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ELCStruck OutNot stated in judgment

Mutuku v Kamutu & 2 others (Environment & Land Case E036 of 2023) [2024] KEELC 7181 (KLR)

Environment and Land Court
30 October 2024
ANA. Nyukuri
2,174 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land encroachment suit, ruling boundary disputes over registered land with unfixed boundaries belong to the Land Registrar, not the court.

What this practically means

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Executive summary

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The plaintiff, member number 1882 of Muka Mukuu Farmers Cooperative Society and alleged owner of Plot Number Block 7-257, sued his neighbours claiming they had encroached on his land. He sought general damages, a permanent injunction against trespass, eviction and costs. The defendants denied the claim and counterclaimed for a permanent injunction restraining the plaintiff from interfering with their parcels Donyo Sabuk/Donyo Sabuk West Block 1 (Muka Mukuu) 2169, 2119 and 2122, asserting over 50 years of occupation. At pretrial directions both counsel described the dispute as a boundary dispute, prompting the court to direct submissions on jurisdiction. The single issue was whether the court had jurisdiction. Applying Owners of Motor Vessel 'Lilian S' and Samuel Kamau Macharia, the court held jurisdiction flows only from the Constitution or statute. Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes over registered land unless boundaries have been determined under that section; that role falls to the Land Registrar. Land registered under the repealed Registered Land Act Cap 300 carries general, unfixed boundaries, and a surveyor has no jurisdiction over such boundaries unless they are fixed under section 19(3). The pleadings, multiple survey reports and Muka Mukuu correspondence established the dispute as one of boundary, not ownership. The court struck out the suit with costs to the defendants.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction to hear and determine the dispute herein

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a dispute framed as encroachment/trespass but in substance a boundary dispute of registered land with unfixed boundaries

Holding

The court lacks jurisdiction; such disputes must first be determined by the Land Registrar under section 18 of the Land Registration Act, and the suit was struck out.

Reasoning

Section 18(2) of the Land Registration Act bars the court from entertaining boundary disputes over registered land unless boundaries have been determined under that section. Land under the repealed Cap 300 has general boundaries; the parties' pleadings, survey reports and correspondence show the real dispute is a boundary dispute. Jurisdiction is conferred by law and a court must down its tools once it finds none; hence the suit was struck out with costs.

p. 4

Legal principles established

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  • Where a dispute concerns the boundary of registered land with general (unfixed) boundaries, jurisdiction lies with the Land Registrar, not the Environment and Land Court.
  • Land registered under the repealed Registered Land Act (Cap 300) has general boundaries unless fixed under section 19(3) of the Land Registration Act.
  • A surveyor can only determine a boundary dispute under the Survey Act where the boundary has been defined under section 19(3) of the Land Registration Act.

Court orders

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  1. 1.The suit is struck out with costs to the defendants

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Section 13 of the Environment and Land Court Act; Section 18 of the Land Registration Act, 2012

Relief refused

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General damages, permanent injunction against trespass and eviction order sought by the plaintiff

The court found the dispute to be a boundary dispute of registered land with unfixed general boundaries, over which the Land Registrar has exclusive jurisdiction and the court none.

p. 4

Defendants' counterclaim for permanent injunction

The entire suit, including the counterclaim, fell away as the court downed its tools for want of jurisdiction.

p. 3

Costs

Costs of the suit awarded to the defendants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the above reasons, I find and hold that this court lacks jurisdiction to hear and determine this dispute and the same is hereby struck out with costs to the defendants.
p. 4Final orders - striking out for want of jurisdiction
Jurisdiction is everything and the moment the court finds that it has no jurisdiction, it must down its tools.
p. 3Principle of jurisdiction
The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.
p. 3Section 18(2) Land Registration Act - exclusivity of Registrar's jurisdiction
A surveyor can only determine a dispute under the Survey Act Cap 299, where the boundary has been defined under Section 19 (3) of the Land Registration Act.
p. 4Limits of surveyor's jurisdiction over unfixed boundaries

Issues in the judgment

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minor

The judgment refers to "Section 16 of the Land Registration Act 2012 which relates to boundary disputes" in the plaintiff's submissions, whereas elsewhere the court discusses boundary determination under Section 18; the section numbering in the submissions passage appears inconsistent.

minor

Counsel for the plaintiff submitted that "Section 23 (1) of the Surveyors Act" provides that boundary disputes are resolved by surveyors, which the court did not adopt, and the court instead held a surveyor lacks jurisdiction over unfixed boundaries - an internal tension left unresolved.

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, "Mutuku v Kamutu & 2 others (Environment & Land Case E036 of 2023) [2024] KEELC 7181 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7181/eng@2024-10-30

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