyah v Kihonge & another (Environment & Land Case 112 of 2021) [2023] KEELC 14 (KLR)

Environment and Land Court
11 January 2023
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The 1st Defendant raised a preliminary objection contending that the Environment and Land Court lacked jurisdiction over the Plaintiff's suit because it centred on a boundary dispute reserved for the Land Registrar under Sections 18 and 19 of the Land Registration Act, and that the suit was otherwise an abuse of process. The Plaintiff opposed, arguing that a Thika Survey Office report and cadastral map had already determined the boundary under Sections 18(2) and 15(1) of the Act, so the suit was properly before the Court. Applying the Mukisa Biscuits tests, Justice J G Kemei held that the objection raised a pure point of law: the plaint's principal prayer - compelling removal of the 1st Defendant's boundary wall - could only be determined with evidence of the boundary, a function vested exclusively in the Land Registrar. A surveyor is not the Land Registrar, and under Section 19(2) a survey report can only follow the Registrar hearing the rival parties. Following the Speaker of the National Assembly v James Njenga Karume, the Court held that statutory dispute-resolution mechanisms must be exhausted before the Court's jurisdiction is invoked. However, the remaining prayers (damages, restraining orders, eviction, declaratory orders) fell within the Court's mandate. The preliminary objection partially succeeded: the boundary dispute was referred to the Land Registrar (Plaintiff to submit within 30 days; Registrar to file its decision within 60 days), the suit was stayed pending that report, the parties were thereafter at liberty to prosecute outstanding claims, and there were no orders as to costs.

Questions the Court framed

#

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

  1. 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. 2.Whether the suit is fatally defective, misconceived, frivolous or an abuse of the Court process warranting striking out

Key legal issues

#
01

Whether the Court has jurisdiction over a suit whose central prayer requires determination of a boundary dispute

Holding

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.

Reasoning

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.

p. 2
02

Whether the suit should be struck out as an abuse of process

Holding

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.

Reasoning

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.

p. 4

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. 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. 2.The Land Registrar ordered to file its decision before the Court within 60 days from the date of the Ruling
  3. 3.The suit stayed pending reception of the decision/report of the Land Registrar
  4. 4.Thereafter the Plaintiff (or such other party) at liberty to prosecute the other claims then outstanding
  5. 5.No orders as to costs

The bench

#

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

majority

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.

p. 4

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.
p. 4Referral of boundary dispute to 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
p. 4Final orders - referral within 30 days
The suit be and is hereby stayed pending the reception of the decision / report of the Land Registrar.
p. 4Final orders - stay of suit
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.
p. 3Exhaustion of statutory dispute-resolution mechanisms
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.
p. 2Definition of preliminary objection (Law JA)

Issues in the judgment

#
minor

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.

minor

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.