https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3245

Lichoti (Suing as the Administrator of the Estate of Enock Lichoti Murumwa - Deceased) v Lucinde & 2 others (Environment and Land Case E020 of 2024) [2026] KEELC 3245 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3245 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case E020 of 2024 A Nyukuri, J May 20, 2026 Between Alfred Lubembe Lichoti (Suing as the Administrator of the Estate of Enock Lichoti Murumwa - Deceased) Plaintiff and Fabian Lucinde 1st Defendant Land Registrar Kakamega County 2nd Defendant and Danstone Muchikha Mukofi Interested Party Ruling Introduction 1.On 20th February 2025, this court directed parties to file submissions and address it on the question as to whether this court has jurisdiction to hear and determine this matter. On record are the plaintiff’s submissions dated 10th June 2025 and the 1st defendant’s submissions dated 3rd March 2025. Plaintiffs submissions 2.Counsel for the plaintiff submitted that the original and appellate jurisdiction of this court is provided for in Article 162 (2) (b) of the constitution as read with section 13 of the Environment and Land Court Act. Counsel referred to section 86 of the Land Registration Act and argued that this was not a boundary dispute but a challenge of the decision made by the Land Registrar and that hence this court has jurisdiction to hear and determine the dispute. 3.It was maintained that the only way the dispute herein can be resolved is through an exercise of resurvey which will be able to establish the exact boundaries of the plaintiff’s land, the 1st defendant’s land and the 5 meter road. That this establishment is done, not because there exists a boundary dispute but for granting parties a fair hearing and to do justice in the matter. That the court should overlook the form by which the plaintiff approached court so as to do justice in the matter. 1st defendant’s submissions 4.Counsel for the 1st defendant relied on sections 18 and 19 of the Land Registration Act and submitted that where a boundary dispute arises, it ought to be referred to the Land Registrar in the first instance, before moving to court. 5.It was argued for the 1st defendant that the suit property and that of the 1st defendant are registered under the repealed Land Registration Act and the dispute herein concerns the location of the boundaries of the parcels owned by the plaintiff and the 1st defendant and the access road, hence the same is a boundary dispute within the meaning of section 18 of the Land Registration Act and ought to be determined by the Land Registrar. 6.Reliance was placed on the case of George Kamau Macharia v Dexka Limited [2019] e KLR for the proposition that boundary disputes are to be resolved by the Land Registrar. Analysis and determination. 7.The court has carefully considered the parties’ rival submissions and the only issue for determination is whether this court has jurisdiction to hear and determine this suit. 8.Jurisdiction is the power of the court to hear and determine an issue or a suit. Jurisdiction is everything, and therefore, before a court embarks on determining a dispute, it must first be satisfied that it has the requisite jurisdiction to hear and determine such dispute. 9.In the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1, the court stated as follows;“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.” 10.The jurisdiction of a court flows from the constitution or statute or both and a court cannot arrogate itself jurisdiction it does not have. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court of Kenya held that:“A Court’s jurisdiction flows from either the constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 11.In the instant case, the plaintiff’s complaint as per his plaint dated 15th 0ctober 2024, is that his land parcel No. Isukha/Virembe/1716-1721 (previously 805) borders the 1st defendants parcel No. Isukha/Virembe/1576, with a road separating the two parcels. He sought for cancellation of the survey process conducted on 20th July 2024 and for an order for resurvey to ascertain the five meter access road. He further sought a permanent injunction to restrain the defendants from trespassing on his land. 12.Section 18 of the Land Registration Act bars this court from hearing and determining general boundary disputes and vests such jurisdiction in the Land Registrar. The same provides as follows;“18.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.(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).” 13.Regulation 40 of the Land Registration (General) Regulations (Legal Notice No. 278 of 2017) provides for re-establishing a missing boundary or ascertaining a boundary in a dispute as follows;“Application for re-establishing a missing boundary or ascertainment of a boundary in dispute;1.An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section 18(3) of the Act in Form LRA 23 set out in the Sixth Schedule.2.The Registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for resolution of the dispute if a person has complied with paragraph (1).3.The Registrar shall notify the office responsible for survey of land of the intended hearing of a boundary dispute and require their attendance if a person has complied with paragraph (1).4.In determining a boundary dispute lodged in accordance with paragraph (1), the Registrar shall be guided by the recommendation of the office responsible for survey of land.5.The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs (1) and (2) an opportunity to be heard, make a determination of the dispute and inform the parties accordingly.6.Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notification, appeal the decision to the Court.7.Upon expiry of thirty days, the Registrar shall—a.Cause to be defined by survey the precise position of the boundaries in question;b.File a plan approved by the authority responsible for survey of land containing the necessary particulars; andc.Make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel.8.A dispute for determination of a boundary and or parcel shall, unless in the case of special circumstances, be completed within a period not exceeding six months from the date of filing the application.” 14.From the above provisions, it is clear that disputes relating to general boundaries cannot be resolved in the first instance by this court. The determination of the same are by the Land Registrar, who takes evidence and inspects the locus in quo, with the relevant assistance of the director of surveys so as to ascertain the boundary with precision. 15.Therefore, this court’s jurisdiction can only be invoked where the parties are dissatisfied with the Land Registrar’s decision as the court has no original jurisdiction in regard to boundary disputes relating to general boundaries. 16.In the case of Nzau v Kemei & 2 others (Environment & Land Case 70 of 2023)[2025] KEELC 526 (KLR) (12 February 2025) (Ruling) Neutral citation: [2025] KEELC 526 (KLR), the court held that the Environment and Land court had no original jurisdiction to determine a boundary dispute concerning general boundaries. 17.From the reliefs sought in the plaint, it is clear that the plaintiff seeks for the ascertainment of boundaries of parcel No. Isukha/Virembe/1716 – 1721 in relation to parcel No. Isukha/ Virembe/1576 and the access road separating the two parcels. As the dispute herein is a boundary dispute concerning general boundaries, by dint of provisions of section 18 of the Land Registration Act as read with Regulation 40 of the Land Registration (General) Regulations (Legal Notice No. 278 of 2017), I am persuaded that this court lacks original jurisdiction to determine the dispute herein. 18.The plaintiff’s submissions and reliance on section 86 of the Land Registration Act is misplaced as the dispute is not about a decision of the Land registrar, but a boundary dispute which fall in the purview of section 18 of the Act and not section 86 as argued. In any event, no decision of the Land Registrar has been placed before this court for review, and the case as framed is not seeking a relief envisaged under section 86 of the Land Registration Act. 19.In the premises, this suit is hereby struck out for want of jurisdiction. Regarding costs, section 27 provides that costs are awarded at the court’s discretion and shall follow the event. In this case, the issue of jurisdiction was raised by the court suo motto and not by the defendants. That being the case, I order that each party shall bear its own costs. 20.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF MAY, 2026A. NYUKURIJUDGEIn the presence ofMr. Luvayi for the plaintiffMr. Orute holding brief for Mr. Manyoni for the defendantCourt Assistant: Delphine