Omwony v Omollo & 2 others (Environment and Land Appeal E02 of 2024) [2025] KEELC 4127 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear land ownership and boundary disputes directly, even when parties have already consulted the Land Registrar.
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 rightly found that the trial Magistrate's court had jurisdiction to determine the plaintiff's claim in view of the provisions of section 18(2) of the Land Registration Act
- 2.Whether the 1st respondent ought to have appealed the Land Registrar's findings rather than file a fresh suit
Key legal issues
#Whether the ELC/magistrate's court had jurisdiction over a dispute where boundaries were not fixed under sections 18 and 19 of the Land Registration Act
The suit was properly before the court; the boundary was not fixed but the registrar's process showed the dispute was not purely a boundary dispute, and Article 162(2)(b) vests the ELC with expansive original jurisdiction over boundary and ownership disputes
The Land Registrar visited the site with a surveyor, heard the parties, and found encroachment but recommended court redress because the dispute transcended the boundary framework. The court held boundaries were not fixed, agreeing with the appellant, but held that where the dispute has mutated into one of boundaries and ownership, the ELC's original jurisdiction under Article 162(2)(b) and section 13(2) of the ELC Act is engaged, and a plaint is a proper mode of approach.
Whether the respondent should have appealed the Land Registrar's determination instead of filing a fresh suit
The proposition is misplaced; the dispute was not a pure boundary issue, so an appeal would not suffice, and section 86 of the Act does not oust a plaint
The court found that the registrar's report was merely a recommendation, not a determination fixing boundaries. Because the dispute encompasses ownership as well as boundaries, the appellate route suggested by the appellant was inapt. The court also noted no rules exist under section 86(2), and the Land Registration (General) Regulations 2017 provide appeal only to the Chief Land Registrar.
Whether the exhaustion doctrine under section 9(2) of the Fair Administrative Action Act barred the suit
The statutory mechanism was substantially undergone, and in any event courts retain residual jurisdiction to intervene in exceptional circumstances
Parties appeared before the Land Registrar and a site visit was conducted, satisfying the alternative dispute mechanism. Relying on Chief Justice & President of the Supreme Court v Bryan Mandila Khaemba, the court held the circumstances justified intervention, noting section 9(2) of the FAA Act itself provides exceptions. Striking out the suit would defeat substantive justice and natural justice.
Legal principles established
#- Jurisdiction is conferred by the constitution or statute; a Land Registrar cannot confer jurisdiction on the court
- Not every boundary dispute must result in fixing of boundaries under section 19; where the registrar finds the dispute is not purely a boundary one, the court may properly entertain the suit
- Section 18(2) of the Land Registration Act does not oust a plaint as a means of approaching the court
- Courts retain residual jurisdiction to intervene notwithstanding the exhaustion doctrine in exceptional circumstances
Court orders
#- 1.The appeal is dismissed
- 2.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Bondo
- Bondo CMC ELC No. E041 of 2023
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act; appellate jurisdiction over the trial magistrate's ruling
Relief refused
#Allowance of the appeal and upholding of the preliminary objection dated 1/12/2023 with dismissal of the 1st respondent's suit
The dispute had mutated into a dual one encompassing boundaries and ownership; the land registrar's process was undergone and the ELC has original jurisdiction; striking out would not achieve substantive justice
Costs
Each party shall bear its own 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.
For the foregoing reasons I find no reason to disturb the finding of the trial court. This appeal is dismissed and each party shall bear its own costs.
I agree with Mr. Ondabu that the Land Registrar cannot confer jurisdiction. Indeed it is trite that jurisdiction is conferred by the constitution or statute.
However it cannot be expected that every boundary dispute would result into the fixing of the boundaries under the entire process laid out in section 19.
the doctrine of exhaustion notwithstanding, courts still retain residual jurisdiction to intervene in exceptional circumstances
Clearly therefore Article 162 (2)(b) vests the ELC with original jurisdiction and under Section 13(2) of Environment and Land Court Act as seen the scope is expansive.
Issues in the judgment
#The pleading roles appear inverted: the plaintiff in the lower court (Joyce Adhiambo Omollo) is described as the 1st respondent, while Caroline Achieng Omwony, named as 1st defendant's counterpart, appears as appellant, yet counsel for the appellant is referred to as both Mr. Awuonda and Mr. Ondabu; the judgment also alternates between 'plaintiff' and 'defendant' when describing who bought from Stevin Milla Okwaro
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omwony v Omollo & 2 others (Environment and Land Appeal E02 of 2024) [2025] KEELC 4127 (KLR)", Case Analysis (2025). Bondo CMC ELC No. E041 of 2023 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4127/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.