Gerald Gacheru Wambugu v Ali Mwapesa & 3 Others

d) An order for the County Land Surveyor to re-survey the Parcel of lands registered Kwale/Diani S.S/5275, 5276, 5277, 5278, 5279, 5280 and 5281 for the purposes of boundary identification and replacement of the beacons which may have been displaced by the Defendants. e) General Damages. f) Costs of the suit. 3. To date, none of the Defendants has entered appearance or filed a statement of defence. Instead, the Defendants through the firm of O G Makowade Advocates filed the notice of preliminary objection dated 29th July 2026 and which is the subject of this ruling. The Notice of Preliminary Objection 4. The Notice of Preliminary Objection raised the following objections: (i) That this Honourable Court lacks the requisite jurisdiction to hear and determine this suit as the as the core dispute and the main relief sought in Prayer (d) of the Plaint relates to boundary identification, resurvey, and re-establishment of beacons over Parcels of land registered as Kwale/Daini S.S/5275, 5276, 5277, 5278, 5279, 5280 and 5281 (ii) That the jurisdiction to conduct boundary identification, resurvey, and replacement of allegedly displaced beacons is an administrative function vested exclusively in the Land Registrar assisted by the County Surveyor under Sections 18 and 19 of the Land Registration Act, and cannot be invoked directly by way of a Plaint in this Court. (iii) That the primary statutory mechanism for resolving boundary disputes before the Land Registrar has not been exhausted, rendering the instant suit premature, frivolous vexatious, and an abuse of the court process. 5. The gist of the Defendants objections basically is that the dispute herein is a boundary determination dispute which is a mandate of the Land Registrar pursuant to Sections 18 and 19 of the Land Registration Act, and this court lack the requisite jurisdiction to determine the same. 6. The preliminary objection was conversed by way of written submissions. The 1st Defendant submissions 7. The 1st Defendant set out two issues for determination being; 2 Ruling ELCLC E062 OF 2024

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a) Whether the objection is based on a pure point of law not requiring the court to ascertain any factual matters b) Whether the Preliminary objection has merit 8. While the referring the court to the celebrated case of Mukhisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696, counsel appreciated that a preliminary Objection must stem from a pure point of law that can dispose of the matter at the threshold, without forcing the court to conduct a trial or delve into contested evidence. Counsel posited that from the face of the Plaintiff’s Plaint, specifically Prayer (d), the plaintiff seeks an order for a resurvey, boundary identification, and reestablishment of beacons over the suit properties, a cause of action that explicitly manifests a boundary dispute. He argued that the mandate to resolve boundary disputes lies with the Land Registrar pursuant to Section 18(2) of the Land Registration Act. 9. As to whether the preliminary objection is merited, counsel referenced the foundational case on jurisdiction, the “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 and submitted that Section 18(2) of the Land Registration Act deprives this Court of original jurisdiction over undetermined boundary disputes, leaving it with no option but to down its tools and strike out the suit. Counsel submitted that this courts jurisdiction in boundary disputes is limited to appeal against the Land Registrar’s decision. 10.Counsel gave reference to the case of Azzuri Limited v Pink Properties Limited [2018] eKLR and Cornelius Silvano Muchilwa & 3 Others v Kenya National Highways Authority [2019] eKLR, and urged the court to sustain the preliminary objection and strike out the plaintiff’s suit with cost. Submission by the plaintiff. 11.The Plaintiff listed 3 issues for determination to wit; a. Whether the 1st Defendant’s Notice of Preliminary Objection meets the legal threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA696 b. Whether this Court has original jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act to hear and determine claims of trespass, eviction, and permanent injunction against unlawful occupiers. 3 Ruling ELCLC E062 OF 2024

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c. Whether Section 18(2) of the Land Registration Act, 2012 applies to oust the Court's jurisdiction in a suit against non-title holding trespassers/squatters. 12.On the 1st issue, took issue with the fact that the 1st Defendant artificially singled out one prayer of the plaint, Prayer (d), to label the suit a "boundary dispute" while in actual sense, this is a claim based on trespass by the defendant and not a boundary dispute between him and any adjoining land owners. He submitted that in an action hinged on the tort for trespass and illegal occupation by illegal settlers, the Court must of necessity examine facts, pleadings, and evidence (such as landownership titles, green cards, and the non-ownership status of the Defendants). Such an examination can only be done at the trial. 13.Counsel gave refence to Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, and Independent Electoral & Boundaries Commission (IEBC)v. Jane Cheperenger & 2 Others [2015] eKLR on the true nature of a preliminary objection. 14.On the 2nd and 3rd issues, the plaintiff’s submission is that he is seeking orders of permanent injunction, order eviction of squatters, award general damages for trespass, and order for police assistance, orders which the land registrar has no jurisdiction to grant. He posits that Section 18(2) LRA only applies where there is a boundary dispute between or among contiguous/adjoining registered owners where the land registrar is called upon to resolve uncertain boundary lines between the neighbor titles. He notes that the Defendants herein are NOT adjacent registered land owners claiming a boundary overlap. They are unlawful trespassers and squatters who entered the Plaintiff's land by force. 15.Counsel argues that Prayer (d) is Purely Ancillary and Consequential seeking survey/re-establishment of beacons displaced/destroyed by the Defendants. Counsel posited that an ancillary/consequential prayer seeking beacon restoration after physical destruction or displacement by trespassers does not convert a tortious action of trespass into an administrative boundary dispute. Reliance was made to Orumoi v. Lelerwe & Another [2025] KEELC 469 (KLR) and Nelly Atieno Oluoch v. Damaris A Nyawalo & 2 Others [2021] KE ELC 2157 (KLR). 16.The plaintiff urged the court to dismiss the preliminary objection with costs. 4 Ruling ELCLC E062 OF 2024

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Analysis and Determination 17.I have carefully read and considered the Defendants’ Notice of Preliminary Objection dated 29th July 2026, and the relevant legal provisions as well as the submissions for the 1st Defendant as well as the plaintiff. 18.The Composite issue for determination is whether the Preliminary Objection dated 29th July 2026 is merited. 19.Without a doubt, a challenge on the jurisdiction of the Court raises a preliminary point of law within the meaning Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696, which must be determined at the earliest opportunity. Where the Court finds that it lacks jurisdiction, it must down its tools. This was stated in the locus classicus case of The Owners of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd (1989) KLR 1. where Nyarangi J.A. held as follows: “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 20.The Supreme Court in the case of Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) rendered as follows: “….. a Court can only exercise jurisdiction that has been donated to it by either the constitution or legislation or both. Therefore, it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 21.The jurisdiction of this Court is derived from Article 162(2) of the Constitution of Kenya and Section 13 of Environment and Land Court Act No.19 of 2011. Article 162(2)(b) establishes this Court with jurisdiction to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. Section 13 of the Environment and Land Court Act further confers upon the Court original and appellate jurisdiction 5 Ruling ELCLC E062 OF 2024

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to hear and determine disputes relating to the environment and land. For clarity, Section 13 states in part; ‘‘13. Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes― (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.’’ 22.Quoted verbatim, the Plaintiff seeks the following reliefs as against the Defendants; ‘‘…the Plaintiff prays for judgment against the Defendants as follows: a) A Permanent Injunction against the Defendants their servants, agents licensees or whoever is acting on their behalf restraining them from trespassing onto, invading, subdividing, remaining upon, and/or interfering with the Plaintiff’s quite possession, occupation and use of his property Kwale/Diani S.S/2694 which he has now sub-divided into Kwale/Diani S.S/5275, 5276,5277, 5278, 5279, 5280 and 5281. b) An order for the Plaintiff’s immediate entry and repossession of the suit properties and eviction of the Defendants along with any other persons in accordance with sections 152A to 152I of the Land Act. c) An order to the Msambweni Sub- County Police Commander, Officer Commanding 6 Ruling ELCLC E062 OF 2024

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Station Diani Police Station, Principal Secretary Interior, Regional Commissioner, Coast Region and Coast Regional Police Commander to provide security and ensure compliance with this Court’s orders. d) An order for the County Land Surveyor to re-survey the Parcel of lands registered as Kwale/Diani S.S/5275, 5276, 5277, 5278, 5279, 5280 and 5281 for the purposes of boundary identification and replacement of the beacons which may have been displaced by the Defendants. e) General Damages. f) Costs of the suit.’’ 23.The basis for the reliefs as can be deduced from the body of the plaint is that the plaintiff is the registered owner of the suit properties, that the defendants are illegal settlers/squatters and that they have displaced/destroyed beacons placed upon the subdivision of the initial parcel Kwale/Diani S.S/2694 into the subdivision titles Kwale/Diani S.S/5275, 5276,5277, 5278, 5279, 5280 and 5281. It is on account of this displacement/destruction that prayer (d) that seeks reinstatement of the displaced/destroyed beacons by the surveyor was made. 24.The question that begs an answer therefore is, having regard to the substance of the pleadings and the reliefs sought, does the dispute falls within the jurisdiction of this court as above set out, by the Constitution and the Environment and Land Court Act or is it a preserve of the Land Registrar under Section 18(2) of the Land Registration Act. 25. Section 18(2) of the Land Registration Act provides for the Land Registrars Mandate in boundary disputes resolution as follows; ‘‘Boundaries (1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel. 7 Ruling ELCLC E062 OF 2024

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(2) 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. (3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are defined under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299).” 26.The import of this provision is that the Land Registrar has jurisdiction in the first instance over disputed boundaries between or among adjoining parcels of land. The section is also clear that the Land Registrar lacks jurisdiction to determine claims of trespass or claims of ownership. Most certainly, the Land Registrar have no powers to issue injunctive reliefs or award damages for trespass, reliefs that the plaintiff herein seeks. 27.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. 28.The Court of Appeal while considering very similar circumstances in the case of David & 5 others v Muswii (Civil Appeal 525 of 2019) [2026] KECA 375 (KLR) (27 February 2026) (Judgment)referred to by the plaintiff held; ‘‘Turning to this appeal, we are completely baffled by the appellants’ so called “preliminary objection.” A reading of the amended plaint and defence leaves no doubt that the respondent’s cause of action is in trespass, that is why he is seeking a permanent injunction to restrain the appellants from entering or remaining in the suit properties and mesne profits, namely compensation from a person in wrongful occupation of another’s land’’ 29.The Court went on to say; ‘‘We have no doubt in our minds that it is the pleadings, rather than the parties’ submissions or assertions from the bar, that disclose or identify a cause of action. A perusal of the plaint in this appeal is sufficient to 8 Ruling ELCLC E062 OF 2024

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indicate beyond contest that the respondent’s cause of action is in trespass.’’ 30.It is beyond peradventure that the Plaintiffs claim is premised on the tort of trespass. He seeks that the defendants be declared trespassers and be permanently injuncted from entering the suit land. He too seeks damages for trespass. The Defendants are not registered owners of any adjoining parcels of land. 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. 31.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. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 28th DAY OF SEPTEMBER 2026. HON. E.G NDERITU L J ELC KWALE In the presence of: Mr Wangombe for the Plaintiff Mr Mwanboza h/b for Mr Ochieng Owande for the Defendant Ms Halima C/A 9 Ruling ELCLC E062 OF 2024

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