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ELCDismissedELCLC Case No. E062 of 2024

Gerald Gacheru Wambugu v Ali Mwapesa & 3 Others

Environment and Land Court
28 September 2026
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear trespass claims against squatters, even when beacons need replacing.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Kwale/Diani S.S/2694, subdivided into parcels 5275-5281, sued four Defendants seeking a permanent injunction against trespass, eviction under Sections 152A-152I of the Land Act, police assistance to enforce orders, a re-survey and replacement of beacons allegedly displaced by the Defendants, general damages and costs. None of the Defendants entered appearance or filed a defence; instead, through O G Makowade Advocates, they filed a Notice of Preliminary Objection dated 29th July 2026 contending that the Court lacked jurisdiction because the core dispute was a boundary identification, re-survey and beacon re-establishment matter vested exclusively in the Land Registrar under Sections 18 and 19 of the Land Registration Act, and that the statutory mechanism had not been exhausted. The 1st Defendant relied on Mukisa Biscuit, Lillian S v Caltex Oil, Azzuri Limited and Muchilwa. The Plaintiff countered that the suit sounded in trespass against non-owner squatters, that Prayer (d) was merely ancillary, relying on IEBC v Cheperenger, Orumoi v Lelerwe, Oluoch v Nyawalo and David & 5 others v Muswii. The court, per E.G Nderitu LJ, framed a single composite issue: whether the objection was merited. It held that the claim was premised on the tort of trespass; the Defendants were not adjoining registered owners; the Land Registrar cannot grant injunctions or damages; and the ancillary survey prayer did not transform the dispute into a boundary dispute. Questions of ownership, occupation, possession, trespass and eviction fall within the ELC's original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. The preliminary objection was dismissed with costs to the Plaintiff.

Questions the Court framed

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

  1. 1.Whether the Preliminary Objection dated 29th July 2026 is merited
  2. 2.Whether this Court lacks jurisdiction because the dispute is a boundary determination dispute reserved for the Land Registrar under Sections 18 and 19 of the Land Registration Act

Key legal issues

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01

Whether the suit is a boundary dispute within the exclusive mandate of the Land Registrar under Section 18(2) of the Land Registration Act

Holding

No. The claim is founded on the tort of trespass against non-owner squatters, not a boundary dispute between adjoining registered owners.

Reasoning

The court examined the substance of the pleadings and reliefs. The plaintiff claims to be the registered owner and sues the defendants as illegal settlers/squatters who destroyed beacons. The defendants are not registered owners of adjoining parcels. Section 18(2) applies to boundary disputes between adjoining registered land, and the Land Registrar cannot grant injunctions or damages for trespass, which the plaintiff seeks.

p. 9
02

Whether Prayer (d) for re-survey and beacon replacement ousts the Court's jurisdiction

Holding

No. The prayer is ancillary and consequential to the trespass claim.

Reasoning

Prayer (d) seeks reinstatement of beacons displaced or destroyed by the defendants' trespass. The court held that such an ancillary prayer does not transform a tortious action into an administrative boundary dispute reserved for the Land Registrar, adopting the reasoning in David & 5 others v Muswii that the pleadings disclose a cause of action in trespass.

p. 9
03

Whether the preliminary objection met the Mukisa Biscuit threshold of a pure point of law

Holding

The jurisdictional challenge was a pure point of law but failed on its merits.

Reasoning

The court accepted that a challenge to jurisdiction raises a preliminary point of law under Mukisa Biscuit and must be determined at the earliest opportunity, citing Lillian S v Caltex Oil. However, having found that the ELC has original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act over trespass, occupation and possession disputes, the objection failed.

p. 5

Legal principles established

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  • The Land Registrar has first-instance jurisdiction over disputed boundaries between adjoining parcels but lacks jurisdiction over trespass, ownership, injunction and damages claims.
  • An ancillary prayer for re-survey and replacement of beacons displaced by trespassers does not convert a trespass claim into a boundary dispute.
  • A court without jurisdiction must down its tools.

Court orders

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  1. 1.The Defendants' Notice of Preliminary Objection dated 29th July 2026 is dismissed
  2. 2.Costs of prosecuting the preliminary objection awarded to the Plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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.

The upshot is that the court do find the Defendants’ jurisdictional objection without merit and dismiss the same. The cost of prosecuting the preliminary objection is awarded to the Plaintiff.
p. 9Final orders - dismissal of preliminary objection and costs
Questions concerning ownership, occupation, possession, trespass, vacant possession, eviction and interference with private land fall within the original jurisdiction of this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.
p. 8Original jurisdiction of the ELC
The fact that the plaintiff also seeks that the surveyor replaced beacons displaced or damaged by the defendants does not transform the dispute into a boundary dispute.
p. 9Ancillary survey prayer does not oust jurisdiction
Jurisdiction is everything. Without it, a Court has no power to make one more step.
p. 5Jurisdiction - Lillian S principle

Issues in the judgment

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minor

Preliminary objection dated 29th July 2026 in a suit filed September 2024; chronology appears anomalous

minor

Judgment refers to parcel numbers variously as 'Kwale/Diani S.S' and 'Kwale/Daini S.S'

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, "Gerald Gacheru Wambugu v Ali Mwapesa & 3 Others", Case Analysis (2026). ELCLC Case No. E062 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6013/eng@2026-09-28

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