[2017] KEELC 2633 (KLR)
The court found that the dispute between the parties was a boundary dispute concerning registered land. Under Section 18(2) of the Land Registration Act, the court is precluded from entertaining such disputes unless the boundaries have first been determined by the Land Registrar. The Plaintiffs failed to provide...
Source-derived case information.
- Citation
- [2017] KEELC 2633 (KLR)
- Parties
- Plaintiff: Alex Muema Kimanzi; Plaintiff: Mutua Michael Kimanzi; Plaintiff: Jane Kamene Kisanga; Defendant: David Kavyu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 29 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Boundary Disputes, Injunctive Relief, Land Registration, Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Muema Kimanzi
Plaintiff
Mutua Michael Kimanzi
Plaintiff
Jane Kamene Kisanga
Plaintiff
David Kavyu
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiffs have established a prima facie case for grant of an interlocutory injunction restraining the Defendant from interfering with the suit properties.
- 2 Whether the court has jurisdiction to entertain the boundary dispute before determination by the Land Registrar as required by the Land Registration Act.
Ratio Decidendi
The court found that the dispute between the parties was a boundary dispute concerning registered land. Under Section 18(2) of the Land Registration Act, the court is precluded from entertaining such disputes unless the boundaries have first been determined by the Land Registrar. The Plaintiffs failed to provide evidence that they had engaged the Land Registrar to determine the boundary dispute. In the absence of a report from the Registrar of Lands, the court could not ascertain who, if anyone, had committed trespass. Consequently, the Plaintiffs had not established a prima facie case with a probability of success, and the application for an interlocutory injunction was dismissed.
Court Disposition
application dismissed with costs
Orders
- The Application dated 7th February, 2017 is dismissed with costs to the Defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 29 OF 2017
ALEX MUEMA KIMANZI .......................................1ST PLAINTIFF
MUTUA MICHAEL KIMANZI ................................2ND PLAINTIFF
JANE KAMENE KISANGA ...................................3RD PLAINTIFF
VERSUS
DAVID KAVYU ...........................................................DEFENDANT
RULING
1. In the Notice of Motion dated 7th February, 2017 the Plaintiffs are seeking for the following orders:
(a) An order of injunction do issue restraining the Respondent by himself or through his agents, servants, employees from entering, encroaching, trespassing, working on, cultivating, cutting down trees or in any other manner whatsoever interfering with land parcels Yatta B2/Kwa Vonza/811, 812, 813 and 814 properties belonging to the Plaintiffs herein pending hearing and determination of this suit.
(b) The Officer Commanding Kwa Vonza Administration Police Post and/or Kitui Police Station do enforce compliance and provide security to the process server.
2. According to the Affidavit of the 1st Plaintiff, the Plaintiffs are the lawful registered proprietors of the suit properties; that the Respondent who is their neighbour has encroached on the suit land and that the Respondent has been unwilling to resolve the boundary dispute as between themselves.
3. In response, the Defendant deponed that his land being Yatta B2/Kwa Vonza/819 borders the Plaintiffs’ land; that it is the Plaintiffs who have trespassed on his land and that the Plaintiffs are now in possession of their land.
4. Both the Plaintiffs’ and the Defendant’s advocates relied on the Affidavits on record.
5. It is not in dispute that the Plaintiffs’ suit properties neighbour the Defendant’s parcel of land.
6. Indeed, what is before the court is a boundary dispute in respect of two parcels of land which are registered under the Land Registration Act.
7. Section 18(2) of the Land Registration Act provides that 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 the Section.
8. Section 18(3) of the Act mandates the Land Registrar to determine any dispute in respect to boundaries that have not been fixed.
9. The Plaintiffs have not annexed any document to show that they engaged the Land Registrar to determine the dispute between them and the Defendant.
10. In the absence of a report by the Registrar of Lands, this court is unable to ascertain who between the Plaintiffs and the Defendant has actually committed the act of trespass.
11. For those reasons, I find that the Plaintiffs have not established a prima facie case with chances of success.
12. In the circumstances, I dismiss the Application dated 7th February, 2017 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30TH DAY OF JUNE, 2017.
O.A. ANGOTE
JUDGE