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ELCStruck OutELCLC NO. E012/2025· [2026] KEELC 2164 (KLR)

Cherutich v Cheluk (Environment and Land Case E012 of 2025) [2026] KEELC 2164 (KLR)

Environment and Land Court
17 April 2026
2,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a trespass suit over land boundaries, confirming that boundary disputes must first go to the Lands Registrar before court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kabarnet (Olao J) on a preliminary objection dated 10th December 2025 in a suit by Patrick Kiptoo Cherutich, administrator of the estate of the registered proprietor of Pokor/Keben/Mugurin/113 (50.5 Ha), against Lear Kabon Cheluk, the registered proprietor of the adjoining parcel 112. The plaintiff alleged encroachment and trespass, sought a declaration, permanent injunction, eviction assistance, damages for trespass, profits, costs and interest. The defendant objected that the suit was statute-barred under section 7 of the Limitation of Actions Act and that the plaintiff lacked locus standi because the suit land was subject to succession proceedings. The court dismissed both grounds: trespass is a continuing tort not barred by limitation, and an administrator with a grant has capacity to sue; the probate court cannot determine trespass or boundary issues. However, raising the issue of jurisdiction suo motu, the court found from the pleadings (including the LRA 23 process and the Lands Office's advice to seek court intervention) that the dispute was in substance a boundary dispute. Under section 18(2) and (3) of the Land Registration Act, the court cannot entertain boundary disputes before determination by the Registrar. Applying the Lillian S, Karume and Mumbo exhaustion authorities, the court allowed the preliminary objection, struck out the suit, and ordered the defendant to pay the plaintiff's costs on the basis of her refusal to co-operate with the Lands Office officers.

Key legal issues

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01

Whether a claim of trespass to land is statute barred under section 7 of the Limitation of Actions Act

Holding

No - a claim for trespass cannot be barred by the law of limitation; trespass is a continuing tort

Reasoning

The court held that trespass to land is a continuing violation of the right to possession, creating a fresh cause of action de die in diem as long as the trespass continues, relying on M'Mukanya v M'Mbijiwe, Clerk & Lindsell, Winfield and Jolowicz, and the Court of Appeal decision in Isaack Ben Mulwa v Jonathan Mutunga Mweke. That ground of the preliminary objection was therefore dismissed.

p. 3
02

Whether the plaintiff, as administrator of the deceased registered proprietor, has locus standi where the suit land is subject to succession proceedings

Holding

Yes - as administrator with a grant of letters of administration, the plaintiff has capacity to sue; and the probate court cannot deal with trespass or boundary issues, so the pending succession cause does not oust this court's jurisdiction

Reasoning

The plaintiff obtained a grant in Eldama Ravine PMCC Succession Cause No. 20 of 2020 and the deceased is the registered proprietor, so following Trouistik Union International v Jane Mbeyu and Virginia Edith Wamboi Otieno v Joash Ochueng Ougo he has locus standi. The probate court's primary duty is distribution of the estate and it cannot delve into trespass or boundary disputes, so that ground also failed.

p. 3
03

Whether the court has jurisdiction over a dispute that is in substance a boundary dispute under section 18 of the Land Registration Act

Holding

No - the court lacks jurisdiction and must down its tools; the plaintiff must first exhaust the boundary-determination procedure under section 18 of the Land Registration Act before the Registrar

Reasoning

Although not raised in the preliminary objection, the pleadings showed the dispute was essentially a boundary dispute: the plaintiff had filed LRA 23 for fixing boundaries and the Lands Office advised him to go to court. Under section 18(2) and (3) of the Land Registration Act, the court cannot entertain boundary disputes unless the boundaries have been determined under that section. Raising jurisdiction suo motu and applying the Lillian S and Karume authorities and the exhaustion doctrine, the court struck out the suit.

p. 4

Legal principles established

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  • The tort of trespass to land is a continuing tort giving rise to fresh causes of action from day to day and cannot be barred by the law of limitation
  • An administrator of a deceased's estate has locus standi to sue in respect of land registered in the name of the deceased
  • Where a clear procedure for redress of a grievance is prescribed by statute, that procedure must be strictly followed; a court without jurisdiction must down its tools
  • The court may raise the issue of jurisdiction suo motu even where not raised in a preliminary objection

Court orders

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  1. 1.This suit is struck out
  2. 2.The Defendant shall meet the Plaintiff's cost
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction), read with section 18 of the Land Registration Act on boundary disputes (as discussed in the ruling)

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, "Cherutich v Cheluk (Environment and Land Case E012 of 2025) [2026] KEELC 2164 (KLR)", Case Analysis (2026). ELCLC NO. E012/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2164/eng@2026-04-17

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